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Civil Appeal No. 156(N) of 1976. From the Judgment and Order dated 3.12.1974 of the Allahabad High Court in Writ Petition No. 418 of 1974. Ms. Rachna Gupta and Ms. Rani Chhabra for the Appellant. 729 R. Bana for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. This Civil Appeal by Special Leave is directed against the Judgment of the High Court of Judica ture at Allahabad (Lucknow Bench) dated 3.12.1974. The High Court by a common order disposed of number of Writ Petitions but we are concerned with Writ Petition No. 418/74 filed by Dr. Bhagwan Din Misra who is respondent No. 1 before us. Brief facts of the case are that in the month of August, 1973 an advertisement appeared in the daily Newspaper "National Herald" inviting applications for the post of Reader in 'Linguistics ' in the Department of Hindi of the University of Lucknow. Interview of the candidates was held on 8.4.74 at 3.00 p.m. by a Selection Committee consisting of five members viz. the Vice Chancellor of the University, Dr. K.N. Shukla, Head of the Department of Hindi and Modern Indian Languages Lucknow University, Dr. Bhagirath Misra, Head of the Department of Hindi Saugar University, Saugar, Dr. Harbanslal Sharma, Head of the Department of Hindi, Aligarh Muslim University, Aligarh and Shri Shyam Sunder, Head of the Department of Hindi Bihar University, Muzaffar pur. It may be noted that the three experts from outside as mentioned above were experts in Hindi Literature and not Linguistic experts. The Selection Committee after interview ing the various candidates recommended the name of the appellant, Dr. Triloki Nath Singh for being appointed to the post of Reader Linguistics in Hindi Department and the respondent No. 1, Dr. Bhagwan Din Misra was placed in the second position. Dr. Bhagwan Din Misra, respondent No. 1 filed a writ petition in the High Court inter alia stating that the Selection Committee was not a legally constituted Committee and its recommendation should not be acted upon. The writ petition was contested on behalf of the University as well as by the appellant. The High Court held that the prospectus of the University showed that 'Linguistics ' was a separate subject of study. There were two courses in M.A. Part I and Part II, one in Hindi Language and Literature, and, the other in Linguistics. The High Court observed that even candidates, having passed the B.A. examination in Sanskrit or English, or M.A. Examination in Sanskrit or English were also eligible for admission in M.A. in Linguistics in the Department of Hindi. Linguistics was thus a separate subject of study and even graduates, who might not have passed the 730 B.A. Examination with Hindi, were entitled to be admitted and awarded the degree of M.A. in Linguistics. The Chancel lor under Statute 17 1 of the University was required to nominate experts out of the panel of experts in the subject of 'Linguistics '. The High Court further held that having regard to the fact that 'Linguistics ' was a separate subject of study in the University of Lucknow and the Chancellor had drawn a panel of experts in 'Linguistics ', the nomination of experts out of the panel drawn for the subject of Hindi suffered from a serious legal infirmity, substantially affecting the constitution of the Selection Committee, which could not have been cured under Section 66(a) of the Uttar Pradesh State Universities Act, 1973 (hereinafter as the Act of 1973) and as such the recommendation of the Selection Committee was liable to be quashed. The High Court as a result of the above findings allowed writ petition No. 418/74 and quashed the recommendation of the Selection Committee dated 8th April, 1974 for appoint ment to the post of Reader in 'Linguistics ' in the Depart ment of Hindi. Dr. Triloki Nath Singh has thus filed the present appeal challenging the order of the High Court. We have heard counsel for both the parties. It may be mentioned that the Lucknow University neither filed any appeal against the order of the High Court nor any counsel appeared on its behalf before us. Learned counsel for the appellant contended that under Explanation II to sub section (5) of Section 31 of the Act of 1973 the experts drawn out of the panel of experts in Hindi could make selection of Reader in 'Linguistics ' in the Department of Hindi. It was further contended that in view of the fact that a Reader in 'Linguistics ' was to be appointed in the Depart ment of Hindi as such experts in Hindi Language and Litera ture were also qualified to act as experts for the selection of Reader in 'Linguistics '. Learned counsel tried to seek support from the papers taught for M.A. in Linguistics as well as for M.A. in Hindi in order to convince that some papers were common to both the subjects, and as such there was nothing wrong or illegal in case the experts of Hindi Language and Literature were appointed for the selection of Reader in Linguistics. On the other hand learned counsel for the respondent No.1 supported the Judgment of the High Court. It was sub mitted by him that Linguistics was a separate subject of study for M.A. Part I and Part II and merely because the post of Reader in Linguistics was in the 731 Department of Hindi, it would not make any difference and the experts of Hindi Language and Literature cannot be appointed as experts in the Selection Committee for the selection of Reader in Linguistics. We have considered the arguments advanced by learned counsel for both the parties and have perused the record. There is no controversy between the parties that the pro spectus of Lucknow University Department of Hindi and Modern Indian Languages prescribed the courses of study for M.A. Part I and Part II in the subject of Hindi Language and Literature, and Linguistics separately. The prospectus of Lucknow University, Department of Hindi and Modern Indian Languages prescribed the following courses of study for M.A. Part I and Part II for Hindi Language and Literature and the other for Linguistics M.A. Parts I and II There shall two courses in M.A. Parts I and II one in Hindi Languages and Literature and the other in Linguistics. Students may choose either of these two courses. M.A. part I (Language and Literature) Paper I Prachin Hindi Kavya Paper II Madhyayugeen Kavya Paper III Basic and Modern Indian Language Paper IV History Hindi Literature and Criticism Paper V Adhunik Hindi Gadya M.A. and Part II (Language and Literature) There shall be four papers and a viva voce test. Paper I Linguistics and Historical Grammar of Hindi Paper II Vishesh Kavi Paper III Adhunik Kavya Paper IV Essay or Thesis or Folk Literature. M.A. Part I (Linguistics) Paper I Introduction to the principle of General Linguistics 732 Paper II Phonetics and Phonemics Paper III Descriptive Grammar of Hindi Paper IV Applied Linguistics. M.A. Part 11 (Linguistics) There will be four papers and a viva voce test. Paper I Morphology and syntex Paper II Comparative and Historical Linquisitics with special reference to Indo Aryan and Hindi Language. Paper III Dialectology with special reference Hindi Area. Paper IV Essay or Thesis. The above courses of study show beyond any manner of doubt that Hindi Language and Literature and, Linguistics are two different and separate subjects. It is also impor tant to note that even graduates who have not passed the B.A. examination with Hindi could be admitted and awarded the degree of M.A. in Linguistics. Merely because the Lin guistics is also a subject of study in one paper of Hindi, it cannot be said that Linguistics and Hindi Language and Literature fall under the same subject of study in the University. It is an admitted position that separate Panel of Experts was drawn for the subjects of Hindi and Linguis tics. As the Learned counsel for the appellant has strenuously placed reliance on Explanation II to sub section (5) of Section 31 of the Act of 1973 it is necessary to reproduce the same. Sub Section (5) of Section 31 reads as under: "31.(5)(a) A panel of six or more experts in each subject of study shall be drawn up by the Chancellor after consulting the corresponding Faculty in Indian Universities or such academic bodies or research institutions in or outside Uttar Pradesh as the Chancellor may consider necessary. Every expert to be nominated by the Chancellor under sub section (4) shall be a person whose name is borne on such panel. (b) The Board of each Faculty shall maintain a standing panel of sixteen or more experts in each subject of study, and every expert to be nominated by the Vice 733 Chancellor under sub section (4) shall be a person whose name is borne on the panel. (c) A panel referred to in clause (a) or clause (b) shall be revised after every three years. " Explanation/ For the purposes of this sub section, a branch of subject in which a separate course of study is prescribed for a post graduate degree or for Part I or Part II thereof shall be deemed to be a separate subject of study. Explanation 11 Where the post of teacher to be selected is common to more than one subject of study, the expert may belong to either of such subjects of study. The High Court while considering a similar argument made before it held that Explanation II could be availed of by the Chancellor when he has drawn a fresh panel of experts in each subject of study under sub section (5)(a). The High Court further held that Explanation II cannot be divorced from the substantive provision contained in sub section (5)(a). It cannot stand independently of and separate from the sub section. The Explanation must be read so as to harmonise and clear up any ambiguity in the main sub sec tion. The High Court thus concluded that Explanation II was wholly inapplicable to the instant case and the question had got to be determined whether the experts who constituted the Selection Committee were the experts drawn out of the panel, under Clauses 168 and 169 of the Statutes. The High Court then observed that according to the prospectus of the Uni versity Linguistics was a separate subject of study in the University of Lucknow and the Chancellor had a panel of experts on Linguistics drawn under Statutes 168 and 169, the nomination of experts out of the panel drawn for the subject of Hindi suffered from a serious legal infirmity substan tially affecting the constitution of the Selection Committee which could not have been cured by Section 66(a) of the Act. We are examining the matter in a slightly different manner. Even if the panel already constituted by the Chan cellor prior to the coming into force of the Uttar Pradesh State Universities Act, 1973, is treated as a panel consti tuted under sub section (5)(a) of Section 31 of the Act of 1973 Explanation II does not render any help to the appel lant. We are in complete agreement with the High Court that subject of Hindi Language and Literature and the subject of Linguistics are entirely 734 separate subjects of study. This is clearly borne out from Explanation 1 to sub section (5)(a) of Section 31 of the Act of 1973. Explanation I lays down in a clear manner that for the purpose of this sub section, a branch of subject in which a separate course of study is prescribed for a post graduate degree or for Part I or Part II thereof shall be deemed to be a separate subject of study. The prospectus of the University makes it abundantly clear that separate courses of study are prescribed for M.A. Part I or Part II in respect of Hindi on the one hand and Linguistics on the other. Explanation II lays down that where the post of teacher to be selected is common to more than one subject of study, in that case the expert may belong to either of such subjects of study. The advertisement issued in the present case was placed before us and which clearly made a mention at Serial No. 24 "One Reader in Linguistics in the Depart ment of Hindi". At Serial No. 23 there was a separate men tion "There Readers in Hindi". The qualifications essential for the above posts as mentioned in the advertisement reads as under: "QUAlIFICATIONS: ESSENTIAL: First or high Second Class Master 's Degree and Doctorate in the subject concerned with a good academic record and experience of teaching honours/postgraduate classes for not less than five years and published research work of high standard in the subject concerned. The essen tial degree qualification for the post of Readers in Faculty of Law will be LL.M. degree. " The above provision laying down essential qualifications also goes to show that first or high second class degree and doctorate in the subject concerned was an essential qualifi cation. As already mentioned above posts were mentioned separately for three Readers in Hindi and one Reader in Linguistics in the Department of Hindi. Explanation II could only apply in a case where the post of teacher to be select ed was common to more than one subject of study. Advertise ment no where provided that one Reader in Linguistics in the Department of Hindi was to be selected as common to more than one subject of study. Merely because the post of Reader in Linguistics was required in the Department of Hindi, it cannot be held that such Reader in Linguistics was to teach the subject of Linguistics as well as the subject of Hindi Language and Literature. It may also be noted that from a perusal of the above advertisement alongwith the prospectus of the University clearly goes to show that for the post of 735 Reader in Linguistics it was necessary to have an essential qualification of first or high second class Master 's degree and Doctorate in the subject of Linguistics. Explanation II can apply in a case where one common teacher is to be se lected for more than one subject of study and in that con tingency it provides that the expert may belong to either of such subjects of study. In the case in hand before us the advertisement did not mention that the post of one Reader in Linguistics in the Department of Hindi was common with any other subject of study. Thus the appointment of all the experts in the present case of subject of Hindi for the selection of one Reader in Linguistics in the Department of Hindi was totally wrong and illegal. In view of the discussion made above, we do not find any ground in the appeal to interfere with the Order of the High Court. In the result this appeal fails and is rejected with no order as to costs. R.S.S. Appeal failed.

The respondents instituted a civil suit challenging the election of the office bearers ' of the appellant Society and asked for rendition of accounts. The appellant Society contested the suit on the ground that in view of Sections 23 and 25 of the the suit was barred. The courts below having held that the suit was not barred, the defendant Society filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. A litigant having a grievance of a civil nature has, independently of any statute, a right to institute a suit in the civil court unless its cognizance is either expressly or impliedly barred. The exclusion of jurisdiction of the civil court is not to be readily inferred and such exclusion must be either express or implied. [973A B] K.S. Venkataraman & Company vs State of Madras, ; ; Ganga Bai vs Vijay Kumar and Ors., ; ; Dhula Bhai and Ors. vs The State of Madhya Pradesh and Ors., ; ; referred. Raleigh Investment Company Limited vs The Governor General in Council, [1947] L.R. 74 I.A. 50; cited. The provisions of Section 23 of the Societies Regis tration Act, 1860 are confined to audit and have nothing to do with the relief of rendition of accounts. [976B] 972 3. Section 25 deals with disputes regarding challenge to the eviction of office bearers. The maintainability of dispute within the purview of that Section is hedged with conditions and unless such requirement is fulfilled, a statutory dispute would not be maintainable. [976B] 3.1 In the instant case the action in the Civil Court is by some of the members who perhaps would not satisfy the requirement laid down in Section 25. It cannot be said that Section 25 having provided the pre conditions on the satis faction of which a dispute within the purview of that Sec tion would be maintainable before the Registrar takes away the right of Members of the Society to claim relief other wise outside the purview of Section 25 on the basis of their right to seek remedy for their grievance. It is not the appellant 's contention that the relief claimed is not one which would come within the ambit of Section 9 of the Code of Civil Procedure. Therefore, the bar of Section 25 is not applicable to the facts of the case, and the conclusion reached in the Courts below is correct and the suit is maintainable. [976C E]

Appeal No. 270 of 1955. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1958. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1952. L.K. Jha, A. D. Mathur and R. Patnaik, for the appellant. N.C. Chatterjee, and D. N. Mukherjee, for respondent No. 1. 1961. March 16. The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and J. R. Mudholkar, JJ., was delivered by Mudholkar, J. A. K. Sarkar, J., delivered a separate Judgment, MUDHOLKAR, J. This is an appeal by Special leave and the main point involved in it is whether the Rewa State Pre emption Act, 1949, is unconstitutional on the 360 ground that it places an unreasonable restriction upon the right to acquire property enumerated in cl. (1)(f) of article 19 of the Constitution. But before we hear arguments upon this point it is necessary to dispose of the preliminary objection raised on behalf of ' the plaintiff respondent No. 1 by Mr. N. C. Chatterjee to the effect that the defendant appellant is precluded from proceeding with the appeal because subsequent to the grant. of special leave to appeal, to him he withdrew the price of pre emption which was deposited by the respondent No. 1 in the court below. He contends that by withdrawing the pre emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that, therefore, he cannot be heard to say that the decree is erroneous. In short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate. In support of his contention, learned counsel has relied upon the well known case of Tinkler vs Hilder (1) and other cases which follow that decision or which proceed on the same reason as that in Tinkler 's case (1). Those decisons are: Banku Chandra Bose vs Marium Begum ( 'a); Ramendramohan Tagore vs Keshabchandra Chanda (2); Mani Ram vs Beharidas (3); section K. Veeraswami Pillai vs Kalyanasundaram Mudaliar & Ors. (4); Venkatarayudu vs Chinna (5) and Pearce vs Chaplin (6). The two English decisions just referred to and some of the Indian decisions were considered in Venkata. rayudu vs Chinna (5). Dealing with them Venkatasubba Rao, J., observed as follows: "What is the principle underlying these decisions When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, (1) ; (2) Cal. (4) A.I.R. 1927 Mad. 1009. (1a) (1915] (3) A.I.R. 1955 Raj. (5) (6) ; [1846] 9 Q.B. 802: 361 there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order. . According to Halsbury this rule is an application of the doctrine "that a person may not approbate and reprobate" (13 Halsbury, para 508). . . . In other words,to allow a party, who takes a benefit under such an order, to, complain against it, would be to permit a breach of faith". The view taken in the other cases proceeds on similar reasoning But what has to be noted is that in all these cases the benefit conferred by the order was something apart from the merits of the claim in, volved in these cases. What we are called upon to decide is whether the appellant by withdrawing the pre emption price can be said to have adopted the decree from which he had already preferred an appeal. The appellant did not seek to execute the decree, and indeed the decree did not confer a right upon him to sue out execution at all. The decree merely conferred a right upon the plaintiff respondent No. 1 to deposit the price of pre emption and upon his doing so, entitled him to be substituted in the sale deed in place of the vendee. The act of the appellant in withdrawing the pre emption price after it was deposited by the respondent No. 1 cannot clearly amount to, an adoption by him of the decree which he had specifically challenged in his appeal. Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. How can it be said that a vendee in a pre emption suit against whom a decree is passed takes any "benefit" thereunder? No doubt, he has a right to be paid the pre emption price before the pre emption decree becomes effective but tile price of pre emption cannot be characterised as a benefit under the decree. It is only in the nature of compensation to the vendee for the loss of his property. 46 362 For this reason the principle of the aforesaid decision would not apply to such a decree. A question similar to the one before us had arisen in the Punjab in several cases and in particular in the judgment of Lal Chand, J., in Sundara Das vs Dhanpat Rai (1). What the court held there is that the right of appeal is not forfeited by the vendee merely because he has withdrawn the money deposited by the preemptor in whose favour a decree for pre emption has been passed. No reference is made by the learned judge to the decisions in Tinkler 's case (2) and in Pearce 's, case (3) and, therefore, this decision and other similar decisions are of little assistance in considering the "argument advanced by Mr. Chatterjee. It seems to us however, that in the absence of some statutory provision or of a well recognised principle of equity, no one can be deprived of his legal rights including a statutory right of appeal. The phrase "approbate and reprobate" is borrowed from Scotch Law where it is used to expres the principle embodied in the English doctrine of election, namely, that no party can accept and reject the same instrument (per Scrutton, L. J., in Verschures Creameries vs Hull and Netherlands Steamship. , Co.,(4). The House of Lords further pointed out in Lissenden vs C. A. V. Bosch, Ltd. (5) that the equitable doctrine of election applies only when an interest is conferred as an act of bounty by some instrument. In that case they held that the withdrawal by a workman of the compensation money deposited by the employer could not take away the statutory, right of appeal conferred upon him by the Workmen 's Compensation Act. Lord Maugham, after pointing out the limitations of the doctrine of approbate and reprobate observed towards the conclusion of his speech: "It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents. Neither estoppel nor release in the ordinary sense was suggested. Nothing was less served than (1) (1907] P. R. No. 16. (2) ; (3) ; (1846) 9 Q.B. 802: (4) (5) [1940] A.C 412. 363 the principles either of equity or of justice." (pp. 421 422). Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the "formula" to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from. No doubt, as pointed out by Lord At that in a conceivable case the receipt of a remedy under a judgment may be made in such circumstances as to preclude an appeal. But he did not think it necessary to discuss in what circumstance the statutory right of appeal may be lost and added: "I only venture to say that when such cases have to be considered it may be found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment: and the only conflicting right is the statutory right to seek to set aside or amend that judgment: and that the true solution may be found in the words of Lord Blanesburgh in Moore vs Cunard Steamship Co. (1)". According to Lord Blanesburgh when an order appealed against and later set aside, has been acted upon in the meantime "any mischief so done is undone" by an appropriate order. Thus the only question which has to be considered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable. Thus, according to the House of Lords it is to cases in which a party has so conducted himself as to make restitution impossible or inequitable that the principle on which the decision in Tinkler 's case (2), is. based, may apply. Referring to this case and three other similar cases Lord Atkin observed: "In any case they form very flimsy foundation for such a wide reaching principle applicable to all appeals Its was asserted in this case: and if they did lead to that result should not be followed. 428 429). (3) The Lissenden case has thus in clear terms (1) (2)(1849) 4 Ex 187; ; (3) 364 indicated what the limitations of the Scotch doctrine are. If, therefore, what was laid down in this case is the common law of England according to its highest judicial tribunal, it is only that law which the courts in this country may apply on the principles of natural justice and not what was supposed to be the common law in certain earlier decisions. It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler 's case (1) to cases like the present. In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order. Here the appellant, by withdrawing the preemption price has not taken a benefit de hors the merits. Besides, this is not a case where restitu tion is impossible or inequitable. Further. it seems to us that the existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. In the case before us there was no such choice before the appellant and, therefore, his act in withdrawing the preemption price cannot preclude him for continuing his appeal. We., therefore, overrule the preliminary objection. The appeal will now be set down for hearing on merits. The costs of this hearing will be costs in the appeal. SARKAR, J. It seems to me that the objection to the maintainability of this appeal must succeed. The appellant having taken the benefit of the decree cannot now challenge its validity. The decree was passed in a suit for preemption brought in May, 1951 by the respondent Baijnath, whom I will call the respondent. against the appellant, the purchaser of certain property and the vendors, the other respondents who have not appeared in this appeal. The suit was dismissed by the trial Court but (1) ; 365 on appeal it was decreed by the Judicial Commissioner Vindhya Pradesh, on March 24,1952. The learned Judicial Commissioner held that the respondent had the right of pre emption and that the purchase money payable by him to the appellant for preemption of the property, *as Rs. 3,000 and directed the respondent to pay this sum into court within four months. The respondent duly paid this sum into court. The appellant obtained special, leave from this Court to appeal from the judgment of the learned Judicial Commissioner and thereafter withdrew from court the amount paid in by the respondent. The present appeal arises under this leave. The decree that was drawn up only stated that the appeal was allowed with costs and the period of grace was four months. In view of Or. XX, r. 14, of the Code of Civil Procedure, the decree, in spite of its informality, must be understood as providing that upon the respondent paying the amount found payable as purchase money into court within the time fixed, the appellant would deliver possession of the property to him and his title to it would be deemed to have accrued from the date of the payment into court and that, in default of such payment the suit would stand dismissed with costs. Now, there is not the slightest doubt that in with. drawing the money from court the appellant had acted entirely on his free choice; he had in no way been compelled to do so, nor been induced thereto by any act of the respondent. The respondent had done nothing to put the decree in execution and obtain possession of the property from the appellant. The appellant need not have withdrawn the money if he so liked and that would not in the least have prejudiced his interest. He has all along been in possession of the property since he purchased it on June 7, 1950 and he has been in enjoymeint of the money also sine( he withdrew it from court on November 14, 1953. It seems to me that on these facts the appellant cannot proceed with the appeal. He cannot be permitted to pursue inconsistent courses of conduct. By withdrawing the money, he has of his free choice, 366 adopted the decree and must, therefore, be precluded from challenging its validity. He had no right to the money excepting such as the decree gave him. Having exercised that right he cannot be heard to say that the decree was invalid and, therefore, the right which he had exercised, had never existed. The rule is well established in England as well as in our country, that a litigant is not permitted such inconsistent courses of conduct and, so far as I am aware, never been departed from. As early as 1849 in Tinkler vs Hilder (1), Pollock, C. B., in dealing with a rule to set aside an order said, "It might be discharged simply on this narrow ground, that, under the circumstances of this case, the party applying to set aside the order in question in point of fact has adopted it by taking something under it". In King vs Simmonds (2) and Pearce vs Chaplin (3) the same line of reasoning was adopted. It is true that in these cases the orders were said to have been adopted because costs, for the payment of which they had provided, had been received. It is also true that the orders were not such to which the parties directed to pay the costs, were entitled as a matter of right. But all these do not seem to me to make any difference. The question is, are the circumstances such that it would be inconsistent conduct to accept a benefit under an order and then to challenge it? I should suppose that for this purpose costs are as much benefit as anything else given by the order. Likewise when the orders were discretionary or such to which there was no right ex debito justitiae, there would be no reason to say that there could be no inconsistency if they were challenged after benefits under them had been accepted. For deciding such inconsistency, I am unable to discover that the discretionary nature of the order has any materiality. Coming to more recent times, we get the case of Dexters Ld. vs Hill Crest Oil Co. Ld. There a person, who had taken money under an award made in a commercial arbitration in accordance with which a (1) ; (3) (1846) 9 Q B 802. (2) ; (4) [1926] 1 K.B 348. 367 judgment had been entered in a special case stated to court, was held precluded from appealing from that judgment. This, it will be noticed, was not a case where an order was considered to have been adopted because of receipt of costs given by it but because of the receipt of the sum of money which was claimed and which was given by the award. Scrutton, L. J., observed, (p. 358) "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right". I will conclude the reference to the English authorities by reading what Lord Russel of Killowen said in Evans vs Bartlam (1), "a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit". Of the cases on the point in our country I may refer to Manilal Guzrati vs Harendra Lal (2), Banku Chandra Bose vs Marium Begum (3), Humrybux Deora vs Johurmull Bhotoria (4) and Venkatarayudu vs Chinna (5). Hurrybux Deora 's case (4) was an appeal from a decree in a suit for the redemption of a mortgage. The plaintiff had accepted the amount found by the decree passed by the trial Court to be due to him from the mortgagee in possession and receipt of the income of the mortgaged property, and had thereafter filed the appeal asking that he was entitled to more. Rankin, C. J., who delivered the judgment of the Court, held that there was no inconsistency in the conduct of the appellant and the rule 1 had so long been discussing had, therefore, no application. This was plainly right. The appellant had accepted the decree passed and in the appeal did not challenge its correctness so far as it went but only contended that it had not gone far enough. As has been said, he was not blowing hot and cold but only blowing hotter: see per Greer, L.J., in Mills vs Duckworth (6). Referring to King vs Simmonds (7), Pearce vs Chaplin (8) and Tinkler vs Hilder (9) which I have earlier (1) , 483.(2) (3) (5) 32 1. (7) ; (1846) 9 Q.B. 802. (9) (1849) 4 Exc 1187: ; 368 cited, Rankin, C.J., said (p. 714) that they "are clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite, Party at whose instance the order was made". He was of the view that this basis did not exist in the case which he had before him. Rankin, C.J., also referred to another old English case, namely, Kennard vs Harris (1). , There, a rule to set aside an award of an arbitrator was discharged when it was shown that the party who had obtained the rule had accepted the costs of the reference and the award. Rankin, C.J., said with reference to this case that (p. 713), "A person who accepts costs payable under an award or any other sum of money given to him by an award is held to be precluded from asking the Court to set aside the award". He however also observed that An award is bad unless it deals with the whole matter submitted and prima facie cannot be set aside in part only". It may be that Rankin, C.J., was making a distinction, which is obviously correct, between an award which can be set aside only as a whole because it is one and indivisible and a judgment which might be in severable parts in which case, the adoption of a part by a party would not preclude him from challenging another part which was independent. Rankin, C.J., did not think, and if I may say so with respect, correctly, that the principle of Kennard vs Harris (1) had any application to the facts of the case before him, for, there no part of the judgment was sought to be challenged by the appeal, excepting perhaps an independent part which by implication rejected the appellant 's claim to a larger sum. In Venkatarayudu 's case (2), Venkatasubba Rao, J., after discussing various cases, to some of which I have referred, observed, (p. 141) "What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, (1) ; (1824) 2 B. & C. 80; (2) 369 a person cannot adopt one part and repudiate another". It seems to me beyond doubt that the principle of these cases is applicable to the facts of the present appeal. Here we have a decree which is one and indivisible. The effect of it is that upon the respondent paying the money into court he would be entitled to the property and to obtain possession of it and the appellant would be entitled to withdraw the money. The appellant has no right to the money whatsoever independent of the decree; he had no right to compel the respondent to purchase the property from him on payment of a price. Indeed the appellant had been contending that the respondent was not entitled to purchase the property from him by paying the price. The appellant could have drawn out the money only on the basis that the decree had been properly passed. Therefore, by withdrawing the money he adopted its correctness and cannot now say it is incorrect. It seems to me that the observation of Venkatasubba Rao, J., in Venkatarayudu 's case (1) (P. 141) that " to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith", would apply fully to the conduct of the appellant. So would the observations of Rankin, C. J., in Hurrybux Deora 's case (2) on King vs Simmonds (3), Pearce vs Chaplin (4) and Tinkler vs Hilder (5). The present is a case where the appellant was seeking to challenge an order after accepting the benefit of a term or condition, that is to say, as to the payment of money into court, imposed upon the respondent at whose instance the order was made; that the obligation to pay money was a term or condition 'imposed upon the respondent is manifest because the decree provided that if the money was not paid, the suit would stand dismissed with costs. Again the judgment in the present case is like an award for it is one whole and cannot be set aside in parts. Therefore what (1) (3) ; (2) (4) (1846) 9 Q.B. 802. (5) ; 47 370 Rankin, C. J., said in regard to Kennard vs Harris which turned on an award, namely, that a person who accepts costs or a sum of money given to him by an award cannot ask to have it set aside, would also be applicable. I find it impossible to conceive that this judgment consists of several parts or that such parts are severable. The learned counsel for the appellant was able to refer us to only one case in support of his contention that the appeal could be proceeded with and that was Sunder Das vs Dhanpat Rai (2). That was also a case of pre emption. There, however, the plaintiff who had obtained the decree for pre emption in his favour, had executed that decree and obtained possession of the property concerned. The defendant appealed from the decree but was unsuccessful. in the first appellate court. He then appealed to the Chief Court at Lahore and when the appeal was pending there, withdrew the purchase money paid into court by the plaintiff under the decree of the trial Court. The Chief Court held that this (lid not preclude the defendant from proceeding with the appeal before it. The facts of that case were substantially different from those before us. It may be said that the defendant having been compelled to part with the property, was justified in withdrawing of the money from the court and that a withdrawal in such circumstances did not amount to an adoption of the decree. That cannot be said in the present case. Whether on the facts, Sunder Das 's case (2) was rightly decided or not, is not a matter on which I feel called upon to express any opinion. If however that case intended to lay down a principle which would warrant the appellant on the facts of the case in band in proceeding_ with this appeal, I am unable to agree with it. It would then be in conflict with all the authorities on the point and none of these was noticed in the judgment, in that case. I do not think that Sunder Das 's case (2) is of sufficient authority to warrant a departure from the principle uniformly followed by the courts. (1) ; (2) 1907 P.R. No 16. 371 It is necessary, however, before I conclude, to refer to the comparatively recent case of Lissenden vs C. A. V. Bosch Ltd. (1). That was a case in which a workman who had been awarded compensation for partial incapacity up to a certain date accepted the compensation so awarded and thereafter preferred an appeal claiming that compensation should have been awarded to him beyond that date and so long as he should be incapacitated. The Court of Appeal feeling itself bound by its earlier decision in Johnson vs Newton Fire Extinguisher Company (2) had held, somewhat reluctantly, that the workman having accepted money under the award could not challenge its validity by an appeal. In Johnson 's case (2), it appears to have been held that a workman could not. accept part of an award and claim to amend another part for that would be an attempt to "approbate and reprobate" the award and this could not be allowed. The House of Lords in Lissenden 's case (1) held that Johnson 's case (2) had been wrongly decided and that the workman before it was entitled to proceed with the appeal. The reason for, this view was that acceptance by the workman of what had been found to be due to him does not operate to prevent him from appealing for some further relief. The case therefore was the same as that before Rankin, C. J., in Hurrybux Deora vs Johurmull Bhotoria (3). The substance of the decision of the House of Lords was that there was no inconsistency between the appeal and the adoption of the award. That however cannot be said in the case before us now. The House of Lords also pointed out that the Court of Appeal had misunderstood the doctrine against " approbating and reprobating". It was said that that was a doctrine of Scottish law which in England had been held by High authorities to be equivalent to the equitable principle of election. It was observed that that equitable principle depended for its application on the intention of the executant of an instrument and was, therefore, not applicable to a case like the (1) [1940) A.C. 412. (2) (3) 372 one the House of Lords had before it. It was also pointed out that the common law principle of election had no application either for, it depended on the h existence of two rights or remedies, one alone of which could be chosen and in the case of an appeal there were no two rights or remedies. I do not think the observations of the House of Lords on the doctrine against "approbating and reprobating" affect the question before us. All the learned Judges who delivered opinions in the case, including Lord Atkin, who expressed himself with some reservation, accepted tile position that a litigant may lose his right of appeal by reason of his conduct after the judgment or award for, by such conduct he may be estopped from appealing or may be considered in equity or at law as having released his right of appeal: see p. 420,429, 430 and 434. Lissenden 's case (1) does not, therefore, in my view throw any doubt on the principle that a litigant may be precluded from proceeding with an appeal if that would be inconsistent with his previous conduct in regard to the decree challenged by the appeal. It seems to me that the courts in England have taken the same view of Lissenden 's case (1). In Baxter vs Eckersley (2) the Court of Appeal expressly approved of the principle laid down in Dexter 's case(3). In Banque Des Marchands De Moscou vs Kindersley (4) Evershed, M. R., referring to the phrases "approbating and reprobating" and "blowing hot and blowing cold" said at p. 119, "These phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and, second, that he will not be regarded, at least in a case such as the present, as having so elected unless lie has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his pre sent action is inconsistent". These two cases, it will be observed, were decided after Lissenden 's case (1). All these authorities leave no doubt in my mind that the rule preventing inconsistent conduct is firmly (1) (3) (2) (4) 373 established. I think, for the reasons earlier mentioned, that the rule is properly applicable in the present case and the appellant cannot be allowed to proceed with the appeal. I wish however to make it clear that the applicability of the rule will depend on the facts of each case; it will depend on whether there has been actual inconsistency. I have found that there has been adoption in the present case and the prosecution of the appeal will result in the conduct of the appellant becoming inconsistent. That is, all that I decide. Before leaving the case, I think I ought to observe that the fact that the appellant had withdrawn the money after he had obtained leave from this Court makes no difference to the applicability of the principle. It was by such withdrawal that he adopted the decree and thereafter he is precluded from proceeding with the appeal. There is as much inconsistency in the present case as there would have been, if the appellant had withdrawn the money before he had obtained the leave. For these reasons I would dismiss the appeal with costs. By COURT: In accordance with the majority judgment, the preliminary objection is overruled. The appeal will now be set down for hearing on merits. Preliminary objection overruled. Appeal set down for hearing.

The appellant entered into a contract with the respondent for the sale of certain canvas at Re. 1 per yard under which the delivery was to be made through railway receipt for Calcutta for Kanpur. The cost of transport from Kanpur to Calcutta and the labour charges in that connection were to be borne by the respondent and it was agreed that the railway receipt would be delivered on August 5, 1947. The appellant was unable to deliver the railway receipt on the due date because booking from Kanpur to Calcutta was closed, and, therefore, cancelled the contract. The respondent instituted a suit for the recovery of damages for the breach of the contract and claimed that as the seller knew that the goods were to be sent to Calcutta and must therefore be presumed to know that the goods would be sold in Calcutta, any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Held: (1) that it is well settled that the two principles relating to compensation for loss or damage caused by breach of contract as laid down in section 73 Of the , read with the Explanation thereof, are (i) that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed, but (ii) that there is a duty on him of taking all reasonable steps to mitigate the loss consequent on the breach and debars him from claiming any part of the damage which is due to his neglect to take such steps. British Westinghouse Electric and Manufacturing Company, Limited vs Underground Electric Railway Company of London, , relied on. (2) that the contract in the present case was for delivery for. Kanpur in which it was open to the buyer to sell the goods where it liked, and no inference could be drawn from the mere fact that goods were to be booked for Calcutta that the seller knew that the goods were for resale in Calcutta only. The contract was therefore not of the special type to which the words "which the parties knew, when they made the contract, 654 to be likely to result from the breach of it" appearing in section 73 of the , would apply, but an ordinary contract, for which the measure of damages would be such as "naturally arose in the usual course of things from such breach" within the meaning of that section. The damages would be the difference between the market price in Kanpur on the date of breach and the contract price. But as the respondent bad failed to prove the rate for similar canvas in Kanpur on the date of breach, it was not entitled to any damages as there was no measure for arriving at the quantum. Chao and others vs British Traders and Shippers Ltd., , relied on. Re. R and H. Hall Ltd. and W.P. Pim (junior) & Co. 's Arbi tration, and Victoria Laundry (Winsdsor) Ltd.v. Newman Industries Ltd., , distinguished.

ition (Criminal) No.1451 of 1985 Under Article 32 of the Constitution of India. Petitioner in person. Harbans Lal. Tapas Ray, D.K. Sinha, J.R. Das, Girish Chander, Ms. Subhashini, Pramod Swarup, D. Bhandari, C.V.S. Rao, B.D. Sharma, D.N. Mukherjee, R. Mukherjee, A.V. Rangam. T.V. Ratnam, S.B. Bhasme, A.S. Bhasme and A.M. Khanwilkar for the Respondents. The order of the Court was delivered by MISRA J. We made an Order on 12th July, 1986 issuing various directions in regard to physically and mentally retarded children as also abandoned or destitute children who are lodged in various jails in the country for 'safe custody '. We also directed the Director General of Doordarshan as also the Director General of All India Radio to give publicity seeking cooperation of non governmental social service organisations in the task of rehabilitation of these children. We were extremely pained and anguished that these children should be kept in jail instead of being properly looked after, given adequate medical treatment and imparted training in various skills which would make them independent and self reliant. Some years ago we came out with a National Policy for the Welfare of Children which contained the following preambulatory declaration: "The nation 's children are a supremely important asset. Their nurture and solicitude are our responsibility. Children 's programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physi cally fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice. " If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality. That 565 is why all the statutes dealing with children provide that child shall not be kept in jail. Even apart from this statutory prescription, it is elementary that a jail is hardly a place where a child should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society. It is a matter of regret that despite statutory provisions and frequent exhortations by social scientists, there are still a large number of children in different jails in the country as is now evident from the reports of the survey made by the District Judges pursuant to our order dated 15th April, 1986. Even where children are accused of offences, they must not be kept in jails. It is no answer on the part of the State to say that it has not got enough number of remand homes or observation homes or other places where children can be kept and that is why they are lodged in jails. It is also no answer on the part of the State to urge that the ward in the jail where the children are kept in separate from the ward in which the other prisoners are detained. It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail. We would therefore like once again to impress upon the State Governments that they must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial. On no account should the children be kept in jail and if a State Government has not got sufficient accommodation in the remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail. The problem of detention of children accused of an offence would become much more easy of solution if the investigation in the police and the trial by the Magistrate could be expedited. The reports of survey made by District Judges show that in some places children have been in jail for quite long periods. We fail to see why investigation into offences alleged to have been committed by children cannot be completed quickly and equally why can the trial not take place within a reasonable time after the filing of the charge sheet. Really speaking, the trial of children must take place in the Juvenile Courts and not in the regular criminal courts. There are special provisions enacted in various statutes relating to children providing for trial by Juvenile Courts in accordance with a special procedure intended to safeguard the interest and welfare of children, but, we find that in many of the States there are no Juvenile Courts functioning at all and 566 even where there are Juvenile Courts, they are nothing but a replica of the ordinary criminal courts, only the label being changed. The same Magistrate who sits in the ordinary criminal court goes and sits in the Juvenile Court and mechanically tries cases against children. It is absolutely essential, and this is something which we wish to impress upon the State Governments with all the earnestness at our command, that they must set up Juvenile Courts, one in each district, and there must be special cadre of Magistrates who must be suitably trained for dealing with cases against children. They may also do other criminal work, if the work of the Juvenile Court is not sufficient to engage then fully, but they must have proper and adequate training for dealing with cases against Juveniles, because these cases require a different type of procedure and qualitatively a different kind of approach. We would also direct that where a complaint is filed or first information report is lodged against a child below the age of 16 years for an offence punishable with imprisonment of not more than 7 years, the investigation shall be completed within a period of three months from the date of filing of the complaint or lodging of the First Information Report and if the investigation is not completed within this time, the case against the child must be treated as closed. If within three months, the chargesheet is filed against the child in case of an offence punishable with imprisonment of not more than 7 years, the case must be tried and disposed of within a further period of 6 months at the outside and this period should be inclusive of the time taken up in committal proceedings, if any. We have already held in Hussainara Khatoon & Ors. vs Home Secretary, State of Bihar, [1979] 3 SCR 169 that the right to speedy trial is a fundamental right implicit in article 21 of the Constitution. If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Court for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless, of course, the trial is held up on account of some interim order passed by a superior court or the accused is responsible for the delay in the trial of the case. The consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right. One of the primary reasons why trial of criminal cases is delayed in the courts of Magistrates and Additional Sessions Judges is the total inadequacy of judge strength and lack of satisfactory working conditions for Magistrates and Additional Sessions Judges. There are courts of Magistrates and Additional Sessions Judges where the workload is so heavy that it is just not 567 possible to cope with the workload, unless there is increase in the strength of Magistrates and Additional Sessions Judges. There are instances where appointments of Magistrates and Additional Sessions Judges are held up for years and the courts have to work with depleted strength and this affects speedy trial of criminal cases. The Magistrates and Additional Sessions Judges are often not provided adequate staff and other facilities which would help improve their disposal of cases. We are, therefore, firmly of the view that every State Government must take necessary measures for the purpose of setting up adequate number of courts, appointing requisite number of Judges and providing them the necessary facilities. It is also necessary to set up an Institute or Academy for training of Judicial officers so that their efficiency may be improved and they may be able to regulate and control the flow of cases in their respective courts. The problem of arrears of criminal cases in the courts of Magistrates and Additional Sessions Judges has assumed rather disturbing proportions and it is a matter of grave urgency to which no State Government can afford to be oblivious. But, here, we are not concerned with the question of speedy trial for an accused who is not a child below the age of 16 years. That is a question which may have to be considered in some other case where this Court may be called upon to examine as to what is reasonable length of time for trial beyond which the court would regard the right to speedy trial as violated. So far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, we would regard a period of 3 months from the date of filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and a period of 6 months from the filing of the charge sheet as a reasonable period within which the trial of the child must be completed. If that is not done, the prosecution against the child would be liable to be quashed. We would direct every State Government to give effect to this principle or norm laid down by us in so far as any future cases are concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of chargesheet and if a chargesheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed. We have by our order dated 5th August 1986 called upon the State Government to bring into force and to implement vigorously the 568 provisions of the Children 's Acts enacted in the various States. But we would suggest that instead of each State having its own Children 's Act in other States. it would be desirable if the Central Government initiates Parliamentary Legislation on the subject, so that there is complete uniformity in regard to the various provisions relating to children in the entire territory of the country. The Children 's Act which may be enacted by Parliament should contain not only provisions for investigation and trial of offences against children below the age of 16 years but should also contain mandatory provisions for ensuring social, economic and psychological rehabilitation of the children who are either accused of offences or are abandoned or destitute or lost. Moreover, it is not enough merely to have legislation on the subject, but it is equally, if not more, important to ensure that such legislation is implemented in all earnestness and mere lip sympathy is not paid such legislation and justification . for non implementation is not pleaded on ground of lack of finances on the part of the State. The greatest recompense which the State can get for expenditure on children is the building up of a powerful human resource ready to take its place in the forward march of the nation. We have already given various directions by our orders dated 12th July 1986 and 5th August 1986. We have also in the meantime received reports of survey made by several District Judges. We shall take up these matters for consideration at the next hearing of the writ petition which shall take place on 1.9.1986.

The deceased was the Karta of a Hindu undivided family. He had two sons. He gave his first son in adoption to his divided paternal uncle. He was joint with his second son throughout his life. He took out a personal accident insurance policy with the Insurance Company and effected a nomination in favour of his first son. During the currency of the policy, the deceased died following the crash of the airliner in which he had travelled, and the Insurance Company paid the nominee a sum of Rs.2 lakhs, the benefit stipulated 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 copartner in his joint family which consisted of himself and his second son. In the assessment proceedings under the , the accountable persons urged before the Deputy Controller of Estate Duty: (i) that the amount of Rs.2 lakhs could not be aggregated with the rest of the properties, but must be brought to charge independently as a separate estate in itself, because the deceased had no interest at all in the insurance money, and (ii) that the adoption in 1931 was on the basis that notwithstanding adoption into another family, the adoptee must continue to retain his interest in the properties belonging to the family of his birth and, therefore, he was entitled, as on the date of the de 316 ceased 's death, to an equal interest in the deceased 's family properties, so that the quantum of the deceased 's coparcenary interest was not one half but only one third of the total value of the family properties. A "Muri" (deed of adoption) that was executed was produced in this regard. The Deputy Controller rejected these contentions and held: (i) that the personal accident insurance money of Rs.2 lakhs paid by the Insurance Company should be charged to estate duty and it had to be aggregated with the rest of the properties passing on the deceased 's death; (ii) that the insurance money of Rs.2 lakhs was property which the deceased was competent to dispose of by will; (iii) that the deceased did have an interest in the insurance money; (iv) that the deceased 's interest in the coparcenary property, which had to be included in the dutiable estate, extended to one half share of the joint properties on the basis that the deceased and his second son were alone entitled as coparceners to the said properties; (v) that the document produced in support of the plea of adoption was not genuine and even otherwise it had no legal effect on the continued rights of the adopted son in the family of his birth subsequent to his adoption. He, therefore, included in the dutiable estate, one half of the joint family properties as being the measure of the deceased 's coparcenary interest. The accountable persons appealed against the above assessment to the Central Board of Revenue. The Board held: (i) that the insurance money of Rs.2 lakhs was chargeable to estate duty under section 6; (ii) that the deceased had interest in the insurance money; (iii) that the deceased did have the power of disposition over the insurance money both by the exercise of power of nomination under the policy and also independently by the exercise of any testamentary power; (iv) that the Hindu law of adoption makes the adopted son lose his property interests in the family of his birth and that the "dwyamanushyana" form of adoption had become obsolete in Madras, and no such custom was prevailing in the Nattukottai Chettiar community, under which the adopted son never loses his property rights in the family of his birth and, therefore, upheld the assessment of one half of the value of the whole of the joint family property as the measure of the deceased 's dutiable interest. On reference, the High Court held that as the deceased was competent to dispose of the monies payable under the accident policy, the sum of Rs.2 lakhs was includible in the principal value of the estate but the same was not liable to be aggregated with the other properties and 317 had to be assessed as an estate by itself and that the type of adoption pleaded by the accountable person was recognised by the custom of the Nattukottai Chettiar community, the terms of the 'muri ' formed part of the adoption and the adoption could not be considered de hors the agreement and hence the deceased had only one third share in the joint family properties at the time of his death. R In the appeal to this Court, on behalf of the accountable persons it was contended: (i) that it was a condition 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 contingent; (c) but that interest should be with regard to either an immovable property or a movable property which was capable of being ascertained during the lifetime or at the time of the death of the estate holder; (d) a contingent interest could fall within the purview of the Act only if the interest of a tangible nature and was capable of being ascertained (ii) that there had to be a passing of property or interest as contemplated by section 2(16). There has also to be a change in the beneficial possession and enjoyment of property of the interest in that property; (iii) that an accident insurance policy could not be construed as a movable property unlike a life insurance policy or an annuity since a person who possessed it could not also be said to have a contingent interest because there was every possibility of the accident policy getting extinguished or rendered worthless during his lifetime; (iv) that in the case of a life insurance policy, there is always a tangible continuing interest only that the value of that interest might be subjected to a change at the time of passing of the property; (v) that it was not necessary that during the lifetime of the deceased the property in question should have 'attained ' the full value e.g. 'Annuity '. Only a future interest that crystalised after the death of the estate holder; (vi) that since the benefit in accident policy could only accrue after the death of the estate holder, it became property for the first time after the demise of the estate holder. Allowing the appeal by the accountable persons and dismissing the appeal of the Revenue, the Court, G ^ HELD: 1.1. Under the personal accident insurance policy in question the insurance money became property only on happening of a specified contingency. That property arose on the death of the deceased during the subsistence of the accident policy. The property is the sum of Rs.2 lakhs which became receivable by the nominee or the legal rep 318 resentative of the deceased because of the death of the deceased in the 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. The property came into being on that contingency after death. No property can, therefore, be deemed to pass on the R death of the deceased. [342D F] 1.2 During the lifetime of the deceased, an interest was vested totally and irretrievably in the hands of the beneficiary or the legatee or the nominee. The death did not cause property to change hands. The fact that a person can nominate a beneficiary will not tantamount to a disposition of the property. [342F G] 1.3 Whether a particular custom prevails in a particular community or not is a matter of evidence. [343C] 2.1 Section 5 of the provides 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 a person. 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. [326F] 2.2 Section 3(1)(a), (b) & (c) provides for certain situations in which a person is deemed competent to dispose of property. Section 6 deals with property within disposing capacity and provides that property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death. [327A B] 3.1 It was a condition 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 contingent but interest should be that with regard to which either immovable property 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 contingent must be one which was capable of being ascertained. Even if these tests were satisfied then there has to be a passing of that property or interest as contemplated 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 319 of the deceased or at the time of his death. There had to be a change in A 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. [340B E] 3.2 Though the deceased might have a right of disposition as and when the property would be available in case the contingency 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. [340E F] 3.3 An accident insurance policy cannot be construed as a movable property unlike a life insurance policy or an annuity because as laid down in section 2(15) of the Act it is not only necessary for the 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 f movable property. Secondly, an accident insurance policy could not be construed as a property or an interest in property since a person who possessed it cannot also be said to have a contingent 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 continuing interest only that the value of that interest might be subjected to change at the time of passing of the property. [340H; 341A C] 3.4 A contingent interest which did not 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 of the Act. The accident policy could 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 no element of property during the lifetime of the estate holder. [341C D] 3.5 The interest in an accident insurance policy did not pass through the estate of the deceased as in the case of a life insurance policy or annuity and in the instant case, the interest directly went to the beneficiaries in the case of death by accident of the estate holder. [341E] 3.6 In the instant case, the property is really born on the death of the deceased in an accident. The sum of Rs.2 lakhs was non existent before the death. There might have been some right of disposition in 320 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 Rs.2 lakhs that is taking place. [340F G] Attorney General vs Quixley, 1929 All England Reports Reprint 636 and Controller of Estate Duty vs A.T. Sohani, New Delhi, , distinguished. Controller of Estate Duty vs Kasturi Lal Jain, and Controller of Estate Duty, Patiala vs Smt. Motia Rani Malhotra, I.T.R. 42, approved. Bharatkumar Manilal Dalal vs Controller of Estate Duty, Gujarat, , over ruled. Westminster Bank Ltd. vs Inland Revenue Commissioners = 16 I.T.R. (ED) 3, Smit. Amy F. Anti vs Assistant Controller of Estate Duty, Bombay , P. Indrasena Reddy & Pingle Madhusudhan Reddy vs Controller of Estate Duty, , Shri H. Anraj etc. vs Government of Tamil Nadu etc. , Smt. Sarabati Devi & Anr. vs Smt. Usha Devi, 1984(1) SCR 992 and Public Trustee vs Inland Revenue Commissioners, [1960] A.C.398, referred to.

il Appeal No. 212 of 1975. (Appeal by Special Leave from the Judgment and Order dated 26 6 1974 of the Kerala High Court in A.S. No. 510/72). L.N. Sinha, Sol. of India, Shaymla Pappu and Girish Chandra for the appellant. A.S. Nambiar for the respondent. The Judgment of the Court was delivered by BEG, J. The Union of India and the Commander, Officer incharge, Naval Base, Cochin, are the appellants before us by grant of special leave against a judgment and decree of a Division Bench of the High Court of Kerala. The Division Bench had affirmed the decision of a learned subordinate Judge awarding Rs. 25,000/ as damages, together with inter est @ 6% per annum, to the plaintiff respondent for the illegal termination of the respondent 's services. The plaintiff respondent was serving as a Welder, Grade II, in the Civilian Defence Forces at the Naval Base, Cochin, at the time of this allegedly illegal termination of service by an order of 25th October, 1968, of the Govt. of India, Ministry of Defence. Special leave was granted on condition that the appel lants Will bear the costs of the respondent in any event. The point of law sought to be canvassed before us is: Does the doctrine that a Central Govt. servant holds his post "at the pleasure of the President", contained in Article 310 of the Constitution, authorise the passing of an order of termination of services, without assigning any reason what soever, of the holder of a post "connected with defence ?" There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of pun ishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certain tests. The Subordinate Judge had awarded only Rs. 25,000 . out of a claim of Rs. 75,000/ made on the ground that, but for illegal termination of the service of the plaintiff respond ent, the plaintiff would have continued in service upto the age of 60 years and duty promoted instead of being thrown out of service at the age of 41. The plaintiff respondent alleged that the termination of his service, without giving any reason whatsoever, was contrary to, rules made under Article 309. A glance at paragraph 4 of the plaint shows that the violation of rules 89 relating to conduct of disciplinary proceedings was alleged by the petitioner. In paragraph 5 of the plaint, however, he alleged: "As per the terms of appointment and the rules governing the service of the petitioner,, he is entitled normally to continue in service till the age of 60. If his service had not been terminated as per the impugned order, the petitioner would have been entitled to continue for a further period of 19 years and 8 months". He proceeded to assert: "Due to the illegal termination, the peti tioner had lost a valuable right vested in him by virtue of his appointment and guaranteed by the Constitution of India and the rules framed thereun der namely a right to continue in service for the full period of 19 years and 8 months and thus to gain a livelihood for himself and his family". A perusal of the judgment of the Division Bench shows that the only point really considered by it was whether the pleasure of the President mentioned in Article 310 of the Constitution, can over ride rules made under Article 309 of the Constitution. The High Court had explained away a passage cited from State of U.P. & Ors., vs Babu Ram Upadhya(1) by observing that it did not support the argument that rules made under Article 309 of the Constitution did not control the pleasure of the President, under Article.310, which was to be subject to matters otherwise expressly provided in the Constitution. The passage so explained away runs follows :. "If there is a specific provlsion in some part of the Constitution giving to a Government servant a tenure different from that provided for in article 310, that Government servant is excluded from the operation of article 310. The said words refer, inter alia,, to articles 124, 148, 218 and 324 which provide that the Judges of the Supreme. Court, the Auditor General, the Judges of the High Courts and the Chief Election Commissioner shall not be re moved from their offices except in the manner laid down in those Articles. If the provisions of the Constitution specifically prescribing different tenures were excluded from article 310, the purpose of that clause would be exhausted and thereafter the Article would be free from any other restrictive operation. In that event, article 309 and 310 should be read together, excluding the opening words in the latter Article, namely, "Except as expressly provided by this Constitution". Learned Counsel seeks to confine the operation of the opening words in article 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants:, namely articles 146(2), 148(5) and 229(2). That may:be so, but there is no reason why article 310. should (1) A.I.R. 1961 S.C. 751. 8 1003 SCI/76 90 be excluded therefrom. It follows that while article 310 provided for a tenure at pleasure of the President or the Governor, article 309 enables the legislature or the executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impinging upon the overriding power recognised under article 310". The Kerala High Court relied on Union of India vs J. N. Sinha & Anr.,(1) to hold that doctrine of office held at the pleasure of the President was subject to rules made under Article 309 of the Constitution, and pointed out that it was held, inter alia, by a Division Bench of this Court (at p. 42): "A Government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Consti tution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Art.311 ". The High Court also relied on State of Madhya Pradesh & Ors. vs Shardul Singh,(2) where the same Division Bench of this Court had held inter alia (at p. 111 ): "Article 310(1) of the Constitution declares that every person who is a member of Civil service of a State or holds any civil post in a State holds office during the pleasure of the Governor of a State. But the pleasure doctrine embodied therein is subject to the other provisions in the Constitu tion. Two other Articles in the Constitution which cut down the width of the power given under Article 310 (1) are Articles 309 and 311. Article 309 provides that subject to the provisions of the Constitution acts of the appropriate Legislature may regulate the, recruitment, and conditions of service of persons appointed, to public. services and posts in connection with the affairs of the Union or of any State. Proviso to that Article says: 'Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection 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 connection with the af fairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services 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 ." The High Court then referred to N. Ramanatha Pillai vs State of Kerala & Anr. ,(3) a decision of 5 learned Judges of this Court, in which Ray CJ., speaking for the Constitution Bench of this Court, (1) A.I.R. 1971 S.C. 40. (2) at 111. (3) ; at 2645. 91 while considering the power of the Govt. to create, continue, and abolish a post said (at p. 2645): "Article 309 provides that subject to the. provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruit ment and conditions of service of persons appoint ed, to public services and posts in connection with the affairs of the Union or of any State. There fore, Acts in respect of terms and conditions of service of persons are contemplated. Such Acts of Legislature must however be subject to the provi sions of the Constitution. This attracts Article 310 (1). The proviso to article 309 makes it compe tent to the President or such person as he may direct in the case of services and posts in connection 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 con nection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed,, to such services and posts under the Union and the State. These Rules and the exercise of power conferred on the delegate: must be subject to Article 310. The result is. that Article 309 cannot impair or affect the pleasure of the ' President or the Gover nor therein specified. Article 309 is, there fore, to be. read subject to Article 310". The High Court, after citing the passage set out above, said: "We do not understand the above passage as suggesting that Article 310 cannot in any manner be controlled by Rules framed under Article 309". After a consideration of decisions of this Court in this manner it expressed its views as follows: "These cases, we think, sufficiently indicate that while it may be open to the PreSident or to the Governor to dismiss a civil servant at pleas ure, if Rules have been framed under Article 309 of the Constitution to regulate the mode and manner of termination of service, these .have to be com plied with. This, we think, is reasonable and understandable enough on first principles. If the untrammelled pleasure of the President has been subjected to Rules framed by the President himself in regard to the manner of termination of service, the pleasure must be subject to such Rules". The Division Benh of the High Court then re corded its conclusion: "We are therefore of the opinion that in the instant case, the Civil Services (Classification, Control and Appeal) Rules, having been framed under Article 309 of the Constitution, the same had to be followed before the respondent 's service was terminated. The same not having been admittedly complied with, the finding of the ' Court below that the termination is illegal was correct and requires no interference. No arguments were addressed on the quantum of damages awarded". 92 We do not think that the difficulty before the High Court could be resolved by it by following what it consid ered to be the view of a Division Bench of this .Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that in each of the cases cited before the High Court, observations of this Court occur in a con text different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court That is the practice followed by this Court itself. The practice has now crystallized into a rule of law de clared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view. we have perused the Central Civil Service (Classifica tion, Control and Appeal) Rules of 1965, (hereinafter re ferred to as '1955 Rules ') which deal principally with procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. There is no rule there dealing with the conditions under which a service such as that of the plaintiff respondent may be terminated. We fail to see any rule made under Article 309 of the Constitution which was violated by the impugned order of termination of service of the plaintiff respondent. We do not consider ourselves called upon to. decide a ques tion which has really not arisen in the case. before us. The 1965 Rules are applicable when disciplinary proceed ings are taken. They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the services of a person covered ' by these rules are terminated. The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311 of the Constitution. And, as the opening words of Arti cle 310 show, the doctrine of office held at the pleasure of the ' President does not apply to cases covered by Article 311. Rule 3 of the above mentioned rules begins. as follows: "3. Application. (l ) These rules shall apply to every Government servant including every civilian Government servant in the Defence Serv ices, but shall not apply to (a) any railway servant, as defined in rule 102 of volume I of the Indian Railway Establishment Code, (b) any member of the All India Services, (c) any person in casual employment, (c) any person in casual employment, (d) any person subject to discharge from service on less than one month 's notice. (e) any person for whom special provision is made, in respect of matters covered by these rules, by or under 93 any law for the time being in force or by or under any agreement entered into by or with the, previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions; (2) Notwithstanding anything contained in sub rule (1), the President may by order exclude any class of Government servants from the operation of all or any of these rules. (3) Notwithstanding anything contained in sub rule (1), or the Indian Railway Establishment Code, these rules shall apply to every Government servant temporarily transferred to a Service or post coming within exception (a) or (e) in sub rule (1 ), to whom, but for such transfer, these rules would apply. (4) If any doubt arises (a) whether these rules or any of them apply to any person, or (b) whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President, who shall decide the same". Even if the parties were governed by these rules, because the plaintiff held a civil post in one of the Defence; Departments, yet there must be some violation of one of these rules, which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution, before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise. We fail to see such a conflict here. These rules merely lay down procedure for matters cov ered by Article 31 l of the Constitution. There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure con tained in Article 310 of the Constitution. But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all. There is no finding that any punishment was imposed upon the plaintiff respondent. It may be that mere termination of service, when the plaintiff.respondent was holding a perma nent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment. But, in that event,, there had to be a finding on the rule or order under which the plaintiff was entitled to continue in serv ice. until he reached the age of 60 years. The High Court had cited no rule made under. Article 309 to show that there was any such provision. In P.L. Dhingra vs Union of India(1) Das, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47): "It has already been said that where a person is appointed substantively to a permanent post in Government service. (1) ; at 47. 94 he normally acquires a right to hold the post until under the rules, he attains the age of superannua tion or is compulsorily retired and in the absence of a contract, express or implied, or a service rule,. he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or. other disqualifications and appropriate proceedings are taken under the service rules read with article 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant 's rights and brings about a premature end of his employ ment". The propositions laid down in Dhingra 's case (supra) by this, Court mean that, unless a legally justifiable ground is made out for the termination of the service of a Govern ment servant. in permanent service, in the sense that he is entitled to remain in service until he ' reaches the age of retirement, he could be deemed in a given case to be pun ished by an apparently innocent order of termination of service. If, however, the respondent belonged to a class of government servants the tenure or conditions of whose serv ice was subject to the over riding and unqualified sway of the power to terminate his services at will, by reason of Article 310(1) of the Constitution, we doubt whether he could claim to be a "permanent" servant, who could continue, as of right, in service until he reaches the age of super annuation. At any rate, he could not be a "permanent" Government servant of the same class as one protected by Article 311. Even if we were to hold that the plaintiff respondent was constructively punished, the provisions of Article 311, unfortunately, do not apply to such a Government servant as the respondent was. Whereas the power contained in Article 310 governs all Government servants, including those in the services connected with defence, the benefits of Article 311, which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts "connected with defence". Constitution Bench of this Court has held, after a review of relevant authorities, this to be the position of the. holder of a post such as that of the plaintiff respondent in L. R: Khurana vs Union of India. (1) As the plaintiff respondent was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disci plinary proceedings had been taken against him as the holder of a post "connected with defence". In other eases of such servants,. where no such disciplinary proceedings are instituted (and none were started against the plaintiff respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punish ment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khurana 's case (supra). (1) ; 95 We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these .Articles could not be in voked against a discrimination made by Constitutional provi sions, no such case was set up earlier. We cannot permit it at this stage. The only ground on which the respondent had assailed the order of termination of his service was non compliance of 1965 Rules, which meant ' that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal must succeed. Consequently, we allow this appeal, set aside the judgment and decree of the High Court and ,dismiss the plaintiff 's suit. But: in the circumstances of the case, the appellant will, in keeping with the undertaking given at the time of grant of special leave, bear the costs of both sides throughout. Appeal allowed.

The respondent terminated the appellant 's services on the ground of habitual absence which is a misconduct under the company 's standing orders. Although there was a dispute pending before the Tribunal, the respondent did not make an application under section 33(2)(b) of the Industrial Disputes Act for its approval. On an application by the appellant under section 33A of the Act, the Tribunal ordered his reinstatement. A few months after the appellant rejoined duty the respondent terminated his services purporting to act under the agreement of service with him. On a complaint by the appellant under section 33A, the Tribunal ordered his reinstatement. A single Judge of the High Court dismissed the writ petition of the respondent holding that the discharge was nothing but dismissal for misconduct. On appeal, the Division Bench held that since the employer invoked the terms of the agreement, it was not a case of discharge for misconduct and as such the Tribunal had no jurisdiction to entertain the complaint under section 33A. Allowing the appeal. ^ HELD: The Tribunal has not committed any error of law or of jurisdiction in entertaining the application under section 33A and the Single Judge was right in not interfering with the award under Article 226 of the Constitution and the Division Bench was wrong in doing so. [641H; 641E] (a) The Tribunal has found as a fact that the termination was on account of misconduct of the employee. It is, therefore, difficult to hold that there was any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, was not within the four corners of the various misconducts mentioned in the standing orders. [641H] (b) Standing orders only describe certain cases of misconduct and they cannot be exhaustive of all the species of misconduct. Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action. [641F] (c) Termination simpliciter under the conditions of service or under the standing orders is outside the scope of section 33 of the Act. This does not mean that the employer has the last word about the termination of service of an employee. It is also not a correct proposition of law that in case of a complaint under section 33A, the Tribunal would be debarred from going into the question whether notwithstanding the form of the order. in substance, it is an action of dismissal for misconduct and not termination simpliciter. [642 A B] Management of Murgan Mills Ltd. vs Industrial Tribunal, Madras and Another ; , held inapplicable. Air India Corporation, Bombay vs V. A. Rebellow & Anr. ; , referred to. 636 Shyamala Studios vs Kannu Devar (S.S.) and Others, and Sri Rama Machinery Corporation (P) Limited, Madras vs Murthi (N.R.) and Others, , partly approved. (d) Section 33(2)(b) makes it obligatory upon the employer to make an application to the Tribunal under the proviso when he discharges or dismisses the workman for misconduct. From the provisions of section 33, it is manifest that punitive action of the employer in whatever form it may be passed, is permissible against an ordinary workman as distinguished from a protected workman even during the pendency of proceedings before the Tribunal provided that the employer pays one month 's wages and also applies to the concerned Tribunal for approval of his action. Since the action is punitive, namely, dismissal or discharge for misconduct, the Tribunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised. If the procedure of fair hearing has been observed, the Tribunal has to find in an application under section 33 that a prima facie case is made out for dismissal. If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established. [641E; 640H] (e) In the instant case even though the employer invoked the agreement for terminating the service of the employee it was open to the Tribunal to pierce the veil of the order and have a closes look at the circumstance and come to a decision whether the order was passed on account of certain misconduct. This is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse. [643F]

Appeal No. 75 of 1952. Appeal from the Judgment and Order dated the 16th January, 1951, of the High Court of Judicature at Calcutta (Harries C.J. and Banerjee J.) in Income tax Reference No. 46 of 1950. C. K. Daphtary, Solicitor General for India (G. N. Joshi with hum) for the appellant Joshi with him N. C. Chatterjee (P. K. Sen Gupta, with him) for the respondent. April 17. The Judgment of the Court was delivered by PATANJALI SASTRI C.J. This is an appeal from a judgment of the High Court of Judicature at Calcutta answering a reference under section 66 A of the Indian Income tax Act, 1922 (hereinafter referred to as the Act) in favour of the respondent herein. The respondent carries on business as selling agents of the Bengal Potteries Ltd., and he was prosecuted under section 13 of the Hoarding, and Profiteering Ordinance, 1943, (Ordinance No. XXXV of 1943) on a charge of selling goods at prices higher than were reasonable in contravention of the provisions of section 6 thereof. It appears that, before the prosecution was launched in August, 1944, respondent 's business premises were searched and a part of his stock was seized and taken away. The respondent defended the case, spending a sum of Rs. 10,895, and the prosecution ended in an acquittal on February 16, 1945. In his assessment to income tax for the year 1945 46, the respondent claimed the deduction of the Said sum of Rs. 10,895 from the profits of his business under section 10(2) (xv) of the Act. The Income tax Officer 93 716 disallowed the claim but the Appellate Assistant Com missioner allowed it, and his decision was confirmed by the Income tax Appellate Tribunal, Calcutta Bench. Thereupon, the Commissioner of Income tax, West Bengal, applied to the Tribunal to state a case for decision by the High Court under section 66 A of the Act, and the Tribunal accordingly referred the following question to that Court for its decision Whether in the circumstances of this case the Tribunal was right in holding that the sum of Rs. 10,895 spent in defending the criminal,proceeding was an expenditure laid out or expended wholly and exclusively for the 'purpose of business as contemplated by section 10(2) (xv) of the Indian Income tax Act ? In dismissing the appeal preferred by the Income tax Officer, the Tribunal observed: "It may be stated straight off that it has not been established by any material that the conviction in cases like this may end in imprisonment. The question that personal liberty was likely to be jeopardised therefore will not be considered by us. . . In any case, in the absence of any material in this particular case that personal liberty was likely to be jeopardised, all that we can say is that there was a chance of conviction in which the respondent might have been fined. No doubt, the element of saving himself from the fine, if any, might be there, but it is so inextricably mixed up with the main purpose for the defence that we are prepared to ignore that little element. In our opinion, the defence was solely for the purpose of maintaining his name as a good businessman and also to save his stock from being undersold if the Court held that the prices charged by the respondent were unreasonable. " In the order made on the reference Harries C. J. (with whom Banerjee J. concurred) remarked: "In every criminal prosecution where the matter is defended to protect the good name of a business or a professional man, the fear of possible fine or 717 imprisonment must always be there. But the Tribunal have pointed out that this was so inextricably mixed up with the protection of the good name of the business that it can well be found that the money ' spent in defence in the criminal prosecution wag spent solely and exclusively for the purpose of the business. The finding is a finding of fact and is binding upon us." The learned Judges proceeded to refer to a ruling of the Bombay High Court J. B. Advani vs Commissioner of Income tax(1) and held that the respondent satisfied both the tests laid down there as applicable in such cases : He was charged with regard to a transaction which took place in the ordinary course of business and he was charged in his capacity as a trader. "If these two tests were satisfied and the Court came to the conclusion that the primary object of incurring the expenditure was to protect the good name of business, then it could be said that the expenditure was wholly and exclusively for the purposes of the business". The learned Judges accordingly answered the question referred to them in the affirmative. They, however, granted a certificate under section 66 A (2) of the Act that the case is a fit one for appeal to this Court. We are unable to agree that the finding of the Tribunal, to which reference has been made, is binding on the Court as a finding of fact and is decisive of the reference. The finding of the Tribunal is vitiated by its refusal to consider the possibility of the criminal proceeding terminating in the conviction and imprisonment of the respondent. As has been stated, the respondent was prosecuted under section 13 which provides: "Whoever contravenes the provisions of this Ordinance shall be punishable with imprisonment for a term which may extend to five years or with fine or with both. " The respondent was charged with contravention of section 6, which by sub sec tion (1) prohibits the sale by a dealer or producer of an article for a consideration which is unreasonable (1) [1950] is I.T.R. 557. 718 and sub Section (2) defines "unreasonable consideration". The framers of the Ordinance thus appear to have regarded the offence as one calling for a deterrent punishment in view of its antisocial character, and it is idle to suggest that it is for the Income tax authorities to prove in such cases that the conviction might result in a sentence of imprisonment and that$ in the absence of such proof, there was, at the most, only a chance of conviction and fine. We cannot appreciate the remark that "even this chance of con viction and fine was so inextricably mixed up with the main purpose of the defence that it could, be ignored. " A finding arrived at on this line of reasoning is obviously vitiated by a serious misapprehension regarding the risk involved in a prosecution under the Ordinance and it cannot be regarded as binding on the Court in dealing with the reference. If, as the High Court realised, in every criminal prosecution where the matter is defended to protect the good name of a business or a professional man, the fear of possible fine or imprisonment must always be there, it must ordinarily be difficult for any Court to say, that the expenses incurred for the defence, even if they are not to be regarded as the "personal expenses" of the person accused, constituted "expenditure laid out or expended wholly and exclusively for the purposes of the business". Learned counsel for the respondent frankly admitted that he was not able to find a single case in the books where the expenses incurred by, a person exercising a trade or profession in defending a criminal prosecution, which arises out of his business or professional activities, were allowed to be deducted in the assessment of his profits or gains for income tax purposes. Reference was made in the course of argument to numerous cases where legal expenses incurred in civil litigation, arising out, of matters incidental to the carrying on of a business, were allowed as, a deduction in the computation of its profits, e.g.Commissioner of Income tax vs Maharajadhiraj of Darbhanga(1), where (1) (1942) L.R. 69 I.A. 15. 719 the Privy Council held that law charges incurred in defending an action brought against a money lender for damages for conspiracy, misrepresentation and breach of contract to advance sufficient funds to finance e a company were allowable as business expenditure. In that class of case, no question could arise as to the primary or secondary purpose for which the legal expenses could be said to have been incurred as in the case of a criminal prosecution where the defence cannot easily be dissociated from the purpose of saving the accused person from a possible conviction and imposition of the prescribed penalty. Nor are we satisfied, as at present advised, that a distinction drawn in the Bombay case(1) between the legal expenses of a successful and unsuccessful defence is sound. The deductibility of such expenses under, section 10(2) (xv) must depend on the nature and purpose of the legal proceeding in relation to the business whose profits are under computation, and cannot be affected by the final outcome of that proceeding. Income tax assessments have to be made for every year and cannot be held up until the final result of a legal proceeding, which may pass through several courts, is announced. For the reasons indicated we allow the appeal and answer the question referred in the negative. The appellant will be entitled to his costs both here and in the Court below. Appeal allowed.

The respondent was a firm carrying on business in different lines. It was assessed to income tax under section 23(4) of the Income tax Act, 1922 for the assessment year 1949 50 on the ground that notices issued under section 22(2) and (4) had not been complied with. Later on, that assessment 412 was cancelled. However, before the cancellation, it was found that an interest income of Rs. 88,737 in the shape of U.P. Encumbered Estates Act Bonds received by the respondent from third parties had escaped assessment as the assessee failed to disclose the same. The Income tax Officer issued a notice for the assessment year 1949 50 on the ground that a sum of Rs. 88,737 had escaped assessment in the said assessment year. After the cancellation of the assessment made under section 23(4), the Income tax officer, ignoring the notice issued by him under section 34(1)(a), included that amount in the fresh assessment made by him for the year 1949 50.The respondent appealed to the Appellate Assistant Commissioner who ordered the deletion of the sum of Rs. 88,737 from the assessment for the year 1949 50 and directed the same to be included in the assesment for the year ending 1948 49. Pursuant to the direction given, the Income tax Officer served a notice on the respondent under section 34(1). Against that notice the assessee filed a writ petition in the High Court for quashing the above mentioned proceeding on the ground that these were initiated beyond the time prescribed by a. 34. The High Court accepted the petition and quashed the notice on the ground that it was issued by the appellant beyond the ordinary period of limitation It also overruled the contention of the appellant that no period of limitation governed the notice in as much as the second proviso to section 34(3) was attracted to the facts of the case. The only direction which the Appellate Assistant Commissioner could give was one which was covered by section 31 of the Act and as the appeal before him was confined to a particular assessment year, the direction must necessarily be limited to a matter falling within that year. if the direction be treated as based on a finding recorded by Appellate Assistant Commissioner, that finding would have to be disregarded when applying the proviso. The appellant came to this Court by special leave. Held: (per B. P. Sinha, C.J., K. Subba Rao and N. Rajagopala Ayyangar JJ.). The proviso to sub section (3) of section 34 of the Indian Incometax Act, 1922 does not save the time limit prescribed under sub section (1) of section 34 in respect of an escaped assessment of a year other than that which is the subject matter of appeal or revision as the case may be and hence the notice under section 34(1)(a) issued in the present case was clearly barred by time. The jurisdiction of the High Court or the Supreme Court under section 66 or section 66(b) is a limited one and is confined only to the questions referred to them. Moreover, the questions referred by Tribunal cannot exceed its jurisdiction. Therefore the assessment or reassessment made under the said sections or Pursuant to the orders or directions made thereunder must necessarily relate to the assessment of the year under review, revision or appeal as the case may be. 'Me proviso to sub section (3) of section 34 does not confer any fresh power upon the Income tax Officer to make assessment in respect of the escaped incomes without any time limit. It only lifts the ban of limitation in respect of certain assessments made under certain provisions of the Act and the lifting of the ban cannot be so construed as to increase the jurisdiction of the tribunal Under the 413 relevant sections. The lifting of the ban was only to give effect to the orders that may be made by the appellate, revisional or reviewing Tribunal within the scope of its jurisdiction. If the intention was to remove the period of limitation in respect of any assessment against any person, the proviso would not have been added as proviso to sub section (3) which deals with completion of an assessment but would have been added to sub section (1) of section 34. The word 'finding ' covers only the material questions which arise in a particular case for decision by the authority hearing the. case or the appeal which, being necessary for passing the final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing. The expression 'direction ' refers to a direction which the appellate or revisional authority is empowered to give under the law. The expression "any person" must be confined to a person intimately connected with the assessment of the year under appeal or revision. Held: per Raghubar Dayal and J. R. Mudholkar JJ. (dissenting): That the notice was not in contravention of the provisions of section 34 and hence could not be quashed on that ground. When an appeal is before an appellate authority, the whole matter is at large before it and there fore when a specific case is put before it by an assessee, it has both the power as well as the duty to give its finding thereon. The ground given by an assessee for claiming a reduction or annulment of assessment may be that the income upon which he had been assessed was not earned in the accounting period of the year to which the assessment pertained but in respect of a specified earlier or later year. The appellate authority is entitled to go into the whole question and come to a finding one way or the other. The finding of a tribunal is its conclusion on a point agitated before it and for a conclusion to amount to a finding, it is not necessary that it should be the final and ultimate conclusion. The contention of respondent that the second proviso to a. 34(3) enabling a notice to issue only to assessee in respect of escaped income without limit of time on the ground that the appellate authority has made a finding or direction in the proceeding before it makes a discrimination against such assessee because it does not lift the bar of limitation with regard to other assessees similarly situated but with regard to whom no finding has been made or direction given by appellate authority, was rejected. It was held that prima facie, there was a reasonable basis for the classification. The ground on which classification was made had a rational relationship with the object which was intended to be achieved by law, ie., to detect and bring to assessment the escaped income. Commissioner of Income tax vs section M. Chitnavis, (1932) L.R. 59 I.A. 290, Sir Kikabhai Premchand vs Commissioner of Income tax (Central), Bombay, pt. Hazart Lal vs Income tax Officer, Kanpur. Lakshman Prakash vs Commissioner of Income 414 tax, U.P., , A. section Khader Ismail vs Income tax Officer, Salem, (1963)48 I.T.R. 16, Simrathmul vs Additional Income tax Officer, Ootachamund, (1959)36 I.T.R. 41, Brindaban Chandra Basak vs Incometax Officer, , K. C. Thomas, First Income tax Officer. Bombay vs Vasant Hira Lal Shah , Prashar & Anr. V. Sasantsen Dwarkadas 49 I.T.R. (S.C.) 1, Kamlapat Hotilal vs Income tax Officer, , Hiralal Amrit Lal Shah vs K. C. Thomas, Income tax Officer, Bombay, , General Construction and Supply Co. vs Income tax Officer (8th) C Ward, Bombay, , Suraj Mal Mohata & Co. vs A. V. Visvanatha Sastri ; , A. Thangal Kunju Mudaliar vs M. Venkatachalam Potti & Anr. ; and Palaji vs Income tax Officer, Special Investigation Circle ; , referred to.

Civil Appeal No. 1038 of 1973. Appeal by certificate from the Judgment and Order dated the 19th February 1973 of the Calcutta High Court in Appeal from Original Order No. 200 of 1971. section Chowdhuri, P.P. Ginwala, T.A. Ramachandran and D.N. Gupta for the Appellants. V.S. Desai, Champt Rai and Miss A. Subhashini for Respondents No. 1 & 2. The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by certificate under Article 133 of the Constitution arises out of a writ petition filed by the appellants under Article 226 of the Constitution of India before the High Court of Calcutta. The appellants are partners of a firm of Solicitors known as M/s. Orr Dignam & Co. having its office at Calcutta. The appellants acted as the Solicitors of a German Corporation known as Ferbwerke Hoechst Aktiengesellschaft Vormals Mester Lucius & Bruning (a Corporation organised under the law of Federal Republic of Germany) (hereinafter referred to as 'the German Corporation ' ) in two suits filed on the Original Side of the Calcutta High Court one Suit No. 511 of 1962 filed by the Bengal Chemical and Pharmaceutical Works Ltd. against German Corporation and another Suit No. 1124 of 1962 filed by the German Corporation against the Bengal Chemical and Pharmaceutical Works Ltd. on the alleged infringement of a patent. The appellants were instructed by a firm of Solicitors in London namely M/s. Ashurst, Morris, Crisp & Co. (hereinafter referred to as 'the London Solicitors ') who were also acting for the German Corporation by a cable dated May 31, 1965 to retain in the said suits Mr. Blanco White Q.C., a resident of the United Kingdom, who was a barrister having considerable practice in the branch of patent law. On his arrival in India, the appellants accordingly retained Mr. Blanco White as the counsel to argue the case of their clients the German Corporation even though they did not deliver any briefs to him and also did not 390 pay or undertake any obligation to pay any fees for his services. The briefs had been earlier delivered by the London Solicitors. It is stated that they did not know as to how much amount was payable to him by the London Solicitors by way of fees. The hearing of one of the said two suits lasted for thirteen days commencing from January 27, 1970 and was concluded on February 16, 1970. Mr Blanco White left India on February 17, 1970 after the hearing was over without making any arrangement regarding the payment of income tax on the fees earned by him by arguing the case of the German Corporation. Thereafter on February 19, 1970, the appellants received a notice from the Income tax Officer, 'A ' Ward, Foreiga Section asking them to furnish information about the fees earned in India by Mr. Blanco White as counsel engaged by them to argue the case of their clients i.e. the German Corporation and also drawing their attention to the liability arising under section 195 (2) of the Income tax Act, 1961 (hereinafter referred to as 'the Act ') which required them to deduct the tax payable under the Act at source on payments made to a non resident. The appellants sent a reply to that letter on February 24, 1970 stating that Mr. Blanco White had been engaged by the London Solicitors of the German Corporation to appear before the Calcutta High Court on behalf of the German Corporation and that they had neither briefed him nor had they incurred any liability to pay him any fees. They, therefore, denied their liability under section 195(2) of the Act. Incidentally it may be stated here that the appellants referred to one other suit i. e. Suit No. 422 of 1963 on the file of the Calcutta High Court filed by the German Corporation against Albert David Ltd. in which also Mr. Blanco White had been engaged for the German Corporation. Thereupon by a letter dated February 27, 1970 the Income tax Officer informed the appellants that he proposed to proceed against them under section 163 (1) of the Act treating them as the agents of Mr. Blanco White on the ground that the income in question had arisen on account of the business connection that existed between the appellants and Mr. Blanco White. To this, the appellants sent a long reply dated March 10/11, 1970 denying their liability to be proceeded against under section 163 (1) of the Act. In the course of the said reply, the appellants contended inter alia that they had not either engaged or briefed Mr. Blanco White in the three suits on the file of the Calcutta High Court; that they had not paid or promised to pay any fees lo him and that, therefore, no income had accrued to Mr. Blanco White on account of any business connection that existed between them and Mr. Blanco White. The appellants further contended that as Mr. Blanco White was a 391 barrister who was not carrying on any business but had only, rendered professional service in Calcutta, the connection if any, could not be a business connection. They also questioned the jurisdiction of the Income tax Officer to make any assessment treating them as the representative assessees of Mr. Blanco White. The Income tax Officer by his letter dated March 25, 1970 rejected the plea of the appellants and called upon them to appear before them on April 18, 1970 to make any other submission that they had to make. Thereafter the appellants filed a petition under Article 226 of the Constitution before the High Court of Calcutta and obtained a rule nisi on May 25,1970) calling upon the Income tax Officer, the Commissioner of Income tax West Bengal and the Union of India to show cause as to why the proposal to initiate proceedings under the Act as stated above should not be quashed and a writ in the nature of mandamus prohibiting them from proceeding against the appellants under section 163(1) of the Act should not be issued. The petition was contested by the respondents. In the Counter Affidavit filed by the Income tax Officer, it was asserted that the Department had received information that Mr. Blanco White had charged Rs. 17,000/ per day by way of fees for appearing in the Calcutta High Court in the suits referred to above; that Mr. Blanco White was not domiciled in India; that inasmuch as his stay in India did not exceed ninety days it was not necessary for him to obtain a Tax Exemption Certificate for leaving India; that the appellants had acted as instructing Solicitors to the German Corporation in the three suits in which Mr. Blanco White had argued as counsel; that he could not have, according to the Calcutta High Court Rules (Original Side) appeared before that court unless he was instructed by an Attorney of that Court was in the instant case happened to be the appellants and that, therefore. there existed a business connection which brought the appellants within the scope of section 163(1) of the Act. It was also contended by the respondents that the petition was premature as the matter had still to be decided in accordance with the procedure prescribed by the Act. The learned Single Judge who heard the petition was of the view that the question whether the case came within the purview of section 163(1) had to be determined after ascertainment of facts by the Income tax Officer and that therefore, the petition was liable to be dismissed on the ground that it was a premature one. Accordingly he dismissed it without expressing any opinion on the merits of the case. Aggrieved by the decision of the Single Judge, the appellants preferred an appeal before the Division Bench of the Calcutta High Court. The Division Bench dismissed the appeal holding, inter 392 alia, that from the facts disclosed before the Court it appeared that from May 31, 1965 upto February 16, 1970 there was business connection (directly of indirectly through correspondence) between the appellants firm and the non resident British counsel, Mr. Blanco White, that it could not be said that there was no element of continuity and that the transaction was a solicitory and isolated one and that taking into account the surrounding circumstances and particularly the relationship between the Solicitors and a counsel, an agency could very well be said to have been established between the appellants ' firm and the non resident British counsel, Mr. Blanco White. The Division Bench further held that there was business connection between them and that it was not possible to accept the contentions of appellants that no income either accrued or arose to Mr. Blanco White in India. The appeal was accordingly dismissed. On a certificate granted by the Division Bench under Article 133 of the Constitution, the appellants have come up in appeal to this Court against the judgment of the Division Bench of the High Court. It should be stated here that alongwith the petition for a certificate under Article 133 of the Constitution, the appellants filed an application before the High Court for stay of further proceedings before the Department. On that application, the High Court passed an order on March 12, 1973 stating that the order of stay already granted would continue subject to the following modification. "(1) The respondents will be at liberty to decide after giving the petitioners a hearing whether the petitioners firm should be treated as agent of Mr. Blanco White under section 163 of the Income tax Act. 1961: (2) If they so decide the respondents will be at liberty to issue a notice under section 148 of the Act but will not take any further steps thereafter until the disposal of the application; (3) The petitioners will also be at liberty to appeal from any order made under section 163 without prejudice to their contentions in the proposed appeal to the Supreme Court". We are informed that pursuant to the liberty given by the said order, the Income tax Officer made an order on March 23, 1977 treating the appellants ' firm as the agent of Mr. Blanco White under section 163(1) of the Act and also on the same date issued a notice 393 under section 148 of the Act to the appellants to file a return of the income of Mr. Blanco White. It is also stated that the appellants preferred an appeal against that order before the Appellate Assistant Commissioner without prejudice to the appellants ' contentions in their appeal to this Court. Ultimately on November 30, 1973 this Court made an order that the appellants might apply to the Appellate Assistant Commissioner for an order of stay in respect of the question whether they were agents of Mr. Blanco White and that at any rate even if the Income tax Officer were to proceed with the case, he would make the assessment but would not make a final demand till the disposal of the appeal. It is further stated that pursuant to the notice under section 148 of the Act, the appellants filed a 'nil ' return. Thereafter we are informed that the Income tax Officer intimated the appellants on September 17, 1977 that he had completed the assessment of Mr. Blanco White for the assessment year 1970 71 treating the appellants ' firm as the agent and that copies of the assessment order, demand notice and challan would be forwarded to them after disposal of this appeal. It is necessary to refer at this stage to certain relevant facts of the case. The appellants were acting as the Solicitors of the German Corporation in India in the cases referred to above and the London. Solicitors were acting as its Solicitors in London. Suits Nos. 511 and 1124 had been instituted in 1962 and suit No. 422 in 1963. On May 31, 1965, the London Solicitors sent a cable to the appellants which read as follows: " Dignior Calcutta We act for Farewerke Hoechst this country and understand that you act India stop in connection acting infringement Indian Tolbutamide patent have been instructed to retain Blanco White as counsel to attend hearings Calcutta and Bombay stop Imperative to know dates of respective actions since counsel can only accept subject to other Commitments stop Please cable hearing dates if known or date when Information available stop our Ref Lcc. Ashursts London Col Blanco White REF: LCC. " The above cable shows that the London Solicitors had sought information about the suits in Calcutta to enable them to engage Mr. Blanco White to plead on behalf of the German Corporation in the said suits. On December 23, 1969, the London Solicitors 394 wrote a letter to the appellants in which it was stated that the copies of certain documents sent by the appellants had been handed over to Mr. Blanco White in addition to copies of certain other documents which they themselves had handed over to him. A part of the aforesaid letter which is relevant for the purpose of the present case, is reproduced below: ". We are asking Mr. Divecha of Hoechst Pharmaceuticals Limited, Bombay, to arrange for copies of the evidence in the Bombay case to be sent to you. The formulation of the evidence can then be discussed between you and your Counsel and Mr. Blanco White when he arrives in Calcutta. The remaining documents which we are sending you are three bound volumes of pleadings which you sent to us in the early stages but which will no doubt be of use to you at the trial, Mr. Blanco White of course has copies of all the pleadings in the three cases. There are a number of points which Mr. Blanco White has asked us to put to you for consideration and these are as follows: 1. It is not entirely clear from the pleadings that Indian Patent No. 66049 is a document in the Albert David case. Will you please consider whether this specification may have to be strictly proved ? 2. In the infringement action by Hoechst against Bengal Chemicals, the defendants have objected there is no claim against the second and third dependants, that is the inventors named in the Patent. Mr. Blanco White sees no reason to pursue this point and, subject to your views, would suggest that it is abandoned. In the threats action by Bengal Chemicals, again subject to your views, Mr. Blanco White would not propose to argue that Hoechst did not in fact threaten proceedings. Also in the threats action, there is a point which we would mention here on which we are asking Hoechst Pharmaceuticals Limited of Bombay for information. Bengal Chemicals have said in their affidavits filed in the interlocutory proceedings in April 1962 that they stopped production of Tolbutamide because of the threats made by Hoechst. 395 At the same time it appears that they published advertisements in the Punjab Medical Journal and the Indian Medical Journal of Ist May of that year. We are asking Hoechst Pharmaceuticals if they can say when these advertisements would have had to have been sent to those Journals for publication on that date. Mr. Blanco White will be flying in Calcutta on BOAC Flight No. 914 leaving London on Tuesday, 20th January 1970 and arriving at 6.40 a.m. local time on Wednesday, 21st January. He would like to have preliminary discussion with you and counsel on matters of procedure, etc. On Thursday morning and possibly Wednesday afternoon. We believe that the gentlemen from Hoechst, Frankfurt plan to arrive in Calcutta on Thursday, 22nd January, so as to be available for more detailed talks starting on Friday. We are asking Hoechst, Bombay to arrange for hotel accommodation for Mr. Blanco White. " Then there is the letter dated January 8, 1970 written by the London Solicitors to the appellants enclosing copies of the briefs which had been delivered by the London Solicitors to Mr. Blanco White. The said suits came up for hearing on January 27, 1970. The appellants had engaged Mr. P.P. Ginwala, Mr. A.K. Basu and Mr. Sankar Ghose to appear on behalf of the German Corporation in the said suits. In paragraph 6 of the writ petition filed before the High Court out of which this appeal arises, the appellants have stated as follows: "On 27th January 1970 the said suits were called on before his Lordship the Hon 'ble Mr. Justice K.L. Roy. It was decided to take up Suit No. 1124 of 1962 first. In the said suit Mr. Blanco White, Q.C. appeared with Mr. P.P. Ginwala, Mr. A.K. Basu and Mr. Sankar Ghose. The said suit No. 1124 of 1962 was heard on 27th, 28th, 29th, 30th January 1970, 2nd, 3rd, 4th, 5th, 6th. 9th, 12th, 13th and 16th February 1970 and judgment was reserved. The other suits were adjourned until after the judgment. " In his letter dated March 21, 1973 written to the London Solicitors marked as Annexure 'E ' to the writ petition, Mr. Blanco White while attempting to make out a case supporting the appellants admitted that he was not disputing that when he was actually in 396 Court in Calcutta, he was, formally, there on instructions from the appellants as attorneys. The relevant part of that letter reads: "Dear Mr. Gane, Farbwerke Hoechst vs Bengal Chemical. Certainly I can confirm that, when I appeared before the Calcutta High Court in January and February 1970. I was briefed by your firm and not by Orr. Dignam & Co. Accordingly, whilst I would not dispute that when I was actually in Court in Calcutta I was, formally, there on instructions from Orr. Dignam as attorneys of record, all arrangements relating to my fees were made with you (as the English Solicitors of Hoechst in Germany) and Orr. Dignam were at no time concerned with these arrangements." Mr. Blanco White left India on February 17, 1970 without making any arrangement for the settlement of his liability under the Act. When the Income tax Officer issued the notice dated February 19, 1970 to the appellants drawing their attention to the provisions contained in section 195(2) of the Act and requesting them to furnish information regarding the income earned by Mr. Blanco White by arguing the case before the Calcutta High Court on behalf of the German Corporation, the appellants replied on February 24, 1970 stating that the London Solicitors had engaged Mr. Blanco White to appear on behalf of the German Corporation before the Calcutta High Court; that the appellants had not briefed him nor did they know on what fees, if any, he had been engaged. In their letter dated March 10/11, 1970 to the notice dated February 17, 1970 issued by the Income tax Officer to the appellants under section 163(1) of the Act, the appellants again stated that they had not engaged or delivered any brief to Mr. Blanco White and that they had no business connection with him. It was urged before the High Court by the appellants that there was no sort of connection between the appellants and Mr. Blanco White and even if there was any connection, it was just a casual one and could in no case be termed as business connection: that they had not undertaken to pay any fees to him for appearing in the suits and that, therefore, the appellants were not liable to be assessed. The Division Bench of the High Court which heard the appeal came to the conclusion that there was business connection between the appellants and Mr. Blanco White; that it could not be said that there was no element of continuity and the transaction was a stray or an isolated one and that the appellants were not entitled to the issue of the writ prayed for on the facts and in the circumstances of the case. 397 For proper appreciation of the contentions advanced by the parties before us, it is necessary to refer to some of the provisions of the Act. Section 160(1)(i) of the Act provides that in respect of the income of a non resident specified in sub section (1) of section 9 of the Act, the agent of the non resident, including a person who is treated as an agent under section 163 is a representative assessee. Section 161 (1) of the Act stipulates that every representative assessee, as regards the income in respect of which he is a representative assessee, shall be subject to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially, and shall be liable to assessment in his own name in respect of that income; but any such assessment shall be deemed to be made upon him in his representative capacity only, and the tax shall, subject to the other provisions contained in Chapter XV of the Act be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him. Section 163 (1)(b) and (c) of the Act provides that for purposes of the Act any person in India who has any business connection with the non resident or from or through whom the non resident is in receipt of any income whether directly or indirectly can be treated as an agent of such nonresident. Section 5(2) of the Act inter alia provides that subject to the provisions of the Act, the total income of any previous year of a person who is a non resident includes all income from whatever source derived which accrues or arises or is deemed to accrue or arise to him in India during such year. The relevant part of section 9(1) of the Act reads: "(1) The following incomes shall be deemed to accrue or arise in India (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through of from any asset or source of income in India or through the transfer of a capital asset situate in India; Explanation For the purposes of this clause (a) in case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India 398 From the facts stated above it is seen that from the year 1965 there was correspondence between the appellants and the London Solicitors who in their turn had engaged Mr. Blanco White in connection with the suits in question. It shows that there was a connection between the appellants and Mr. Blanco White though it was an indirect one. After his arrival in India, it must be assumed that the appellants had done all that was suggested in the letter of the London Solicitors dated December 23, 1969. It is admitted that Mr. Blanco White appeared with the Indian counsel engaged by the appellants and argued the case on behalf of the client of the appellants in the suit in which they were acting as solicitors. Even though the appellants did not hand over ally briefs directly to Mr. Blanco White, it is seen that part of the records handed over to Mr. Blanco White by the London Solicitors consisted of the copies of records sent by the appellants to the London Solicitors. It is further seen that Mr. Blanco White appeared before the High Court alongwith the Indian counsel engaged by the appellants, though with the leave of the Court granted presumably under section 32 of the . We are also of the view that there must have been discussion between the appellants and Mr. Blanco White before the case was argued by him. Moreover, Mr. Blanco White could appear only with the consent of the appellants who were the Solicitors on record. In the circumstances, it cannot be said that the High Court was wrong in holding that there was connection between the appellants and Mr. Blanco White. The said connection cannot also be termed as a casual one having regard to the period over which it had existed. It was real and intimate and Mr. Blanco White earned the fees for arguing the case in India only through the said connection. The case satisfies the test laid down by this Court in Commissioner of Income tax, Punjab vs R.D. Aggarwal and Co. and Anr. for holding that there was connection between the appellants and Mr. Blanco White. The finding of the High Court on the above question also appears to be well founded The only remaining question which needs examination is whether the said connection was a business connection. The contention of the appellants is that a professional connection cannot amount to a business connection attracting section 9(1) of the Act. In support of this contention the appellants depend upon the definitions of the expressions 'business ' and 'profession ' found in 399 section 2 (13) and section 2(36) of the Act. Section 2(13) of the Act reads: "business" includes any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture". Section 2(36) of the Act provides: ""Profession" includes vocation ". Section 14 of the Act which enumerates the heads of income which give rise to a liability to tax under the Act treats the income from profits and gains of business and profession as a single head. Sections 28 to 44B of the Act constitute the fascicule of provisions dealing generally with the computation of income from business and profession although not all those provisions are applicable to income from a profession. The definition of the expression 'business ' given in the Act is an inclusive one. The expression 'business connection ' however is not defined in the Act. It is manifest that the words in section 9(1) and section 163 are comprehensive enough to include all heads of income mentioned in section 14 of the Act. It is no doubt true that there is specific reference to 'business ' in section 9(1) and there is no reference to 'profession '. But no tenable reason is discernible from the statute for excluding income arising out of profession from its scope. In this connection two submissions are made on behalf of the appellants (1) that it was the intention of the Parliament to exclude non residents engaged in learned professions from the operation of section 9(1) and that even if the intention of the Parliament was not to exclude such persons from section 9(1) since there is an omission to refer to them expressly the lacuna should not be made good by giving a wide interpretation to the expression 'business connection '. We do not find that there is any substance in the first submission. There could be no good reason for the Parliament for excluding non resident professional men from the purview of section 9(1) of the Act. There is no material on which we can reach that conclusion. In so far as the second submission is concerned, we have to examine whether it would really amount to filling up a lacuna in the section if the expression 'business connection ' is interpreted as including within its scope 'Professional Connection ' also. 400 In Commissioner of Income Tax, Bombay vs Currimbhoy Ebrahim & Sons Ltd., Sir George Rankin speaking for the Judicial Committee of the Privy Council while construing the expression 'business connection ' in section 42(1) of the Indian Income Tax Act 1922 observed: "The phrase " business connection " is different from, though doubtless not unrelated to, the word "business" of which there is a definition in the Act ". The expression 'business ' does not necessarily mean trade or manufacture only. It is being used as including within its scope professions, vocations and callings from a fairly long time. The Shorter oxford English Dictionary defines 'business ' as 'stated occupation, profession or trade ' and ' a man of business ' is defined as meaning 'an attorney ' also. In view of the above dictionary meaning of the word 'business ' it cannot be said that the definition of business given in section 45 of the Partnership Act, 1890 (53 & 54 Vict. c. 39) was an extended definition intended for the purpose of that Act only. Section 45 of that Act says: "The expression "business includes every trade, occupation, or profession". Section 2(b) of the also defines " business" thus: " "business" includes every trade, occupation and profession". The observation of Rowlatt, J. in Christopher Barker & Sons vs Commissioner of Inland Revenue. "All professions are business, but all businesses are not professions,. " also supports the view that professions are generally regarded as businesses. The same learned Judge in another case Commissioner of Inland Revenue vs Marine Steam Turbine Company Limited held: The word 'business ' however is also used in another and a very different sense, as meaning an active occupation or profession continuously carried on and it is in this sense the word is used in the Act with which we are here concerned. " 401 The word business is one of wide import and it means an A activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. We are of the view that in the context in which the expression business connection is used in section 9 (1) of the Act there is no warrant for giving a restricted meaning to it excluding professional connections from its scope. There is very little substance in the submission made on behalf of the appellants that since Mr. Blanco White could not appear as counsel as of right either under the or under the Calcutta High Court original Side Rules he could not be treated as having any business connection with the appellants. As noticed earlier Mr. Blanco White appeared alongwith the Indian counsel engaged by the appellants and the appellants continued to represent the German Corporation when Mr. Blanco White argued the case before the High Court. It is difficult to hold that he was a stranger to the appellants. The appellants may not have engaged him to argue the case but they allowed him at the request of the London Solicitors to argue the case and willingly cooperated with him in doing so. That it was their case that Mr. Blanco White argued cannot be denied. The appellants may not have undertaken to pay his fees but he could not have argued and earned the fees without associating himself with the appellants. The fact that Mr. Blanco White being a barrister could not file a suit to recover the fees would not make any difference in this case as in the letter dated August 19 1980 written by the London Solicitors to the appellants which is produced before us it is stated that the fees of Mr. Blanco White amounted to 2200 with refreshers at the rate of 220 per day. We need not go into the correctness of these figures but the fact remains that Mr. Blanco White has earned income for the work done in India. We do not propose to go into question as to what would happen if no fees have been realised by him at all. In view of the foregoing we are of the view that the judgment of the Division Bench of the High Court which is under appeal does not call for interference. In the result the appeal is dismissed. I he parties shall however bear their costs. V.D. K . Appeal dismissed.

A news item published in the Blitz weekly of which the respondent was the Editor, stated that the appellant enticed a female detenu who alongwith him, was detained in the Central Jail under the Maintenance of Internal Security Act and that she had conceived through him and that on getting released on parole she had the pregnancy terminated. It was further stated that a confidential enquiry conducted by a senior officer of the Home Department revealed that it was the appellant who was responsible for the detenu 's pregnancy. On release from jail the appellant lodged a criminal complaint against the respondent. Before the Magistrate the respondent prayed that the report of the Enquiry Officer be sent for. But the report could not be obtained because the State Government claimed privilege in respect of that report. When the Magistrate proceeded to record the plea of the accused under section 251 of the Code of Criminal Procedure, the respondent requested that his plea be recorded only after the enquiry report was produced; but the Magistrate rejected the request. The respondent thereupon filed a revision before the High Court for setting aside the order of the Magistrate. Waiving privilege the State Government produced a copy of the enquiry report before the High Court. A single Judge of the High Court quashed the proceedings on the view that the respondent 's case clearly fell within the ambit of the ninth exception to section 499, I.P.C. because, according to him, the publication had been made honestly in the belief of its truth and also upon reasonable ground for such belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances. On the question whether the High Court was right in quashing the order of the Magistrate, remanding the case to the Magistrate. 628 (Per majority: Chinnappa Reddy and A.P. Sen JJ Baharul Islam J dissenting) ^ HELD: The order passed by the High Court should be set aside. The Magistrate should record the plea of the accused under section 251 Cr. P.C. and thereafter proceed with the trial according to law. (Per Chinnappa Reddy, J.) To attract the ninth exception to section 499, I.P.C. the imputations must be shown to have been made (1) in good faith and (2) for the protection of the person making it or of any other person or for the public good. The insistence of the section is upon the exercise of due care and attention. The standard of care and attention must depend on the circumstances of an individual case, the nature of imputation, the need and the opportunity for verification and so on. In every case it is a question of fact to be decided on its particular facts and circumstances. [631 A B] Harbhajan Singh vs State of Punjab, @ 244, Chaman Lal vs The State of Punjab ; @ 916 and 918. Several questions may arise for consideration depending on the stand taken by the accused at the trial and how the complainant proposed to demolish the defence. In the instant case the stage for deciding these questions had not arrived yet. Answers to such questions, even before the plea of the accused was recorded, could only be a priori conclusions. [632 H] The respondent 's prayer before the High Court was to quash the Magistrate 's order and not to quash the complaint itself as the High Court has done. But that was only a technical defect which need not be taken seriously in an appeal under Article 136 of the Constitution where the Court is concerned with substantial justice and not with shadow puppetry. [630 G] (Per A.P. Sen J.) The order of the High Court quashing the prosecution under section 482 of the Code of Criminal Procedure is wholly perverse and had resulted in manifest miscarriage of justice. The High Court has pre judged the whole issue without a trial of the accused persons. The matter was at the state of recording the pleas of the accused under section 251 Cr. P.C. The circumstances brought out clearly showed that the respondent was prima facie guilty of defamation punishable under section 500 of the Indian Penal Code unless covered by one of the exceptions of section 499 Indian Penal Code. [635 E F] The burden to prove that his case would come within the ninth exception to section 499, namely, that the imputation was in good faith and was for the protection of the interests of the person making it or of any other person or for the public good was on the respondent. All that the respondent prayed for was that the Magistrate should not proceed to record his plea under section 251 Cr. P.C. without perusing the enquiry report. There was no application for quashing the prosecution itself. C] 629 The enquiry report in respect of which the Government claimed privilege had by itself no evidentiary value. The contents of that report could not be made use of unless the facts were proved by evidence aliunde. The report being per se defamatory, it was for the accused to plead the ninth exception in defence and discharge the burden of proving good faith which implies the exercise of due care and caution and to show that the attack on the character of the appellant was for the public good. [637 E; G; H] Sukro Mahto vs Basdeo Kumar Mahto and Anr. [1971] Supp. SCR 329 at 332, Harbhajan Singh vs State of Punjab ; , Chaman Lal vs State of Punjab ; , referred to. The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege. Journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under the first exception unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant fact in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or in the limited cases specified in the ninth exception, show that the attack on the character of another was for the public good or that it was made in good faith. [638 G H] Dr. N.B. Khare vs M.R. Masani and Ors., ILR 1943 Nag. 347, Arnold vs King Emperor at 169, referred to. (Per Baharul Islam J.) The Court did not commit any error in quashing the appellant 's complaint. [646 E] The High Court 's judgment justifies the factual submission of the respondents that their application was under section 482 as well as under sections 397 and 401 of Cr. P.C. and that they claimed and canvassed the protection under the ninth exception to section 499, I.P.C. The omission in the prayer portion of a petition, particularly in a criminal case, is not fatal. The High Court, in its revisional jurisdiction, can always grant suitable relief justified by law as well as facts and circumstances of a particular case. [641 H; 642 D] The definition of "good faith" which is couched in negative terms indicates that lack of good faith has been made a part of the offence which the prosecution has to establish beyond reasonable doubt. On the other hand, proof by the accused of the report to be an authentic document is enough. It would create a doubt in the mind of the Court as to the lack of "good faith" on the part of the accused. [644 F G] If on a complaint made by a citizen alleging laxity in the observance of jail rules, if the report submitted by a high Government official on the basis of an enquiry conducted by him was for public good and if the respondents had reasons to believe its contents to the true, they will be protected under the ninth exception even if the burden of proof of good faith is on the accused. Good faith need not be proved beyond reasonable doubt. [645 B] The report of the enquiry officer was exhaustive, reasoned and was based on evidence. The report leads one to believe the imputations. If that be so, it 630 cannot be said that the respondents published the report or its summary without due care and attention. This establishes good faith under the ninth exception to section 499. Therefore, the publication obviously was for public good. [646 B C] In the instant case even if the findings of the report be proved to be false, the respondents would be protected. Sending back the case to the Magistrate would be an exercise in futility and abuse of the process of the criminal court as the High Court has pointed out. [646 D E]

Appeal No. 317 of 1976. Appeal from the Judgment and Order dated the 13th Febru ary, 1976 of the Jammu & Kashmir High Court in Election Petition No. 2 of 1972. M.N. Phadke, Altaf Ahmed and Veerappa for the Appellant. Ghulam Quadir Mir (In person) for Respondent No. 1. Ex parte for Respondents 2 5. The Judgment of the Court was delivered by KHANNA, J. During the general elections held in March 1972 five candidates, namely, the appellant and respondents No. 1 to 4, contested tile election for the Jammu & Kashmir State Legislative Assembly from Rajpura constituency. There was a sixth candidate, namely, Mohamed Abdullah Sheikh, respondent No. 5, but his nomination paper was rejected. The appellant secured 9,079 votes and was declared elected. Respondent No. 1 was the nearest rival and he secured 8,248 votes. Respondents 2 to 4 secured 1,340, 1,126 and 1,217 votes respectively. 2,034 votes were declared invalid at the time of counting. After the declaration of the result of the election, respondent No. 1 filed election petition out of which the present appeal arises. Two prayers were made in the election petition: (1) that the election of the appel lant be declared to be void; and (2) that respondent No. 1 be declared to have been duly elected. The High Court accepted the first prayer and declared the election of the appellant to be void. The second prayer that respondent No. 1 be declared to have been duly elected was not granted. The present appeal has been filed by the appellant against the judgment of the High Court insofar as it has declared his election to be void. Cross objections have been filed by respondent No. 1 and it has been prayed on his behalf that he be declared to have been duly elected. The election petition was founded on the following three grounds: (1 ) Improper rejection of the nomination paper of respondent No. 5. (2) Improper rejection of the votes which had been cast in favour of respondent No. 1 (hereinafter referred to as the respondent); and (3) Improper reception of the votes in favour of the appellant on the day of polling at the following polling stations: 1. Lassipora Polling station No. 49 2. Nowpora Pain Polling station No. 50 299 3. Drubgham B Polling station No. 24 4. Drubgham A Polling station No. 23 4. Drugbham A Polling station No.23 5. Aliaipora Polling station No. 51 6. Chandgham Polling station No. 46 7. Arihal Polling station No. 35, and 8. Tikan Batapora Polling station No. 26. According to the case of the respondent as set up in the election petition, the result of the election was materially affected because of the improper rejection at the time of counting of the votes which had been cast in his favour and by the improper reception of the votes in favour of the appellant on the day of polling. Giving particulars in respect of the third ground, namely, that there was improper reception of votes in favour of the appellant on the day of polling, the respondent stated that the total number of votes at Lassipura (polling station No. 49) was 824. All those votes were shown to have ben polled, although 162 voters registered in that area did not cast their votes. The figure of 162 included 16 persons who were dead before the date of polling. Electoral numbers of those 162 voters, including 16 dead persons, were also mentioned in the peti tion. The votes of 162 persons were thus stated to have been improperly received. Similar allegations were made in respect of Nowpora Pain (polling station No. 50), Drubgham B (polling station No. 24), Drubgham A (polling station No. 23), Alaipora (polling station No. 51), Chandgam (polling station. No. 46), Arihal (polling station No. 35) and Tikan Batapora (polling station No. 26). We may add at this stage that the first ground, namely, that relating to the improper rejection of the nomination paper of respondent No. 5, was not pressed at the trial of the election petition, and as such no 1onger survives. The election petition was resisted by the appellant and he denied the various allegations made by the respondent. He also pleaded that the allegations in the election peti tion were vague, indefinite and uncertain. Objection was also raised regarding the maintainability of the petition on the grounds that it had not been properly verified and there war misjoinder of parties. The petition was initially heard by Wasi ud Din J. It thereafter came up for hearing before Jalal ud Din J. Ultimately, it came up for hearing before Mufti Baha ud Din Farooqi J. who finally decided the petition and gave the judgment under appeal. During the pendency of the petition, orders were made on three occasions for inspection of the ballot papers. The first order was made by Wasi ud Din J. on August 13, 1973. The learned Judge, considered the prayer for inspection of ballot papers under three heads: "(1) Request for inspection of ballot papers which were rejected at the time of counting; (2) Request for inspection a ballot paper account (Form No. 16) in respect of the var ious polling stations and of the ballot papers relevant thereto; 300 (3) Request for inspection of marked copies of electoral rolls at polling stations Lassipora, Drubgham A & B, Achan, Chandgham, Afthal, Nowpora Pain, Tikam Batopora, Alaipo ra. " Prayer under the first and third heads was rejected but that under the second head was allowed to the extent of the inspection of form No. 16 in respect of Lassipora, Nowpora Pain, Drubgham B, Drubgham A, Alaipora, Chandgham, Arihal and Tikan Batopora polling stations. Inspection of a few ballot papers, of which the numbers were specified, relating to some of the polling stations was allowed. On November 2, 1973 the learned Judge amplified his previous orders in these words: "My order as it stands should be read to Clearly signify which I am amplifying here also that the sorting of the ballot papers will be done by the Deputy Registrar but in the presence of the learned counsel for both the parties. The learned counsel for the parties will not be allowed to handle the ballot papers until they are sorted out by the Deputy Registrar and after this is done, the respective learned counsel for the parties can handle and inspect the ballot papers. " On June 13, 1974 the learned Judge, on an application made by the respondent, allowed inspection of ballot papers of two more polling stations, viz., Chandgham and Alaipora. The respondent also made prayer for leave to inspect the ballot papers of other polling stations, but the prayer in that behalf was rejected. The following directions were further issued by the learned Judge: "The petitioner has also made a prayer that the Deputy Registrar be given directions to ascertain if the 34 series of two inspected polling stations Nos. 24 and 50 are not mixed in the fourth trunk which has been produced. The Deputy Registrar will of course see to this and such other discrepancies which may come to his notice, he will make a separate note and he will also make a note on the envelope if he found the discrepancy." After Wasi ud Din J. relinquished his office, the case was assigned to Jalal ud Din J. An application was then made on July 29, 1974 by the respondent seeking permission to in spect ballot papers and other documents pertaining to the various polling stations, This application was disposed of by Jalal ud Din J. as per order dated January 6, 1975 in these words: "I, therefore, allow the application of the petitioner for inspection of ballot papers in respect of four veiling stations, namely, 26 Tikan Batapora from serial No. 015051 to 15700, 35 Arihal A from serial No. 020901 to 021550, 49 Lassipora from serial No. 031051 to 031900, 23 Drubgham from serial No. 013201 to 013800 and also the counterfoils of 15 Nowpora Pain, 24 Drubgham B. 46 Chandgham and 51 Alaipora, the polling stations of which the ballot papers have already been inspected by the petitioner. 1, however, do not accede to the request of the petitioner to inspect electoral roll and 301 counterfoils and from 16 of the entire con stituency. The inspection as ordered will be held by and in presence of the counsel for the parties. But the Deputy Registrar will see that neither the candidate nor their counsel shall, handle the record. The Deputy Registrar will further make a separate note and record of the discrepancies found, if any. The inspection will be held during vacation on a date to be fixed by the Deputy Registrar." In the judgment under appeal the learned Judge held that 59 votes validly polled in favour of the respondent were im properly rejected at the time of counting. It was further found that 901 votes, including 28 votes of dead voters, were improperly polled. Out of 901 votes, 351 votes were found to have been polled in favour of the appellant. De tails of those 351 votes were as under: Alaipora polling station No. 51 200 Arihal polling station No. 35 51 Takin Batapora P.S. No. 26 100 Regarding the remaining 550 votes, the learned Judge found that the evidence was not clear, and observed as under: "The evidence, however, is not clear as regards the fate of the remaining 550 such votes. But having regard to overall circum stances of the case it will not be unreasona ble to conclude that respondent No. 1 was the greatest beneficiary of these 550 votes al though the precise number by which he was benefited out of those votes may not be easily ascertainable. To these circumstances may be added the circumstance that 59 votes validly polled in favour of the petitioner were im properly rejected at the time of counting, as held by me before. The cumulative effect of these circumstances is that the respondent No. 1 was able to get an undue advantage of no less magnitude and may be, even greater than that reflected in his declared success over the petitioner by 831 votes. In this view it must be held that the result of the election, insofar as respondent No. 1 is concerned, was materially affected by the improper rejection of votes in favour of the petitioner at the time of counting and the improper reception of votes on the day of poll and that his election must be declared to be void. But that should not entitle the petitioner to a declaration that he was duly elected as the total number of the votes improperly received in favour of respondent No. 1 on the date of poll could not be exactly worked out. The prayer for such de claration must be rejected. " In the result, the election of the appellant was declared to be void. The prayer of the respondent for a declaration that he be declared to have been elected was rejected. When this appeal came up for hearing before this Court on September 3, 1976, we passed an order wherein we referred to the finding of the High Court that it cannot be said as to who was the beneficiary of the 550 votes which were found to have been improperly polled. We thereafter stated in that order: 302 "In our opinion, it is necessary to find out as a result of further inspection as to how many d those 550 votes were in favour of the appellant, and how many, in favour of respondent No. 1 and the other contesting candidates. For this purpose, we depute the Registrar (Judicial) of this Court to make an inspection in the presence of the parties and their counsel and submit a report to this Court within six weeks from today. The Regis trar may also have to locate the 55 ballot papers referred to in the judgment of the High Court at pages 31 51 of the cyclostyled judg ment. He may also, if necessary, refer to the reports of the Deputy Registrar of the High Court. The appeal should be put up for further hearing as soon as the report is ready. " The Registrar of this Court thereafter submitted his report dated September 15, 1976. The Registrar dealt with most of the matters but in respect of some of the matters he sought further directions. Necessary directions were thereafter issued by this Court on September 17, 1976. As a result of those directions, the Registrar had to scrutinise 571 ballot papers in all instead of 550 votes. The final report of the Registrar is dated September 24, 1976. The result of the reports of the Registrar taken along with the findings of the High Court may be set out: (1) Votes found by the High Court to have been improperly received in favour of the appellant 351 (2) Votes which were found to have been improperly received in favour of the appellant as per the first report of the Registrar 286 (3) Votes which were found to have been improperly received in favour of the appellant as per the second report of Registrar. 141 Total 778 (4) Total number of votes polled by the appellant as per the results of the election 9,079 (5) Valid votes polled by the appellant 9,079 778=8301 (6) Votes which were found to have been improperly received in favour of the respondent as per the first report 25 (7) Votes which were found to have been improperly received in favour of the respondent as per the second report 19 Total 44 (8) Total votes polled by the respondent as per the result of the election 8,248 (9) Votes validly polled in favour of the respondent which were found by the High Court to have been improperly rejected at the time of counting 59 303 (10) Total number of votes thus polled by the respondent 8,248+59=8,307 (11) Valid votes polled by the respondent 8,307 44=8,263 (12) Excess of votes validity polled in favour of the appellant over those of of the respondent. 38 Some votes were found by the Registrar to have been im properly received in favour of respondents 2 to 4, but it is not necessary to set out those votes. In appeal before us Mr. Phadke on behalf of the appel lant has urged that in view of the final picture as it emerges from the reports of the Registrar, the appeal should be allowed and the election petition be dismissed as the appellant secured more valid votes than the respondent. The above stand has been controverted by the respond ent, who has argued the case in person. At an earlier hearing we requested Mr. Gambhir to argue the case amicus curiae in view of the fact that the respondent was not represented by counsel. The respondent thereafter stated that he Would like the matter to be argued by counsel of his own choice. Mr. Shaukat Hussain thereafter appeared on behalf of the respondent. At the final hearing the respond ent, as mentioned above, chose to argue the case in person. Perusal of the election petition filed by the respondent shows that apart from the ground not subsequently pressed of the improper rejection of the nomination paper of respondent No. 5, the only ground on which the respondent challenged. the election of the appellant was the improper reception of votes in favour of the appellant and the improper rejection of the votes cast in favour of the respondent. This ground is based upon sub clause (iii) of clause (d) of sub section (1) of section 108 of the Jammu and Kashmir Representation of the People Act, 1957 (Act 4 of 1957) corresponding to sub clause (iii) of clause (d) of sub section (1) of section 100 of the Representation of the People, Act 1951 fact 43 of 1951). According to the above provision, if the High Court is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote of the reception of any vote which is void, the High Court shall declare the election of the returned candidate to be void. Keeping the above provision in view, we may now turn to the facts of the present case. The High Court found that 351 votes had been improperly received in favour of the appellant. The High Court further found that 59 votes which had been validly polled i.n favour of the, respondent were improperly reject ed at the time of counting. In addition to. that, the High Court found that 550 votes had been improperly received, but it was not possible on the material on record to find out as to who was the beneficiary of those votes. The High Court all the same was inclined to believe that the appellant must have been the major beneficiary of those 550 votes. This necessarily involved an element of surmise and conjecture. To find out the exact position, we directed the Registrar of this Court to 304 scrutinise the 550 ballot papers in question and to make a report as to how many of those votes were cast in favour of the appellant and how many in favour of the respondent and the other candidates. The Registrar thereafter submitted reports and we have already set out the outcome of those reports taken along with the findings of the High Court. It would appear from the figures set out above that, exclud ing all the votes which were found to have been improperly received by the appellant and also giving credit to the respondent for 59 votes which were found by the High Court to have been improperly rejected at that time of counting, the net result still is that the appellant has a lead of 38 votes over the respondent. There is, therefore, no escape from the conclusion that the election of tile appellant should be upheld. In an election petition founded upon the ground that the result of the election was materially af fected by the improper reception or rejection of votes, the court has first to decide whether certain ballot papers were improperly received or were improperly rejected. Once ,that controversy is resolved, the rest is purely a matter of arithmetical calculation. If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival, his election would not be declared to be void on the ground of improper reception or improper rejection of votes. Improper reception or improper rejec tion of votes can result in invalidating an election only if such improper reception or improper rejection materially affects the result of the election. In the course of his arguments, the respondent has submitted that a number of improprieties were committed in the conduct of election and therefore the election of the appellant be declared to be void. Although it does appear from the material on record to which our attention was invited by the respondent that irregularities were committed in the conduct of the election, the respondent cannot derive any benefit on that account. As already mentioned, the respondent sought to challenge the election of the appellant only on the ground of improper reception and improper rejection of certain votes. The election of the appellant was not challenged on the ground of any irregular ity or non compliance with the provisions of the Constitu tion or of the Representation of the People Act or of any rules or orders made thereunder. Nor was the election of the appellant assailed on the ground of being vitiated by corrupt practice. As it is not permissible to widen the scope of an election petition beyond the grounds actually set up in the election petition, the respondent cannot seek relief on grounds which were not taken by him in the elec tion petition. It has also been urged by the respondent that the number of votes which were improperly received was larger than that found by the High Court. Nothing cogent has, however, been brought to our notice in support of the above submission to induce us to interfere with the finding of the High Court in, this respect. Lastly, the respondent submits that 153 ballot papers of Lassipora polling station cast in favour of the appellant should be rejected as 305 they bore the initials and not the full signatures of the presiding officer. Our attention in this respect is invit ed to clause (h) of rule 56(2) of the Jammu and Kashmir Conduct of Election Rules, 1965, according to which the returning officer at the time of counting shall reject a ballot paper if it does not bear both the mark and the signatures which it should have borne under the provisions of sub rule (1) of rule 3 8. According to sub rule (1 ) of rule 3 8, every ballot paper shall before issue to elector, be stamped by such distinguishing mark as the Election Commission may direct, and be signed in full on its back by the presiding officer. It is not disputed that the ballot papers in question bore the distinguishing mark. The only contention of the respondent, as already mentioned, is that the ballot papers in question bore the initials and not the full signatures of the presiding officer. In this respect we find that no express ground on that score was set up by the respondent in the election petition. This apart, we that the matter is covered by the first proviso to sub rule (2) of rule 56 which reads as under; "Provided that where the returning offi cer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. " The above proviso which is based upon the principle that a vote validly cast should not be excluded from consideration because of the mistake or omission of the presiding or polling officer, makes it plain that where the returning officer is satisfied that any defect mentioned in clause (h) has been caused by the mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. The fact that the returning officer in the present case did not reject the ballot papers in question on the ground that they bore only the initials and not the full signatures of the presiding officer would go to show that the returning offi cer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer: There can indeed be hardly any doubt on the point that the defect referred to by the respondent occurred because of the mistake or failure of the presiding officer. We, there fore, see no cogent ground to exclude from consideration 153 ballot papers polled in favour of the appellant. Before we conclude, we may observe that some other con tentions were also advanced on behalf of the appellant. In view of the fact that the appeal in any case has to be allowed because of the arithmetical calculations referred to above, it is not necessary to go into those contentions. As a result of the above, we accept the appeal, set aside the judgment of ,the High Court and dismiss the election petition. Crossobjections filed by the respondent are dismissed. Looking to all the facts, we leave the parties to bear their own costs throughout. P.B.R. Appeal al lowed.

The appellant was the assignee of a mortgage dated 14 12 1911, executed by A, which comprised. lands belonging to the mortgagor and also a mortgage executed by the respondents in his favour on 19 7 1909. The appellant instituted a suit in the court of the Subordinate Judge of Kakinada, for the recovery of the amount due on the mortgage, dated 14 12 1911, and prayed for sale of the hypotheca. The respondents were impleaded as defendants but did not appear. The suit was decreed ex parte, and in execution of the decree, the properties of the respondents, mortgaged to A on 19 7 1909, were brought to sale, and purchased by the decree holder. The respondents then instituted the present suit in the District Court of East Godavari which then bad jurisdiction over the properties in suit, for a declaration that the decree obtained by the appellant was fraudulent and inoperative and could not affect their title. The plaint was later on amended and a prayer added that the properties might be partitioned and the respondents put in separate possession of their share. The trial Judge dismissed the suit and the District Court in appeal affirmed his decision. Before the High Court in second appeal it was contended for the first time that the decree in question did not direct a sale of the mortgaged properties but a sale of the mort gagee 's rights under the mortgage deed dated 19 7 1909 and as such the sale of the properties was void. The High Court having called for a finding from the District Court as to what was sold, it was 939 found by that Court that the decree bad really directed a sale of the mortgagee 's rights and not of the properties mortgaged and that there was excessive execution. It was, however, of opinion that the point should have been taken before the executing court and the suit in so far as it claimed relief on the basis of excessive execution was barred under section 47 of the Code of Civil Procedure. The High Court declined to entertain the objection that the suit was barred under section 47 as it had not been taken in the written statement and was raised for the first time in second appeal, and decreed the respondent 's suit. It was contended for the appellant that the High Court should have entertained the objection and held that the suit was so barred. Held, that the appellant should be permitted to raise the contention. The point relating to excessive execution had never been specifically raised except before the High Court and the allegations in the plaint were vague and obscure. It is a pure question of law which requires no further investigation of facts and was understood and debated as such by the parties before the District Court. That it was well settled that the question whether an execution sale was in excess of the decree and, therefore, not warranted by it could be raised as between the parties only by an application under section 47 of the Code before the executing court and not by a separate suit. J. Marret vs Md. K. Shirazi & Sons (A.I.R. 1930 P. C. 86), Venkatachalapathy Aiyen vs Perumal Aiyen ([1912] M.W.N. 44), Biru Mohata vs Shyania Charan Khowas ([1895] I.L.R. , Abdul Karim vs Islamunnissa Bibi ([1916] I.L.R. 38 All. 339) and Lakshminarayan vs Laduram ([1931] A.I.R. , approved. That the court, however, had the power to treat the plaint in the suit as an application under section 47 subject to any objection as to limitation or jurisdiction. That the application was not barred under article 165 as it ap plied only to applications for restoration to possession by persons other than judgment debtors and bad no application to the present case. Vachali Bohini vs Kombi Aliassan '([1919] I.L.R. 42 Mad. 753), Batnam Aiyar vs Krishna Doss Vital Doss ([1897] I.L.R. , Basul vs Amina ([1922] I.L.R. and Bahir Das vs Girish Chandra ([1922] A.I.R. 1923 Cal. 287), approved. Nor could article 166 apply since it had application only where the sale was voidable and not void and had to be set aside. That the article applicable to a case of a void sale such as the present was article 181 of the Indian Limitation Act. Seshagiri Rao vs Srinivasa Rao ([1919] I. , Bajagopalier vs Bamanujachariar ([1923] I.L.R. 47 Mad. 288), Manmothanoth Ghose vs Lachmi Devi ([1927] I.L.R. 55 Cal. 96), Nirode Kali Boy vs Harendra Nath (I.L.R. [1938] 1 Cal. 280), and 119 940 Md We Gyan vs Maung Than Byu (A.I.R. 1937 Rang. 126), ap proved. That the starting point of limitation for an application under article 181 would be the date of dispossession by the purchaser and not the date of the void sale which had no existence in law and the plaint in the present suit, treated as an application, having been filed ,within 3 years of such dispossession was in time. Chengalraya vs Kollapuri (A.I.R. , approved. That the District Court of East Godavari to whose jurisdiction the properties had been transferred before the present suit was instituted had by reason of such transfer acquired an inherent jurisdiction over them and if it entertained an application for execution with reference to them such action was no more than an irregular assumption of jurisdiction and no objection to jurisdiction having been taken by the appellant at the earliest opportunity he must be deemed to have waived it and, consequently, there was no legal bar to treating the plaint as an execution application under section 47 of the Code. Balakrishnayya vs Linga Bao, (I.L.R. , applied. Case law discussed.

ns Nos. 133, 156 & 157, 159 171, 178, 184, 206 210 and 234 of 1966. Writ Petitions under article 32 of the Constitution of India for enforcement of fundamental rights. section T. Desai, K. M. Desai, and Ravinder Narain, for the petitioners (in all the petitions). M. C. Setalvad, Purshottam Trikamdas, Vithal Bhai B. Patel and L N. Shroff, for respondents Nos. 1 and 2 (in W.P. No. 133 of 1966. Purshottam Trikamdas Vithalbhai B. Patel and L N. Shroff, correspondents Nos. 1 and 2 (in W. Ps. 156 and 206 of 1966). Vithalbhai B. Patel and I.N. Shroff, for respondents 1 Nos. 1 and 2 (in W.P. Nos. 157, 159 171, 178, 184, 207 210 and 234 of 1966. B. Sen and R. H. Dhebar, for respondent No. 3 (in all the petitions). The Judgment of the Court was delivered by Mitter, J. This is a group of Writ Petitions under article 32 of the Constitution challenging the validity of the assessment book relating to special Property section prepared and published by the Municipal Corporation of the City of Ahmedabad by which the 681 Municipality seeks to impose or has imposed property tax on properties described as Special Properties like textile mills, factories, buildings of the universities, etc. on the basis of a flat rate per 100 sq. ft. of the floor area of the property situate within the municipal limits of the city. In Writ Petitions Nos. 133, 156 157, 159 171, 178, 184 and 234 of 1966, the challenge relates to the validity of the assessment book relating to the year 1966 67; in Writ Petitions No. 206 and 210 of 1966 the challenge relates to the years 1964 65 and 1965 66 while in W.P. Nos. 207, 208 and 209 of 1966 the challenge relates only to the year 1965 66. The difference lies in this So, far as the assessments for the year 1966 67 are concerned, there has been no authentication of the assessment book after the disposal of all complaints relating to the entries made in the book, while the challenge relating to the years 1964 65 and 1965 66 is made at a stage after such authentication and in respect of which attachments of property belonging to the assessees have already been levied. In W. P. No. 234 of 1966 filed in October 1966, the issue of a distress warrant and the levy of attachment are also challenged. Several textile mills in the city of Ahmedabad are before this Court in these petitions and they have a common complaint against the assessments. To appreciate the points raised in these petitions, it is necessary to take a bird 's eye view of the relevant provisions of the Bombay Provincial Municipal Corporations Act (LIX of 1949) under which the assessments were purported to be made. Section 127(1) of the Act makes it obligatory on the Corporation of the City of Ahmedabad to impose, among other taxes, a property tax. Sub section (3) of the section provides that municipal taxes shall be assessed and levied in accordance with the provisions of the Act and the rules and sub section (4) lays down that nothing in this section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution; (it is needless to add that the Act has been amended after the Constitution came into force). Section 128 empowers the Corporation to recover the tax by the processes laid down in the section in the manner prescribed by rules. These are inter alia (1) by presenting a bill; (2) by serving a written notice of demand; (3) by distraint and sale of the defaulter 's movable property; and (4) by the attachment and sale of a defaulter 's immovable property. Section 129 lays down that for the purposes of sub section (1) of section 127 property taxes shall comprise the taxes mentioned which shall, subject to the exceptions, limitations and conditions provided, be levied on buildings and lands in the city. One of these mentioned in cl. (c) is a general tax of not less than 12 per cent of their rateable value which may be levied, if the Corporation so determines, on a graduated scale. A building has been defined in section 2 sub section (5) and land in section 2 sub section 'Land ' under this definition includes land which is being built upon or is built upon or covered 682 with water, benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street. Under section 2 (49) 'property tax ' means a tax on buildings and lands in the city. Section 2(53) defines 'rack rent ' as the amount of the annual rent for which the premises with reference to which the term is used might reasonably be expected to let from year to year as ascertained for the purpose of fixing the rateable value of such premises and under section 2(54) 'rateable value ' means the value of any building or land fixed in accordance with the provisions of the Act and the rules for the purpose of assessment to property taxes. Under section 453 the rules in the Schedule as amended from time to time shall be deemed to be part of the Act. The relevant taxation rules are to be found in Chapter VIII of the rules. Rule 7(1) provides that "In order to fix the rateable value of any building or land assessable to a property tax there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year a sum equal to ten per cent of the said annual rent, and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever." Under r. 7(2) all plant and machinery contained ' or situate in or upon any building or land and belonging to any of the classes specified from time to time by public notice by the Commissioner, with the approval of the Corporation, shall be deemed to form part of such building or land for the purpose of fixing the rateable value thereof under sub r. (1) but, save as aforesaid, no account shall be taken of the value of any plant or machinery contained or situated in or upon any such building or land. Rule 7(3) runs: "A statement setting out clearly the classes of plant and machinery specified from time to time by the Commissioner under sub rule (2) and describing in detail what plant and machinery falls within each such class shall be prepared by the Commissioner under the directions of the Standing Committee and shall be open to inspection at all reasonable hours by members of the public at the chief municipal office." Rule 9 provides inter alia: "The Commissioner shall keep a book, to be called "the assessment book", in which shall be entered every official year (a) a list of all buildings and lands in the city. distinguishing each either by name or number as he shall think fit, and containing such particulars regarding the location or nature of each as will, in his opinion, be sufficient for identification; 683 (b) the rateable value of each such building and land determined in accordance with the provisions of this Act and the rules; (c) the name of the person primarily liable for the payment of the property taxes, if any, leviable on each such building or land; (d) if any such building or land is not liable to be assessed to the general tax, the reason of such non liability; (e) when the rates of the property taxes to be levied for the year have been daily fixed by the Corporation and the period fixed by public notice, as hereinafter provided, or the receipt of complaints against the amount of rateable value entered in any portion of the assessment book has expired, and in the case of any such entry which is complained against, when such complaint has been disposed of in accordance with the provisions hereinafter contained, the amount at which each building or land entered in such portion of the assessment book is assessed to each of the property taxes, if any, leviable thereon; Rule 10 provides for preparation of ward. assessment books for each of the wards into which the city is for the time being divided for the purpose of election and the ward assessment books and their respective parts shall collectively constitute the assessment book. Under r. 13(1) when the entries required by cls. (a), (b), (c) and (d) of rule 9 have been completed, as far as practicable, in any ward assessment book, the Commissioner shall give public notice thereof and of the place where the ward assessment book or a copy of it may be inspected. Under r. 15(i) the Commissioner must, at the time and in the manner prescribed in r. 13, give public notice of a day, not being less than 15 days from the publication of such notice, on or before which complaints against the amount of any rateable value entered in the ward assessment book will be received in hit office. Rule 16 provides for the time and manner of filing complaints against valuation. Rule 17 lays down that the Commissioner must give notice to each complainant of the time and place when his complaint will be investigated. Rule 18 prescribes for the investigation and disposal of the complaint in the presence of the complainant by the Commissioner. Under r. 19(1) when all such complaints, if any, have been disposed of and the entries required by cl. (e) of r. 9 have been completed in the ward assessment book the said book shall be authenticated by the Commissioner who shall 684 certify under his signature that except in the cases, if any, in which amendments have been made as shown therein, no valid objection had been made to the rateable value entered in the said book. Under sub r. (2) of the said rule, the ward assessment book shall thereupon, subject to such alterations as may be made under the provisions of r. 20, be accepted as conclusive evidence of the amount of each property tax leviable on each building and land in the ward in the official year to which the book relates. Rule 21(1) lays down that it shall not be necessary to prepare a new assessment book every official year and that subject to the provisions of sub r. (2) the Commissioner may adopt the entries in the last preceding year 's book with such alterations as he thinks fit, as the entries for each new year. Under sub r. (2) a new assessment book has to be pre pared at least once in every four years. The writ petition of which the papers were placed in detail before the Court is No. 133 of 1966 preferred by the New Manek Chowk Spinning and Weaving Mills Ltd. The respondents are: (1) the Municipal Corporation of the City of Ahmedabad, (2) the Deputy Municipal Commissioner of the same city and (3) the State of Gujarat. The challenge in this case relates to the validity of the assessment book for the year 1966 67. The complaint is that respondent No. 1 by the said book imposed property tax on the petitioner on the basis of a flat rate per 100 sq. ft. of the floor area of the petitioners ' property as also of all other textile mills, factories, university buildings etc. under r. 9 of the Taxation Rules. Annexure 'A ' to the petition gives a synopsis of the entries relating to the year of assessment 1966 67. It is divided into three parts, the first being headed 'buildings ', the second 'additional land ' and the third 'machinery '. So far as 'buildings ' are concerned, there are three columns, the first being the area of the building in square feet, the second monthly rental per 100 sq. and the third the annual rental. The building is again divided into two classes, one for processing and the other non processing. The monthly rental for the processing part of the building is taken at Rs. 6 10 0 per 100 sq. while that for the non processing portion is Rs. 5 4 0 per 100 sq. With regard to the additional land, the valuation is on the basis of the market rate per sq. ft. of land and as regards machinery the valuation is taken to be effective value of which the annual rental at 71 % is taken as the annual value. The petitioner 's complaint is that while under the provisions of the Act and the rules made thereunder it was clear that the rateable value of the property must be arrived at after determining the rack rent or the annual rental value in respect of each premises which is to be computed on the basis of the annual rent for which the property might reasonably be expected to let from year to year, the municipal corporation of Ahmedabad had adopted the method of determining the annual rent on a flat rate method according to the floor area, 685 irrespective of the locality, quality, age and nature of the property which was not a recognised method and was not permissible in law. According to the petition, a formula on the flat rate method of a fixed amount per 100 sq. for arriving at the rental was not only against the express provisions of the Act but was also against the recognised concepts of valuation in the Law of Rating. The method adopted by respondent No. 1 in this case was arbitrary and repugnant to the petitioner 's right guaranteed under article 14 of ' the Constitution. It was said that the buildings of the textile mills. were situate in different localities some of which were in the heart of the city and some on its outskirts. There was no uniformity in the floor area of the mills concerned nor was the age of the buildings in all cases the same. It was further complained that buildings in respect of the properties covered by the special property section included textile mills taxed on the fixed rate method whereas. buildings other than those of textile mills were taxed on the basis of annual rent for which such premises were reasonably expected to let from year to year. A further complaint was made that respondent No. 1 had assessed the property tax apart from buildings and lands on the plant and machinery of the petitioner. It was submitted that the imposition of property tax on plant and machinery was beyond the legislative competence of the State. Sub r. (3) of r. 7 was challenged as giving the Commissioner arbitrary and unguided power to set out the classes of plant and machinery and to describe what plant and machinery fell within each such class. for the purpose of assessment of property tax. Moreover, such classification by the Commissioner was made final and binding and no right was given to any person affected thereby to object to the same nor was any right of appeal against such decision of the Commissioner provided. A complaint was also made that respondent No. 1 had not prepared any ward assessment books for the year 1966 67. It is the petitioner 's case that the figures in the assessment book for the year 1966 67 were adopted from those of the previous year 1965 66, under r. 21 of the Taxation Rules. It was submitted that such adoption was invalid and improper inasmuch as the assessment books for the previous years were bad in law. The assessment books for the previous years were also bad in law inasmuch as the same were authenticated under r. 19 by the Deputy Municipal Commissioner and not by the Commissioner as contemplated in the said rule. The complaints were not considered by the Municipal Commissioner him self. It was said that the action of the Deputy Municipal Commissioner under a purported delegation of power by order dated November 20, 1964 was invalid as a quasi judicial function could not be delegated. In this connection, reference was. made to section 49(i) of the Act. It was further contended that even in the year 1966 67 the power of conducting proceedings under rr.13,. 15, 16, 17, 18 and 19 of the Taxation Rules had been deputed by the Municipal Commissioner in favour of the Deputy Municipal 686 Commissioner and as such deputation was bad in law. Finally, the petition proceeded on the basis that the imposition of property tax on the flat rate method on textile mills as under the special property section was ultra vires the Act and the rules made therein and was violative of the fundamental rights of the petitioner guaranteed under articles 14, 31(i) and 19 of the Constitution and the procedure adopted in preparing the assessment book was ultra wires the procedure laid down by the Act and the rules. The grounds of challenge are formulated in paragraph 35 of the petition. Among the prayers are a writ of mandamus or any similar writ directing respondent No. 1 to forbear from taking any steps for the imposition and realisation of the property tax pursuant to the preparation of the assessment book for the year 1966 67 relating to the Special Property section; a writ of certiorari or other similar writ to quash the assessment book for the said year; a writ of prohibition or other order restraining respondent No. 2, the Deputy Municipal Commissioner from acting under deputation under section 49 (1) and. other reliefs. The points raised in the counter affidavit are as follows: (1) The tax being based on the amount of rent for which the property is or may be let from year to year, such rent has got to be ascertained from either the actual or the hypothetical rent for which the property along with all the equipment like plant and machinery and amenities that it contains, is or may be let and such annual rent where the property is let as a factory equipped as a factory would be the rent that it would fetch as a factory and not as a bare building. (2) Rule 7(2) only gives power to the Corporation to include such plant and machinery as it may determine from time to time taking into consideration various factors like the situation of the city, its facilities for transport to other parts of the State and the country, whether the industry is well established or is just being developed etc. (3) Although under r. 9(b) the amount of the rateable value of the property in the previous year is to be entered, it is open to the Corporation to take any fresh circumstances into consideration before adopting the entry from the earlier year. Entry in col. (b) is neither the imposition of the tax nor the final amount on the basis whereof the tax is leviable. It is in the nature of a proposal by the Corporation and is subject to objection by the assessee and the tax becomes leviable after the objections have been disposed of and the amount is entered in column (e). (4) After the tax has become leviable under the Rules, the assessee is entitled, if he so desires, to file an appeal under section 406 against either the rateable value or the tax fixed or charged under the Act. The Court of Small Causes can hear and determine the appeal. Under section 4 10 there is a provision for a reference to the District Court and section 411 provides for an appeal to it. The High Court would have the power of revision of the order of the District Judge. (5) The fixing of the rateable value on 687 floor area basis is in accordance with the accepted principles and methods in the Law of Rating. In various cities it is common to let out premises on the basis of the floor area. The computation of rateable value by this means depends on the estimate of the annual, rent at which the property may be reasonably expected to let from year to year. The situation of the building, The age of the building, the material used for the building are not relevant for, if the mill containing all plant and machinery and other equipment is let, it is let as a factory for carrying on a business of manufacture of textiles. The grievance of the petitioner is open to redress under section 406 and the other sections mentioned. (6) It is not incumbent on respondent No. 1 to maintain any ward assessment books, and (7) under section 49(1) the power to dispose of complaints against the fixing of rateable value was duty deputed to the Deputy Commissioner and there was nothing illegal about it. The points formulated by Mr. section T. Desai are as follows: (1) The method of adopting a flat rate for a floor area for determining the annual value adopted by the Municipal Corporation of Ahmedabad was against the express provisions of the Act. (2) The method was also in violation of all recognised concepts and principles of valuation for the purpose of rating. (3) The imposition of tax on a flat rate method was violative of article 14 of the Constitution. (4) Rule 7(2) and r. 7(3) were ultra vires the Constitution as beyond the legislative competence and entry 49 of List 11. (5) The delegation of powers of the Commissioner to the Deputy Commissioner was. bad as it involved the delegation of quasi judicial power, and (6) Rule 7(3) suffered from excessive delegation and was violative of ' article 14 of the Constitution. The first, second and third points may be taken together. In the forefront of his argument Mr. Desai relied on a decision of this Court in The Lokmanya Mills vs The Barsi Borough Municipality.(1) There the common question in the appeals related to the validity of r. 2C framed under the Bombay Municipal Boroughs Act, 1925. Under section 73 of the Act the Municipality was entitled to levy a rate on lands and buildings. In 1947 new rules were made after obtaining the approval of the Government of Bombay for the purpose of enhancing the assessment of lands and buildings within the area of the Municipality. Rule 2C of the new rules provided that: "As regards Mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40/per 100 square feet or part thereof for every floor, ground floor or cellar and the tax shall be assessed on the said annual letting value, at the ordinary rate. (1) ; 688 The Municipality prepared an assessment list under the new scheme of taxation in respect of factories and buildings relating thereto and issued notices of demand calling upon the appellants to pay house tax and water tax so assessed. The question before this ,Court was whether rule 2C was ultra vires. This Court examined the provisions of the Act under which the rate could be levied on lands and buildings ' assessed on the valuation thereof based on annual letting value. It was said: "If the rate is to be levied on the basis of capital value, the building to be taxed must be valued according to some recognised method of valuation: if the rate is to be levied on the basis of the annual letting value, the building must be valued at the annual rental which a hypothetical tenant may pay in respect of the building. The Municipality ignored both the methods of valuation and adopted a method not sanctioned by the Act. By prescribing valuation computed on the area of the factory building, the Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a tenant may reasonably pay, but rendered the statutory right of the tax payer to challenge the valuation illusory. An assessment list prepared under section 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation. By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax payers may raise is in substance restricted to the area and not to the valuation. " It was further observed that if the Municipality had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not be open to challenge. The Court further noted: "In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as warehouses, godowns and shops of the Mills situate in the compound of the mills, may be separately let at the uniform rate prescribed by the Municipality. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation. " It may be interesting to note that an Act was passed to validate the said imposition. On a Writ Petition No. 1476 of 1966 the Bombay High Court held the Validating Act to be ultra vires. The 689 contention put forward before the Bombay High Court was inter alia that the levy of a tax on buildings and lands on the basis of floor area was necessarily arbitrary and capricious in that the valuation of buildings and lands so arrived at could have no relation to their actual value, for the value of buildings depended, among other things, upon location, age, mode of construction, material used etc. A uniform rate on buildings and lands of widely differing values was clearly discriminatory because of lack of classification leading to inequality. It was further argued that there was violation of article 14 in that the owners of mills and factories were discriminated against as compared to the owners of other buildings and lands. These grounds were upheld by the Bombay High Court. Reference was made by Mr. Desai to decisions of other High Courts wherein similar observations were made. In Bhuvanes wariah vs State(1), the Mysore Buildings Tax Act, 1963 and Schedule 11 thereto were challenged before the High Court of Mysore. It was pointed out that under the scheme of the Act a cow shed and an ultra modern cinema house in the best locality would be charged with the same amount of tax if the extent of floorage of both were the same. The High Court held that the Act suffered from lack of rational classification because: "The floorage basis is not only unscientific, it is something arbitrary and mechanical. It does not conform to any of the known principles of taxation. In the very nature of things, under that basis the incidence of tax must fall unevenly on things similar. " N. Kunhali Haji vs State of Kerala(2) was a case where under the Kerala Buildings Tax Act, 1961 (19 of 1961) tax was sought to be imposed not on the basis of letting value but on the floor area of buildings. It was held that the lack of classification had resulted in inequality with the result that the provisions of the Act were held to be invalid. Relying on the above decisions, Mr. Desai argued that the method adopted by the Municipal Corporation of Abmedabad was against all known principles of rating and was violative of article 14 of the Constitution. He submitted that there were a number of textile mills situated in different parts of the city some of which were old and some were of fairly recent origin. Their method of construction was not the same, some being more permanent in the nature of things than others. Apart from the question of the valuation of plant and machinery, Mr. Desai argued, it was impossible to suggest that a hypothetical tenant would be agreeable to take on rent the building of a mill which was well built and of recent origin as another which was fairly old and not constructed with the same kind of material. Mr. Desai further argued that the situation of the mill was another factor which any tenant would (1) A.I.R. 1965 Mysore page 170. (2) A.I.R. 1966 Kerala 14. 690 take into consideration and even if the buildings of the two mills were otherwise similar, a tenant would not agree to pay for one situated on the outskirts of the city the same rent as he would be willing to pay for the one in the heart of it. In these circumstances, he argued it was wholly unreasonable to think that a tenant would be willing to pay Rs. 6 10 0 per 100 sq. R. of the floor area whether it was in the heart of the city or in the outskirts of it, whether the building was old or whether it was new and whether it was well constructed or ill constructed. Mr. Setalvad tried to argue that such a method of valuation was not unknown and in any event a person who wanted to take on rent a textile factory would only be concerned with what profits he could make out of it and that it did not matter to him as to where it was situate, in the city, whether the building was old or whether it was new. or whether it was constructed properly with first class material or not. According to Mr. Setalvad, the tenant would only go by the use to which the building could be put. So far as the methods of valuation are concerned, we may refer to certain well known n textbook,, on the subject. Halsbury in Vol. 32 (page 76, article 106 Third Edition) points out: "Except in the case of public utility undertakings which, in the absence of special circumstances, must as a matter of law be valued on the profits basis, there is no rule of law as to the method of valuation to be adopted for rating. " This does not however mean that it is open to municipal authorities to fix upon any scale and say that they will adopt it. They must show, if challenged, that the scale adopted by them allows the fixing of an annual value and provides a basis for determination of the same as that which a hypothetical tenant might be expected to pay for the building. All the textbooks lay down certain methods of valuation. As Halsbury points out at page 77, article 108: "In the absence of rental evidence of value, the accounts, receipts or profits of the occupier of the hereditament may be relevant. The profits themselves are not rateable but they may serve to indicate the rent at which the hereditament might reasonably be expected to let, particularly whether profit is the motive of the hypothetical tenant in taking the hereditament, or where, the trade can only be carried on upon that hereditament. " In Article 109, the learned author points out "Where neither actual rents nor the profits of trade afford evidence of annual rental value, a percentage of the cost of construction of structural value of the hereditament, or of a suitable hereditament, is sometimes taken as evidence. " 691 This is referred to loosely as "the contractor 's method". The value taken is sometimes called the "effective" capital value, that is to say, the capital value leaving out of account expenditure on unnecessary ornamentation, or accommodation surplus to requirements and after allowing, if necessary, for age and obsolescence. The percentage to be applied to capital value is that prevailing in the market, and not necessarily that at which the actual occupier can borrow or obtain money. Mr. Setalvad placed reliance on Faraday on Rating (5th Edition) where the learned author gives four recognised methods of arriving at the annual value of a hereditament at page 24 of the book, these being 1. The "competitive or comparative method" i.e. by finding out rents actually paid for the hereditament in question and/or others of a similar kind, adjusting them to bring into line with the statutory conditions, and thus arriving directly at an estimate of the rent. . 2. The "profits basis," or calculation by reference to receipts and expenditure, which is now required to be applied to certain public utility undertakings, and may properly be applied to any other hereditament on which a business is carried on which enjoys privileges in the nature of a monopoly. . 3. The "contractor 's method," by which it is assumed, in the absence of any other better way of estimating the rent, that the tenant would arrive at it by finding the figure for which a contractor would provide him with premises neither more nor less suitable for his purpose, and the rate of interest on that cost which the contractor would charge him as rent. The "unit method" by which schools may be valued at so much a place, hospitals at so much a bed, or certain industrial premises at so much a furnace, or other unit of output. Mr. Setalvad laid particular stress on a passage at page 164 reading : "Modern factories are frequently found in groups due to Town Planning or in some cases because Trading Estates have been developed. Under these conditions it is often possible to arrive at the rental value per foot super of floor area by applying the contractor 's basis to typical factories or because there are sufficient rents or by a combination of the two methods. " This is followed by an illustration of a bakery and warehouse which goes to show that different portions of the building which were of different nature were measured and valued differently and then M2Sup. CI/67 15 692 on the valuation of the total the floor area method was adopted for the purpose of similar buildings. As the learned author himself. points out at page 1 5: "The floor area method of valuation is usually used ' where there are numerous factories in an area mostly similar and used for the same trade. In the North mills, are frequently valued on this method." The learned author also stresses that great care must be taken in applying the price per square foot which will vary according to the character of the factory or mill. Lower down in the same page, the learned author points out that a factory put up years ago may contain machinery which has become old fashioned and modern machines for the same purpose might occupy far more or less space, and therefore, require larger or smaller buildings, and probably reduce the wages bill and effect other economies whilst at the same time giving more output than the old cumbersome undertaking. According to the author, the value of the old factory, from a rental point of view, would be less than that of a new one with the same power of production, since it would be impossible to find a tenant who would give the same rent for both concerns in as much as he could obviously operate in the new buildings more economically than in the old one. There is nothing in the counter affidavit to show that conditions in the City of Ahmedabad with regard to textiles mills are such, as would make the method laid down at p. 164 of Faraday 'section book applicable. The affidavit does not purport to show that the factories were: constructed at or about the same time or in groups or were so similar in their operation that their rental value could be determined at per foot super of floor area applying the contractor 's There is nothing, to show that any textile factory was, valued on the contractor 's basis and that from the figures of valuation go worked out, the rental value per foot super of floor area wag determined On, the other hand, the affidavit suggests that because 'in various cities it was common to let out premises on the basis ,of floor area, the municipal authorities of Ahmedabad had resorted to this method for fixing the rateable value. We can take judicial notice of the fact that sometimes godowns or buildings constructed for office purposes are let out on the basis of floor area but even then, the rate would vary according to the nature of the building and according to the site of the building in the city. It would also depend upon the age of the building and the amenities provided therein. It would be impossible to say that in the City of Ahmedabad a tenant would be willing to pay at the same rate of rent for factory accommodation, no matter where the building was situate or when it was put up or how it was constructed. 693 Our attention was also drawn to other well known books on Rating like Ryde on Rating, Bean and Lockwood on Rating an Graham Eyre on Rating. Incidentally, we may refer to Witton Booth on Valuations for Rating (Fourth Edition) at page 125 wherein the learned author states "Reductions of floor areas to units, as Already described, are necessary to effect reliable comparisons, but it is merely a mechanical process used in preparing material for the valuation, the actual valuation being the decision and application of the appropriate rate or rental value per unit of area. This may be exactly to a standard, and, indeed, it probably will be to the majority of properties where these are so nearly alike in character as to be regarded for rating purposes as identical. Where, however, rates or rental values per unit of area ale applied indiscriminately, without discernment on the wholesale, as it were inequalities are certain to arise, and these give rise to the whole method being caustically Preferred to as "valuations by the foot rule. " The above comment is sufficient to show that this method can only be applied Where the majority of properties are so nearly Alike in character as to be regarded identical for rating purposes. There is no such statement in the affidavit. We are therefore not satisfied that conditions prerequisite for determination of annual value of textiles factories in Ahmedabad on the basis of rental value per foot super of floor area existed at the relevant time nor has. it been shown to us that the. so called contractor 's basis was adopted by the municipal authorities. of Ahmedabad. The method is not. also one which is generally recognise by authorities on rating. Applied indiscriminately as it appears to have been done in this case it is sure to give rise to, inequalities,: as there has been no classification of the factories on any rational basis. Further, there does not seem to be any basis for dividing the factories and the buildings thereof under two general classes as buildings.used for processing and buildings for Reprocessing. purposes. What was said by this Court in The Lokmanya Mills ' case(1) applies with equal force to what has been done here and we must hold that the municipality did not observe the law and failed in its duty to determine the rateable value of each building and land, comprised in each of the textile factories in terms of r. 9(b) of the rules under the Bombay Provincial Municipal Corporations Act, 1949 so tar as the assessment book for the year 1966 67 is concerned. Mr. Setalvad argued that at that stage there is only a proposal and even if the municipality had acted arbitrarily it was open to the (1) ; 694 assessees to take objection thereto and have proper valuations made and the assessment book prepared properly. We cannot accept this argument. If the municipality fails in its initial duty to act in terms of r. 9(b) it does not lie in its mouth to say that any irregularity, however patent on the face of it, is open to correction. Moreover, the methods of correction in this regard are really illusory. The Small Causes Court cannot decide the applicability of article 14 of the Constitution and according to the judgment of the Bombay High Court in Balkrishna vs Poona Municipal Corporation(1) (by which the District Judge would be bound). ". the words used in section 406(1) of the Act,. do not cover the vires of the tax or the legality of the tax which is sought to be levied. " Earlier, the learned Judges had pointed out after noting ss, 406 to 413 that : "the decision of Judge aforesaid upon any appeal against any such value or tax if no appeal is made therefrom under section 411 and if such appeal is made the decision of the District Court in such appeal shall be final." From this it follows that it would be useless for the assessee to take objections or file appeals against the decisions on rateable value to the authorities prescribed by the Act if he was challenging the determination of the rateable value as being violative of article 14 of the Constitution. It is no answer to such a charge to say that the rateable value could be determined properly by the municipal authorities acting under the Act and the rules thereunder when they do not resort to any of the well known methods of valuation and cannot justify their arbitrary method. With regard to the writ petitions questioning the annual values appearing in the assessment books for the years 1964 65 and 1965 66 which,were similarly prepared, a point of res judicata was taken in that some of these mills which have filed writ petitions before this court had challenged the assessment book in Writ petitions under article 226 of the Constitution before the Gujarat High Court and our attention was drawn to the judgment of the Gujarat High Court in W.P. No. 1365 of 1965 decided by that court very recently. The decision in that case cannot operate as res judicata for the simple reason that the learned Judges pointed out at page 141 of the transcript of the judgment made over to us that there were not sufficient averments with regard to the plea of discrimination and violation of article 14 and the submission based on these grounds was therefore rejected and not gone into. To quote from the judgment: "In the absence of any specific averment to the aforesaid effect, it is quite clear that the aforesaid plea cannot be (1) 65 D. L. R. 119. 6 9 5 said to have been properly pleaded. Therefore, we reject that submission on that ground. " Moreover, it appears to us that the right of appeal in a case where the rateable value is challenged on the ground of article 14 is hardly of any use to the assessee. As already noted, section 128 of the Act shows that a municipal tax may be recovered by presenting a bill or by serving a written notice of demand or by attachment and sale of the defaulter 's immovable property etc. As the Commissioner is not likely to pay heed to any complaint against the determination of any rateable value based on article 14 of the Constitution, he is bound to authenticate the assessment book under r. 19 and can under r. 39 cause to be presented to the assessee a bill for the amount of the tax due. Under r. 41 he can serve upon the person liable for the payment of the tax a notice of demand in form if the amount of the tax has not been paid into the municipal office or deposited with him as required by sub section (2) of section 406 within 15 days from the service of the bill. Rule 42(1) lAys down that if the person to whom the notice of demand has been served under r. 41 does not within 15 days from the said service pay the sum demanded or show sufficient cause for non payment of the same to the satisfaction of the Commissioner and if no appeal is preferred against the said tax, such sum with costs of recovery may be levied under a warrant in form to be issued by the Commissioner by distress and sale of movable property of the defaulter or the attachment and sale of immovable property of the defaulter etc. Section 406(1) provides for appeals against any rateable value or tax fixed or charged under the Act. Section 406(2) provides inter alia as follows: "No such appeal shall be heard unless (a) it is brought within fifteen days after the accrual of the cause of complaint; (b) in the case of an appeal against a rateable value a complaint has previously been made to the Commissioner as provided under this Act and such complaint has been disposed of; (e) in the case of an appeal against a tax, or in the case of an appeal made against a rateable value after; a bill for any property tax assessed upon such value has been pre sented to the appellant, the amount claimed from the appellant has been deposited by him with the Commissioner. " The net result of all this is that unless the assessee pays the amount of tax demanded, his appeal cannot be heard so that if he questions the rateable value or the levy of the tax, he must in any event, deposit the amount demanded. In effect, the Act and the appeal rules do not make any provision for relief to an assessee 696 who complains that the assessment book has been prepared in violation of the law. This may be illustrated from what happened in the case of the Ahmedabad Laxmi Cotton Mills Co. Ltd. who have preferred Writ Petition No. 207 of 1966. In this case, the municipality prepared the assessment book for the year 1965 66 adopting the figure from the previous year under. The Mills finally complained on July 3, 1965 raising various objections regarding the jurisdiction and the validity of the imposition of property tax on the floor area method. These were over ruled and the assessment was finalised by an order dated September 15, 1965. On September 17, 1965 the municipality issued a bill in respect of the assessment. The Mills filed a tax appeal on September 27, 1965. On October 7, 1965 a notice of demand under r. 4 1 (1) of the Taxation Rules was made on the Mills. A Writ Petition was filed in the Gujarat High Court being Special Civil Application No. 1155 of 1965 on October 16, 1965. This petition along with various other petitions filed by other textile mills was dismissed by a common judgment in Application No. 1365 of 1966 on May 5, 1966. On May 7, 1966 the municipality issued an order of attachment under r. 45(1) of the rules. The Mills filed another Writ Petition in the Gujarat High Court against the issue of the order of attachment, but this was dismissed in limine on July 18, 1966. It may be noted that the Mills in common with other Mills had preferred an application for grant of a certificate under articles 132 and 133 of the Constitution against the dismissal of the Writ Petition on May 5, 1966 and such certificate was granted on June 20, 1966. Mr. Desai 's next challenge was directed against sub rr. (2) and (3) of r. 7. According to him, it was beyond the legislative competence of the State to levy a property tax on plant and machinery The relevant entry in List II of the 7th Schedule is item 49, namely, 'Taxes on land and buildings '. The corresponding entry in List 11 under the Government of India Act, 1935 was taxes on "lands, buildings, hearths and windows." Mr. Desai contended that the legislature was not competent by the definition of 'land ' in section 2(3) of the Act to include plant and machinery even if they were attached to the earth or permanently fastened to anything attached to the earth. Mr. Desai argued that it may be that the definition of 'land" in certain Acts embraces plant and machinery but when the legislature rates to impose a tax on plant and machinery in the garb of land it travels beyond its powers. He argued that apart from the definition in certain Acts and deeming provisions contained therein, plant and machinery can never be said to form part of the land or included in land or building. Counsel conceded that entries in legislative lists were certainly to be construed very widely but even then no artificial meaning or arbitrary extension of the meaning of the words in an entry could be allowed. In this connection, our attention was drawn to the observations 697 of Gwyer, C.J. in re. The Central Provinces and Berar Act No. XIV of 1938(1) that ". a broad and liberal spirit should inspire those,. whose duty it is to interpret it, but. I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors. " In Diamond Sugar Mills Ltd. & Anr. vs The State of Uttar Pradesh & Anr.(2) the question was, whether entry 52 of, List 11 of the ' Seventh Schedule which empowered State Legislatures to make ii law relating to "taxes on the entry of goods Into a local area for consumption, use or sale therein,," sanctioned the passing of the U.P. Sugarcane Cess Act, 1960 authorising the State Government to impose ,a on the entry of sugarcane in the premises of a factory for I consumption or sale therein. It Was contended by the appel lant that the premises of a factory was not a "local area" within the meaning of the said Entry. The majority of Judges in that case held the impugned legislation to be beyond the competence of the State Legislature and observed: "In considering the meaning of the words "local area" in entry 52 we have, on the one hand to bear in mind the salutary rule that the words conferring the right of legislation should be interpreted liberally and the powers conferred should be given the widest amplitude;: on the other hand, we have to guard ourselves against extending the meaning of the words beyond their reasonable connotation, in an anxiety to preserve the power of the legislature. " In this case, counsel argued the language was clear. and unambiguous and therefore it was not open to resort to any artificial definition. He also referred to Legislative Practice in India on this point and contended that the same was against giving an extended meaning to the expression 'land and buildings ' so as to include plant and machinery. In re. The Central Provinces and Berar Act No. XIV of 1938(3), the question was whether a tax on retail sales of 'motor spirit and lubricants was ultra vires the Provincial Legislature being a duty of excise within the meaning of entry No. 45 in List 1 of the 7th Schedule to the Government of India Act, 1935 and not within entry No ' 48 of List 11 of that Schedule. There Gwyer, C. J. referred to the legislative practice preceding the Constitution Act and said at.p. 53 "Lastly, I am entitled to look at the manner in which Indian Legislation preceding the Constitution Act had (1) at 37. (2) [1961] 3 section C.R. 242.@ 248. (3) 698 been accustomed to provide for the collection of excise duties;. . In all the Acts by which these duties were imposed it is provided (and substantially by the same words) that the duty is to be paid by the manufacturer or producer, and on the issue of the excisable article from the place of manufacture or production. " In the same case, Sulaiman, J. observed: "Our attention has not been drawn to any provincial enactment, which might have imposed any excise duty on the retail sale of motor spirit and lubricants, or for that matter on the retail sale of any other goods." That courts can look into the legislative practice was again adverted to in Ralla Ram vs The Province of East Punjab(1) where the question related to the vires of a Punjab Act taxing the owner of buildings and lands on their annual value. There the contention was that the tax was really one on income and as such beyond the competence of the Provincial Legislature. The Court referred to the Central Provinces and Berar Act 's case and examined the legislative practice in India. Mr. Desai referred us to a large number of Municipal Acts passed by different Provincial and State Legislatures in India both before and after 1935 to show that plant and machinery were expressly excluded from the purview of such taxes. We may refer to a few only of them which are : Punjab Municipal Act, 1911, section 3(1); The Madras Act IV of 1884 section 65(2); Madras District Municipalities Act, 1920 section 82(2) proviso (b); The Patna Municipal Corporation Act, 1951, section 130(3); The Bombay District Municipalities Act, 1911, s ' 3(11); The Bombay Municipal Boroughs Act section 3(1); The Bombay Municipal Corporations Act, 1988, section 154(2); The Calcutta Municipal Act, 1899, section 151 proviso (2); North West Province and Oudh Municipal Act, section 3(1) proviso; The Central Provinces Municipalities Act of 1903 section 36 proviso; and The Central Provinces and Berar Municipalities Act, 1922 section 73 proviso. Mr. Desai also drew our attention to the English Rating and Valuation Act, 1925. Therein section 2(1) gives the power to levy a consolidated rate and sub section (3) states that the rate shall be at a uniform amount, per pound on the rateable value of each hereditament in that area. Section 24(1) of that Act provides that plant and machinery in or on the hereditament as belongs to any of the classes specified in the Third Schedule to the Act shall be deemed to be a part of the hereditament. This according to Mr. Desai went to show that even in England plants and machinery were not considered part of the hereditament and were made so by a sort of fiction. It was argued that (1) (19481) F.C.R. 207. 699 by a deeming provision the meaning of a word may be extended, but when the language was clear, no such extension by way of interpretation was possible. Our attention was also drawn to a number of sections in the Bombay Act of 1949 which on the face of it, went to show that land in those sections was clearly not meant to include the plant and machinery situate therein. On this question, Mr. Setalvad relied on the principles of rating of plant and machinery in England. We have already noted the provisions of the Rating and Valuation Act, 1925. It is pointed out in Ryde on Rating (Eleventh Edition) at p. 399 : "From towards the end of the eighteenth century to the passing of the Rating and Valuation Act, 1925, there has been controversy as to the inclusion in valuation of machinery and plant, and as to the extent to which (if machinery and plant were included) the valuation was to be affected. The series of judicial authorities on this subject extends from R. vs St. Nicholas, Gloucester, decided in 1783(1) to Kirby vs Hunslet Union (2) and Smith vs Willesden Union(3), decided in 1906 and 1919. The effect of the decision of the House of Lords in Kirby vs Hunslet Union(2) was to sweep away the principles on which a discrimination had previously been made between machinery and plant which was to be "taken into account" in valuation, and that which was not such as physical annexation to the hereditament, or legal annexation in the sense that the thing in question would pass to the tenant at landlord 's fixtures on a demise. . ; and practically to direct the rating authority to value the hereditament equipped with Machinery and plant as it appears to the eye.11 The matter is thus put in Witton Booth on Valuations for Rating (Fourth Edition) at p. 575 : "The rateability of plant and machinery under the law which applied universally before 1925, and which still applies to hereditaments valued by reference to the profits 'earned therein depends on legal decisions on what is comprehended by the term "land". These decisions were based on principles applicable to fixtures generally, of which rateable plant and machinery were one kind. " It will therefore be noticed that the rateability of plant and machinery depended on judicial decisions as to the meaning of the (1) (3) (2) 700 word "land". There is no reason why we should accept those decisions as to what was comprehended by the term "land" when we find in our statutes plant and machinery being excluded therefrom. In Kirby vs Hunslet Union (1) Lord Halsbury expressed; him self thus at p. 49 ". decline myself to enter into what I may call the original equities which might have guided this matter. It is, enough for me that a long series of decisions, for certainly half a century, have established the bald proposition, which is all I am insisting upon, namely '. that although the machinery may not be part of the freehold, it yet is to be taken into account, and in saying that, I do not want to muffle it in a phrase, but what I mean by that is, that to increase the amount of the rate which is exacted from the tenant you may enter into that question and form a judgment upon it, although, as a matter of fact, the machinery may hot be attached to the free hold. " There, the Act in question was Parochial Assessment. Act, 1836 under which the assessment of hereditaments was regulated on the principle that the rateable value was the rent which might be expected to be given for the hereditament alone. The contention on behalf of the appellant before the House of Lords was that machinery affixed to the soil so as to become a part of the freehold must be taken into account in assessing the rateable value but no other machinery. Delivering judgment, Lord Halsbury pointed out that : "The overseer had a comparatively simple problem to solve, although it is difficult enough sometimes; he sees the place being conducted as a brewery, or an iron foundry, or what not. , he looks at the premises, he looks at the furniture which is necessary for carrying on the business as a brewery or foundry; he does not in his own mind analyze, and to my mind he ought 'not to analyze, what would be likely to be the initial arrangements between the intended brewer and the owner of the freehold, to see who should provide this or that engine, or what not, but he looks at the premises as they are, as they are being occupied, and as they are being used, and he says to himself, "Well, looking at the whole of the place, such and such is the rent which would probably be paid by a tenant from year to year for such an establishment as this." (1) 701 .rm60 The problem in our case is not quite. the same. The hypothetical tenant would certainly take, into Consideration the machinery in the building if he was going to rent it for the purpose of running a textile factory. But if the State Legislature had power to levy a tax only on land and buildings, we do not see how the same could be levied on machinery contained in or situate on the building even though the machinery was there for the use of the building for a particular purpose. It therefore appears to us that r. 7(2) of the rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State. The rule also suffers from another defect, namely, that it does not lay down any principle on which machinery is to be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fixing the, rateable value. To this, Mr. Setalvad argued that if the building was equipped with machinery for the purpose of running a textile mill, whatever machinery was there for the purpose would be valued. According to him, the question would be, which of the machinery would help in the enjoyment of the property and thereby add to its rateable value. Unfortunately, the specification of the classes is done from time to time by the Commissioner with the approval of the Corporation irrespective of the question as to where they are to be found. It therefore depends on the arbitrary will of the Commissioner as to what machinery he would specify and what he would not. Moreover, he is the only person who can examine this question. There is no right of appeal from any specification made under sub r. (3) of r. 7 except that the Commissioner is to act under the directions of the Standing Committee. Rule 7(2) shows that all plant and machinery may not be taken into account for the purpose of valuation and any such plant or machinery which is not included in the classification may escape rateability however much they may be prized by the tenant who takes the premises on rent. It seems to us, therefore, that r. 7(2) is beyond the legislative competence of the State Legislature and sub r. (3) of r. 7 is also invalid on account of excessive dele gation of powers by the Legislature. In view of the above, it is not necessary to go into the question as to whether the Deputy Municipal Commissioner could exercise quasi judicial powers of the Commissioner as regards the determination of the rateable value under section 49(1) of the Act and we express no opinion thereon. In the result, the petitions are allowed. A writ of mandamus will issue in each case directing the respondent No. 1, Municipality, to treat the relevant entries in the assessment book for the years 1964 65. 1965 66 and 1966 67 relating to special property 702 section questioned in these petitions as invalid and cancelled; and directing respondent No. 1 to prepare fresh assessment lists for the said years relating to the textile mills and other properties dealt within the said special property section. The petitioners are entitled to costs of these applications. One set of hearing fee. G.C. Petitions allowed.

Held, that in a proceeding under section 36 of the Bengal Money Lenders Act, 1940, it is not competent to the court to go behind the decree and embark on an enquiry as to whether the decree holders on record were in fact benamidars for another person. Scope of section 36 of the Act discussed. Renula vs Manmatha (72 I.A. 156) and Bank of Commerce Ltd. vs Amulya Krishna Basu Boy Chowdhury ([1944] F.C.R. 126) referred to.

Special Leave Petition (Civil) No. 11638 of 1986 From the Judgment and Order dated 12th September, 1986 of the Madhya Pradesh High Court in M.P. No. 2845 of 1986. B.K. Rawat, M.K. Dua, Aman Vachher and S.K. Mehta for the Petitioners. 1003 The following Order of Court was delivered ORDER Since this petition is filed against an interim order we do not propose to interfere with the order of the High Court. The Petition is dismissed. We, however, deprecate the practice of granting of temperory permits repeatedly to ply stage carriages for short periods even when it is made out that there is a grave need for increasing the number of regular services on the routes in question in public interest. In many cases this practice has led to undesirable results. In all such cases the proper action to be taken by the Regional Transport Authorities is to grant regular permits in accordance with law either by inviting applications for grant of permits or on the applications made by intending operators suo motu under section 57(2) of the . We hope that the Regional Transport Authorities will take necessary steps in accordance with law in respect of all the routes to alleviate the suffering of the travelling public. M.L.A. Petition dismissed.

In a petition for special leave against an interim order of the High Court, ^ HELD: (1) As the special leave petition is filed against an interim order of the High Court, this Court does not propose to interfere. [1003B] (2.1) The practice of granting of temporary permits repeatedly to ply stage carriages for short periods even when it is made out that there is a grave need for increasing the number of regular services on the routes in question in the public interest is deprecated. In many cases this practice has led to undesirable results. [1003B C] (2.2) The proper action to be taken by the Regional Transport Authorities in such cases is to grant regular permits in accordance with law either by inviting applications for grant of permits or on the applications made by intending operators suo motu under section 57(2) of the . [1003C D]

32 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. V. A. Seyid Muhamad, for the petitioner. N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents. March 22. The Judgment of the Court was delivered by section K. DAS, J. This is a writ petition under article 32 of the Constitution. The relevant facts lie within a narrow compass, and the short point for decision is whether in the circumstances of this case the petitioner can complain of an infringement of the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution. The relevant facts are these. The petitioner 's husband Kunhi Moosa Haji, it is alleged, carried on a hotel business in Karachi which is now in Pakistan. The petitioner stated that her husband had been carrying on the said business since 1936. It is not in dispute, however, that in the relevant year, that is, 1947, when the separate dominion of Pakistan was set up, the petitioner 's husband was in Karachi. The petitioner stated that at the end of August, 1949, her husband returned to Malabar, in India. On behalf of ' respondent No. 1, the Ministry of Rehabilitation, Government of India, it is averred that the petitioner 's 507 husband surreptitiously returned to India without a valid passport in 1953 and was arrested for an alleged infringement of the provisions of the Foreigners Act. On December 7, 1953, Kunhi Moosa Haji transferred in favour of his wife his right., title and interest in seven plots of land, details whereof are not necessary for our purpose. On December 8, 1954, about a year after the transfer, a notice was issued to both the petitioner and her husband to show cause why Kunhi Moosa Haji should not be declared an evacuee and his property as evacuee property under the provisions of the , (hereinafter called the Act). The petitioner 's husband did not appear to contest the notice, but the petitioner entered appearance through her advocate. By an order dated January 29, 1955, the Assistant Custodian of Evacuee Property, Tellicherry, declared that Kunhi Moosa Haji was an evacuee under the provisions of section 2(d)(1) of the Act and the plots in question were evacuee property within the meaning of section 2(f) of the Act. From this decision the petitioner unsuccessfully carried an appeal to the Deputy Custodian of Evacuee Property, Malabar, who affirmed the decision of the Assistant Custodian, Tellicherry, by his order dated July 11, 1955. The petitioner then moved the Deputy Custodian of Evacuee Property, Malabar, for a review of his order under section 26(2) of the Act. This petition also failed. Then the petitioner moved the Custodian General of Evacuee Property, New Delhi, in revision against the order of the Deputy Custodian. This revision petition was dismissed by the Custodian General by his order dated April 9, 1956. The petitioner then made an application to the Ministry of Rehabilitation for an order of restoration of the property in her favour under the provisions of section 16(1) of the Act. This application was also rejected. The petitioner then moved the High Court of Kerala by means of a writ petition under article 226 of the Constitution. This petition was, however, withdrawn by the petitioner on the ground that the Kerala High Court had held in an earlier decision reported in 508 Arthur Import & Export Company, Bombay vs Colletor of Customs, Cochin (1) that when an order of an inferior tribunal is carried up in appeal or revision to a superior tribunal outside the court 's jurisdiction and the superior tribunal passes an order confirming, modifying or reversing the order, the High Court cannot issue a writ to an authority outside its territorial jurisdiction. Then, on March 5, 1959, the petitioner filed the present writ petition and the basis of her contentions is that the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution have been infringed and she is entitled to an appropriate writ or order from this Court for the restoration of the property transferred to her by her husband. In her petition, the petitioner has contested the validity of the notice issued on December 8, 1954, on the ground of noncompliance with certain rules. She has also contested on merits the correctness of the findings arrived at by the relevant authorities that Kunhi Moosa Haji was an evacuee and the property in question was evacuee property. Learned Counsel for the petitioner tried to argue that the invalidity of the notice issued under section 7 of the Act went to the root of jurisdiction of the subsequent orders. We do not, however, think that any question of lack of jurisdic tion is involved in this case. The petitioner appeared in response to the notice and raised no point of jurisdiction. In subsequent proceedings before the Deputy Custodian and the Custodian General she contested the correctness of the orders passed on merits: no question of jurisdiction was canvassed at any stage and we do not think that the notice suffered from any such defect as would attract the question of jurisdiction. We need only add that no question of the constitutionality of any law is raised by the, petitioner. In the view which we have taken, this petition is concluded by the decision of this Court in Sahibzada Saiye d Muhammed Amirabbas Abbasi vs The State of Madhya Bharat (2) and it is not necessary to consider on merits the contentions urged on behalf of the petitioner. The position as we see it is this. This Court (1) (1958) 18 k. L.J. 198. (2) ; 509 can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution. In the present,case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of section 2(d) of the Act and (2) that his property was evacuee property. It was open to the petitioner to challenge the decision of the Custodian General, New Delhi, by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian General or of the other appropriate authorities under the Act. The petitioner did not, however ', choose to do so. The result, therefore, is that the order of the custodian General has become final. Under section 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding. It is, indeed, true that section 28 of the Act cannot affect the power of the High Court under articles 226 and 227 of the Constitution or of this Court under articles 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the peti tioner has been found not to exist, it is difficult to see bow any question of the infringement of that right can arise as a ground for a petition under article 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her 510 fundamental right under articles 19(1)(f) and 31 of the It is worthy of note that the relevant provisions of the Act have not been challenged before us as unconstitutional, nor can it be seriously contended before us that the orders of the appropriate authorities under the Act can be treated as null and void for want of jurisdiction. What is contended before us is that the orders were incorrect on merits. That is a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General. The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under article 32 of the Constitution on the basis that her fundamental right has been infringed. In Sahibzada Saiyed Muhammed vs The State of Madhya Bharat (1) the facts were these. The petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of habeas corpus for directions to produce petitioners 2 and 3, his minor children, before the court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, be applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors; the District Judge rejected the application and appointed another person as guardian; the petitioner then appealed to the High Court against the order of the District Judge and that appeal was dismissed. He applied for special leave to appeal to this Court and that application was also rejected. Thereafter be moved an application under article 32 of the Constitution and it wag held that where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and, therefore, its infringement cannot arise, (1) ; 511 this Court cannot entertain a petition under article 32 for protection of the alleged right. We are of the opinion that the principle of this decision also applies to the present case. The circumstance that in Sahibzada Saiyed Muhammed vs the State of Madhya Bharat (1) an application for special leave was made and rejected makes no difference to the application of the principle. So far as the principle is concerned, the position is the same when an application is made and rejected and when no application is made. The re sult in both cases is that the decision becomes final and binding on the parties thereto. We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction. We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has no ,such right. We would, accordingly, dismiss the petition with costs. Petition dismissed.

The Custodian of Evacuee Property, Patiala, took possession of two houses under the provisions of the Patiala Evacuees (Administration of Property) Ordinance of Samvat 2004 (No. IX of 2004) but on the appellant claiming the houses as belonging to him they were released in his favour by the Custodian by an order dated June 6, 1949. Thereafter several Ordinances relating to evacuee property were passed one after another, the later one repealing the previous one and creating a chain of fictions by which certain provisions of the repealed Ordinance were deemed to continue under the repealing Ordinance. The last Ordinance was replaced by the Administration of Evacuee Property Act No. XXXI of 1950) under the provisions of which the Deputy Custodian General set aside the order of Custodian dated Julie 6, 1949, after giving notice to the present appellants. On appeal by special leave the appellants contended that (1) the deeming provisions of the repealing Ordinances and Acts culminating in section 58(3) of the Act apply only to things or action taken by the Custodian in exercise of his administrative powers and not to orders made by him in exercise of his judicial powers, (2) the order dated June 6, 1949 passed by the Custodian under Ordinance IX of 2004 could not be deemed to be an order passed under the, Act as the chain of fictions was broken when Ordinance No. XIII of 2006, repealing the previous Ordinance IX of 2004 was issued, (3) section 58 (3) of the Act expressly saves the previous operation of Ordinance XXVII of 1949 or any corresponding law and, therefore, the orders that had become final under the said Ordinance could not be revised under section 27 of the Act. Held, that the operation of section 58(3) of the (No. XXXI of 195o) was not confined only to administrative acts done by the Custodian under the earlier Ordinances but the provisions of that section applied also to judicial orders passed by him. 215 Indira Sohan Lal vs Custodian of Evacuee Property, Delhi, , followed. The order dated June 6, 1949, releasing the property in dis pute was passed under Ordinance No. IX of 2004 by the Custodian and not the Claims Officer as provided in the successive Ordinance No. XIII of 2006 and therefore that order could not be deemed to have been passed under the successive Ordinances and the Act. The alleged chain of fiction was broken during the period when Ordinance No. XIII of 2006 was in force. Even if the Custodian was the Claims Officer, his order must be deemed to be an order made under the later Ordinance only for the limited purpose of appeal or revisions. Under section 25 of the last Ordinance namely Ordinance No. XXVII of 1949 the order of the Custodian was appealable but no appeal having been filed it had become final under section 28. The order of the Custodian which had become final under the said Ordinance, could not be affected retrospectively under section 58(3) of the Act so as to deprive the order of the Custodian of the finality it had acquired under the said Ordinance. Section 58(3) does not contain any positive indication giving it such retroactivity but in express terms it saves the previous operation of that Ordinance. Colonial Sugar Refining Co. Lid. vs Irving, , followed. Indira Sohan. Lal vs Custodian of Evacuee property, Delhi; , , considered. Delhi Cloth and General. Mills vs Income tax Commissioner, Delhi, (1027) I.L.R. , referred to. janki Prasad vs The Custodian Evacuee Properly, Jullundur, Punj. 823, disapproved. The words "any time" or "any Custodian" in section 27 of the Act must necessarily be confined only to orders of any one of the Custodians defined in the Act and to orders of Custodians deemed to have been made under the Act but had not become final before the Act came into force.

vil Appeals Nos. 89 93 of 1964. Appeals by special leave from the judgment and orders dated August 30, 1961 and June 13, 1961 in Special Civil Application Nos. 440, 441,509, 510 and 7 of 1961. K.S. Chawla and R.S. Sachthey, for the appellant (in C. As. 89/91 of 1964). 79 C.K. Daphtary, Attorney General, K.S. Chawla and R.N. Sachthey, for the appellant (in C.A. NO. 93/64). N.N. Keshwani, for the respondents in all the appeals. The Judgment of the Court was delivered by Sikri, J. These five appeals by special leave raise a common question of interpretation of r. 19 of the Displaced Persons (Compensation & Rehabilitation) Rules, 1955 (hereinafter referred to as the Rules). It is common ground that nothing turns on any dissimilarity in the facts of each appeal. It will accordingly suffice if facts in Civil Appeal No. 93 of 1964 are set out. The respondent, Lachman Hotchand Kriplani, is a displaced person from West Pakistan. He has three brothers. They owned 731 acres of agricultural land in District Nawabshah, Taluka Nawab Shah, Sind now in Pakistan. The respondent submitted a claim under the Displaced Persons (Claims) Act, 1950 (XLIV of 1950) hereinafter referred to as the Claims Act. The word 'claim ' was defined to mean "assertion of a right to the ownership of, or to any interest in (i) any immovable property in West Pakistan which is situated within an urban area, or (,ii) such class of property in any part of West Pakistan, other than an urban area as may be notified by the Central Government in this behalf in the official gazette". It is common ground that agricultural land in Sind was so notified. The respondent 's claim was that he owned 1/4 share of 731 acres and 14 ghuntas standing in the name, of Fatehehand. The Claim Officer, by order dated October 7, 1952, accepted the claim and assessed his claim as 94 3 standard acres. On July 2, 1955, the respondent applied for compensation under the (XLIV Of 1954) hereinafter referred to as the Compensation Act. In the application he stated that he was not a member of a Joint Hindu Family in Pakistan, but his claim was as a co sharer alongwith three others, who had filed separate claims. The Assistant Settlement Commissioner was, however, not satisfied with this assertion and after holding an enquiry, by order dated March 3, 1960, he held that the four alleged co sharers were members of a Joint Hindu Family, and the whole agricultural land claim was to be treated as joint property. On August 29, 1960, a statement of account was issued to the respondent. This statement showed that his claim was assessed as Rs. 10,701/ gross compensation. This figure was arrived at, as stated in the affidavit of the Assistant Settlement Commissioner, thus: "The claim was assessed for 376 standard acres and 12 units out of which the petitioner had 1/4th share. The compensation on 376 Standard Acres and 12 Units works out to 108 Standard Acres 0 3/10 Units as per 80 scale indicated in Rule 51. This converted in terms of money as per Rule 56 comes to Rs. 42,806/ The petitioner 's 1/4th share would be Rs. 10,701/ ". The respondent then on October 28, 1960, served a notice on the Regional Settlement Commissioner calling upon him to rectify the statement of account, failing which he will be constrained to move the High Court under articles 226 and 227 of the Constitution. In this notice he claimed that r. 20 applied to his case; in the alternative he asserted that at least r. 19 should be applied to him. In reply, the Assistant Settlement Commissioner informed him that the calculation had been done correctly. Thereupon, he filed a petition under articles 226 and 227, in the Bombay High Court. The High Court allowed the petition and set aside the statement of account furnished to the petitioner on August 29, 1960, and directed that the respondent shall give the benefit of r. 19 and determine the amount of compensation payable to him in accordance with the provisions of rr. 19, 51 and 56 and other rules of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. The appellant having obtained special leave, the appeals are now before us. We may mention at the outset that in the High Court the respondent 's counsel did not challenge the finding of the Assistant Settlement Commissioner that the respondent and his brothers were members of a joint family. The High Court came to the conclusion that r. 19 applied to agricultural land. It found nothing in the scheme of the Rules, or in the language of r. 19, to support the claim of the Department that r. 19 applied only to nonagricultural land. The learned Attorney General, on behalf of the appellant, challenges the conclusion of the High Court. He has taken us through various sections of the Compensation Act of 1954 and various rules to substantiate his contention. Let us then look at the Compensation Act and the Rules. The Compensation Act was enacted to provide for payment of compensation and rehabilitation grant to displaced persons and for matters connected therewith. 'Verified claim" is defined to mean, inter alia, a claim registered under the Displaced Persons (Claims) Act (XLIV of 1950). It is not disputed that the claim of the respondent verified by order dated October 7, 1952, is a verified claim. Section 4 provides for an application for the payment of compensation in the prescribed form to be made by a displaced person having a verified claim within a certain period. Section 5 provides that on receipt of an application under section 4, the Settlement Officer shall determine the amount of public dues, if any, recoverable from the applicant and shall forward the application and the record to the Settlement Commissioner. It will be noticed that a verified claim registered under the Claim Act, 1950, includes claims to urban as well as certain agricultural land. Therefore, both sections 4 and 81 5 apply to such agricultural land as has been made the subjectmatter of claim and verification under the Claims Act of 1950. Section 6 was referred to by the learned Attorney General but we have not been able to appreciate how it advances his case. Section 6 gives relief to certain banking companies in this way. If a banking company held a mortgage of an immovable property belonging to a displaced person in west Pakistan, and that mortgage was subsisting at the date when the claim of the banking company was registered under the Claim Act, 1950, and the displaced person is entitled to receive compensation in respect of any such property, the banking company was entitled to various reliefs, the appropriate relief depending on whether the compensation to the displaced person is payable (1) in cash or (2) in the form of transfer of any property, or (3) in any other form. In this section immovable property would include agricultural land and it cannot be denied that the respondent is entitled to compensation at least in one of the three forms mentioned in sub. section (2). Section 7(1).directs the Settlement Commissioner on receipt of the application trader section 5 to ascertain the amount of compensation having due regard to the nature of the verified claim and other circumstances of the case. Section 7(2) provides for the deduction of certain dues and the Settlement Commissioner then makes an order under section 7(3) ascertaining the net amount of compensation. Section 8 provides the form and manner of payment of compensation of the net compensation determined under section 7(3) as being payable to a displaced person. Subject to any rules that may be made, the net compensation is payable in cash, in government bonds, or by sale to the displaced person of any property from the compensation pool and setting off the purchase money against the compensation payable to him, etc. Section 8(2) enables rules to be made by the Central Government on various matters, inter alia, the scales according to which, the form and the manner in which and the installments by which compensation may be paid to different classes of displaced persons. Section 40 enables rules to be made to carry out by the purposes of the Compensation Act. It is not necessary to refer to other sections of the Compensation Act. Before we deal with the 1955 Rules, it is apparent that sections 4, 5, 6, 7 and 8 do not in any manner distinguish between urban land and agricultural land as long as the agricultural land is the subject matter of a verified claim. If a person holding a verified claim in respect of agricultural land owes.public dues and "public dues" is defined very widely in section 2(d) to include all kind of loans not only from the Central Government but from a State Government also this has to be deducted under section 7(3). It is suggested that the expression "net amount of compensation" in section 7(3) means only cash compensation but we are unable to limit the expression thus in view of the scheme of sections 4 to 8. 82 The Central Government in exercise of the power conferred by section 40 of the Compensation Act made the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. Chapter I contains various definitions; Chapter II deals with procedure for submission of compensation application and determination of public dues. Rule 3 enables a displaced person having a verified claim to make an application for compensation. Rule 4 deals with the form of application and Appendix I is the form prescribed, and Appendix II is the questionnaire which has to be answered. One question is important for our purpose. Under the heading "11. Particulars of claims under Displaced Persons Claims Act, 1950" is mentioned: "(a) agricultural land, index no; Village/Tehsil/District; value assessed in standard acres; cosharers in each property with respective shares; if any property is mortgaged state mortgage money and name of the mortgagees". The rest of the rules, upto r. 9, in this Chapter deal with the scrutiny of the application and the determination of public dues. It is only necessary to notice r. 6(2) which requires a Settlement Officer to send a duplicate copy of the application to the Office of the Chief Settlement Commissioner for verification of the assessed value of the claim in respect of which the application has been made. Under r. 10 the Settlement Officer is required to pass an order and send a copy of the order and the original application along with the records of the case to the Regional Settlement Commissioner. It will be seen that Chapter II does not distinguish between verified claims relating to urban property and rural property. Then we come to Chapter III which contains r. 11. Under this rule the settlement Commissioner deals with the duplicate copy sent to him under r. 6(2). He verities the assessed value of the claim, as stated in the application, with the final order in respect thereof, in the claims record and returns the duplicate copy to the Regional Settlement Commissioner with such remarks as may be relevant for the determination of the amount of compensation. Chapter IV deals with determination of compensation. It will be remembered that section 5 of the Compensation Act requires the Settlement Officer to determine the amount of public dues and forward the application and the record of the case to the Settlement Commissioner, and r. 11, which we have just noticed, requires the Settlement Commissioner (Headquarters) to send the duplicate copy to the Regional Settlement Commissioner. Rule 12 directs the Regional Settlement Commissioner to consolidate all these papers. Rule 12 obviously applies to application in respect of verified claims to agricultural land. As we have already said, section 5 and r. 11 applied to such verified claims. Rule 13 deals with determination of certain dues to banking companies under section 6 and any unsecured debt payable by an applicant in respect of which a communication has been received from any Tribunal under section 52 of the Displaced Persons (Debt Adjustment) Act, 1951 (LXX of 1951). Rule 14 directs that the public dues and the amounts referred to in Rule 13 83 shall be deducted from the amount of compensation in a certain order of priority. Rule 15 reads as follows: "Determination of net compensation; After deducting the amount referred to in rule 14, the Regional Settlement Commissioner or an Assistant Settlement Commissioner or a Settlement Officer, or an Assistant Settlement Officer, having jurisdiction and duly authorised by the Regional Settlement Commissioner, shall pass an order determining the net amount of compensation payable to the applicant in respect of his verified claim and shall prepare a summary in the form specified in Appendix VII (Abstract of particulars). It is significant that Appendix Vii has a column for agricultural land and a column for remarks regarding application of r. 19. Pausing here, it is difficult to hold that rr. 12, 13 and 14 do not apply to applications for compensation in respect of agricultural lands which are the subject matter of a verified claim. There fore, we must reject the contention that Chapter IV, in which r. 19 occurs, does not deal with agricultural lands at all. It may be conceded that r. 16 does not apply to agricultural lands. The scale compensation in respect of agricultural lands which are the subject matter of a verified claim is expressly dealt with else where. Rule 51 which provides that the scale of allotment of land as compensation in respect of a verified claim for agricultural land shall be the same as in quasi permanent land allotment scheme in the State of Punjab and Patiala, and the East Punjab States Union, as set out in Appendix XIV. The explanation further provides that if any public dues are recoverable the allocable area shall be reduced correspondingly. Rule 49 read with r. 56 enables the compensation due on the verified claim for agricultural land to be converted into cash if a person wishes to have his claim satisfied against property other than agricultural land. Rule 18 expressly excludes agricultural land from its purview. What emerges from a consideration of these rules in Chapter IV is that we must consider each rule and see whether it has application to a claim for compensation in respect of agricultural land. Rule 19 reads thus: "Special Provision for payment of compensation to Joint families Where a claim relates to properties left by the members of an undivided Hindu family in West Pakistan thereinafter referred to as the joint family) compensation shall be computed in the manner hereinafter provided in this rule. (2) where on the 26th Sept. 1955 (hereinafter referred to as the relevant date) the joint family consisted of: (a) two or three members entitled to claim partition, 84 the compensation payable to such family shall be computed by dividing the verified claim into two equal shares and calculating the compensation separately on each such share, (b) four or more members entitled to claim partition, the compensation payable to such family shall be computed by dividing the verified claim into three equal shares and calculating the compensation separately on each such share. (3) For the purpose of calculating the number of the member of a joint family under sub rule (2), a person who on the relevant date: (a) was less than 18 years of age, (b) was a lenial descendant in the main line of another living member of joint Hindu family entitled to claim partition shall be excluded: Provided that where a member of a joint family has died during the period commencing on the 14th August 1947 and ending on the relevant date leaving behind on the relevant date all or any of the following heirs namely: (a) a widow or widows, (b) a son or sons (whatever the age of such son or sons) but no lenial ascendant in the main line, then all such heirs shall, notwithstanding anything contained in this rule, be reckoned as one member of the joint Hindu family. Explanation For the purpose of this rule, the question whether a family is joint or separate shall be determined with reference to the status of the family on the 14th day of August, 1947 and every member of a joint family shall be deemed to be joint notwithstanding the fact that he had separated from the family after the date". The heading "Special Provision for payment of compensation to joint families" is general. So is sub rule (1). The word properties ' is general and would include agricultural land. That this is the meaning is also borne out if we consider the word "claim". The word "claim" must have reference to the claim in the application to be made under section 4 read with rr. 3 and 4, and as we have already noticed, the application would include a claim in respect of agricultural land if it is the subject matter of a verified claim. The learned Attorney General has not been able to point to any principle of construction which would enable us to limit the scope of the general words in r. 19(1). His main argument that no rule in Chapter IV applies to claims in respect of agricultural land we have already rejected. 85 The learned Attorney General then urges that the scheme of the Rules is to provide in separate chapters for compensation in respect of various classes of properties, and he says that Chapter VIII provides for compensation in respect of verified claim for agricultural land situated in rural area and the rules contained in the chapter are the only rules that govern the grant of compensation. But none of the rules in this chapter deals with what is t9 happen if the agricultural land was held by a joint family in West Pakistan or if the agricultural land was held by co owners in West Pakistan. Even if a Joint Hindu Family is treated as a unit for some purposes in some laws, co owners are very rarely treated as a unit and it would require express language to treat co owners as a unit an.d award compensation to them as a unit. However, r. 20 recognises the general rule and provides that where a claim relates to property left in West Pakistan, which is owned by more than one claimant as co owners, the unit for the assessment of compensation shall be the share of each co owner and the compensation shall be payable in respect of each such share as if a claim in respect thereof has been filed and verified separately. The learned Attorney General, when asked, said that even r. 20 ' would not apply to a claim in respect of agricultural land, but we are unable to accede to this contention. It would be the height of ' inequity to hold this. In other words, rr. 19 and 20 enable the authorities to determine the unit for assessment of compensation. This subject is not dealt with in Chapter VIII, which deals with how the unit, be it an individual, a member of Joint Hindu Family or a co owner, is to be compensated. There is nothing in Chapter VIII which modifies or overrides rr. 19 and 20. Accordingly, in agreement with the High Court, we hold that r. 19 will apply to the claim of the respondent in respect of agricultural land left by him as a member of the Joint Hindu Family. In the result, the appeal fails and is dismissed with costs. As stated in the beginning, it is common ground that if this appeal fails the other appeals must also fail. They are accordingly dismissed with costs. There will be one hearing fee in them. Appeals dismissed.

The respondent who had a "verified claim" applied for compensation under the . He alleged that he was a co sharer along with his brothers in agricultural property in West Pakistan and claimed his share of the compensation. The Assistant Settlement Officer held that the alleged co sharers were members of a joint Hindu family and that t.he agricultural property was joint property. He then calculated the compensation on the joint property as per rr. 51 and 56 of the Displaced Persons (Compensation and Rehabilitation) Rules 1955. The respondent thereupon filed a petition in the High Court under articles 226 and 227 of the Constitution contending that on the finding that the respondent and his brothers constituted a joint family, the unit for assessment of compensation should first be determined according to r. 19, which makes special provision for payment of compensation to joint families, before compensation was calculated. The High Court allowed the petition. In the appeal to this Court it was contended that r. 19 was inapplicable as that rule does not apply to agricultural land. HELD: The High Court was right in holding that the rule applied to the claim of the respondent in respect of the agricultural land. Chapter IV of the Rules in which r.19 occurs contains some rules which apply to applications for compensation in respect of agricultural lands also. Therefore it cannot be said that the Chapter does not deal with agricultural lands at all. Each rule must be considered to see whether it has application to a claim for compensation in respect of agricultural land. So considered, there is no principle of construction by which the scope of the general words in r. 19 could be limited, so as not to apply to agricultural land. Chapter VIII of the Rules provides for compensation in respect of verified claims for agricultural lands in rural areas and only deals with how a unit that has been determined is to be compensated. There is nothing in that Chapter which modifies or overrides r.19 which enables the authorities to determine the unit for assessment of compensation in the case of joint families. [83 D E; 85 A F]

ivil Appeal No. 1846 of 1974. From the Judgment and Order dated 25.9.1972 of the Bombay High Court in Appeal No. 512 of 1965. V.N. Ganpule and Mrs. Urmila Sirur for the Appellant. V.A. Bobde, Uday U. Lalit and A.G. Ratnaparkhi for the Respondent. The Judgment of the Court was delivered by SHARMA, J. This appeal by the plaintiff appellant is directed against the decision of the Bombay High Court dismissing her suit for possession of the properties de tailed in the plaint. The disputed properties belonged to a joint Hindu family governed by Mitakshara law of which one Bhiku and his son Balu were coparceners. Bhiku died on June 6, 1942 leav ing behind his widow Parvati, the defendant No. 2 in the present suit and Balu who dies soon after his father 's demise on July 24, 1942. In November 1942 Balu 's widow Lilabai gave birth to a posthumous daughter who is the present appellant. Sometime later Lilabai remarried and thereupon Parvati 466 adopted Vithal, the first defendant in the present suit, in the year 1949. After attaining majority, appellant Ashabai filed the present suit for a decree for possession of the properties with mesne profits and a decree for money for Rs.3,000 as expenses of her marriage. She challenged the power of her grand mother to adopt the first defendant on the ground that her right to adopt was lost on the death of Balu leaving behind his widow Lilabai. The trial court accepted the defence case, upheld the adoption of the defendant No. 1 as valid, and dismissed the suit. The plaintiff, Ashabai, challenged the decision by an appeal which was heard by the Extra Assistant Judge, Poona, who allowed the same and passed a decree for possession of the suit properties along with mesne profits. Now, it was the turn of the defendants to question the decree of the first appellate court before the High Court under section 100 of the Code of Civil Procedure. After considering a number of Privy Council and Supreme Court decisions, the High Court ruled that a Hindu widow 's power to adopt is revived the moment there is nobody to continue the line, and since Lilabai incapacitated herself in doing so by her remarriage, the right of her mother in law to adopt a son to her husband revived. The adoption of the first defendant was, thus, found legal and valid. Accordingly the decree in favour of the plaintiff was set aside and her suit dismissed. The appellant then moved this Court under Article 136 of the Constitution and special leave has been granted. The case comes from Maharashtra where a Hindu widow may adopt even without any authority. The contention of the plaintiff is that on the death of Balu his mother Parvati lost this power which vested in Balu 's widow Lilabai and on Lilabai 's remarriage Parvati 's power did not revive. The adoption of defendant No. 1 was, therefore, illegal. Reli ance was placed on several decisions of the Bombay High Court including that in Ram Chandra vs Murlidhar, In similar circumstances the Division Bench held that the mother 's power to adopt a son was permanently extinguished on the death of her natural son leaving a widow. The High Court in the present case refused to follow the said decision on the ground that the same must be held to have been impliedly over ruled by the judgment of this Court in Gurunath vs Kamalabai, ; our view the High Court has not correctly appreciated the deci sion in Gurunath 's case. The relevant facts in Gurunath vs Kamalabai, may be briefly put thus. The disputed property belonged to Krishta rao who died leaving behind two widows Radhabai and Ganga bai and a son 467 Dattatraya. Dattatraya died in 1913 leaving behind his widow Sundarabai and a son Jagannath. Sundarabai died soon after the death of her husband and a year later Jagannath also died. Gangabai, the junior widow of Krishtarao, adopted Gurunath, the appellant before this Court, who filed a suit claiming certain rights as the adopted son of Krishtarao. One of the issues arising in the case related to the validi ty of Gurunath 's adoption. A Bench of seven learned Judges of this Court examined several decisions of the Privy Coun cil including the judgment in Arnarendra Mansingh vs Sanatan Singh, [1933] L.R. 60 I.A. 242, and said that the rule, "That the interposition of a grand son, or the son 's widow, competent to continue the line by adoption brings the mother 's power of adoption to an end;" was being followed for a very long time and has become a part of Hindu law. They also approved the observation of Chandavarkar, J., who delivered the judgment of the Full Bench of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao, Bom. 526, to the following effect: "Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived. " They also quoted with approval another part of the judgment of Chandavarkar, J., stating that when a son dies before attaining full legal competence and does not leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands. over that torch to another, the mother can no longer take it. In view of these observations in the judgment in Gurunath 's case there does not appear to be any scope for holding that on the remarriage of the son 's widow the power of the son 's mother to adopt revives. The matter does not stop here. Reliance was placed by the appellant on the decision of the Nagpur High Court in Bapuji vs Gangaram, [1941] I.L.R. Nagpur 178, where the facts were identical to those in the present appeal. The Nagpur High Court had held that the power of the mother revived on the remarriage of the son 's widow. This Court discussed the Nagpur judgment at some length at pages 1148 and 1149 and disapproved it. This part of the judgment does not leave any room for doubt that this Court in Gurunath 's case has affirmed the decisions of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao, Bom. 526 468 and Ram Chandra vs Murlidhar, , as laying down the correct law and rejected the rule of law similar to the plea of the present respondent, recognised by Nagpur High Court in identical facts and circumstances. We accordingly hold that on the death of Balu the responsibili ty for the continuance of the family line fell on his widow Lilabai by the power of adoption vesting in her, and the power of Parvati to adopt was extinguished permanently and did not revive even on Lilabai 's remarriage. Consequently the adoption of first defendant was invalid in the eye of law and he did not get any interest in the suit properties. Now remains the next question as to the relief which the plaintiff is entitled to get in this suit. As has been observed earlier, the properties belonged to the joint family of which Bhiku was a coparcener. On his death in 1942 his wife Parvati got under section 3(2) of the Hindu Women 's Rights to Property Act, 1937, the same interest as Bhiku had in the joint family properties. If a partition had taken place Bhiku would have got half share in the properties, which on his death devolved on Parvati. Parvati is still alive and is defending the claim of her grant daughter. She cannot, therefore, be deprived of her half share in the properties. The interest which initially devolved on Para vati, however, was the limited in nature known as Hindu Woman 's estate. On the passing of the , she became full owner thereof. Likewise the remaining half share of Balu in the properties, devolved on the appel lant on her mother 's remarriage and she got a Hindu Woman 's estate therein which ripened in full ownership under section 14(1) of the . She is thus entitled to a decree for half share in the suit properties, as prayed for by way of an alternative relief in the plaint. She has also asked for a decree for partition in case of a partial decree which she is entitled to get. The first appellate court had also granted a decree for mesne profits, pendente lite and future, which should be restored but only in respect of her half share. Accordingly, an inquiry shall be made under Order XX, Rule 12, CPC. Her claim for a money decree for Rs.3,000 was not allowed even by the first appellate court and stands finally rejected. In the result, the decision of the High Court is set aside and the plaintiff 's suit for half share in the suit properties with mesne profits as also for portion is de creed. The appeal is accordingly allowed in part, but the parties are directed to bear their own costs throughout. R.N.J. Appeal allowed.

The appellant, a contractor had entered into a contract with the Respondent on 22nd April 1978 for the construction of an embankment across Musaliyar Podom between chainage 2573.5 M to 2827 M of E.B. Main conal of Kallada Irrigation Project. Under the contract agreement, the work was to the completed by March 30, 1980 i.e. two years From the date of selection notice which was dated March 30, 1978. The appel lant having failed to complete the work as per the terms of the contract, the Respondent by a notice dated 26.4.80 cancelled the contract at his risk and cost. Consequent there to the appellant filed a claim before the named Arbi trator (Case No. 132 of 1980), claiming enhancement of rates in respect of the earth work involved in the contract. He also claimed interest on delayed payment and costs. The respondent resisted the claim and urged that the appellant was not entitled to any enhancement, as the appellant should have visualised and assessed the position before entering into work contract which was to be completed within 2 years. According to respondent the appellant had not even completed 35% of the work. Respondent, No. 2, therefore, filed a counter claim for Rs.28,84,000. The Arbitrator made the award on 22.1.1981 in respect of claim No. 1 thereby directing the Respondents to pay 35 per cent increase in the agreed rate for the item of earth work. However claim regarding interest on delayed payment was disallowed. As regards the counterclaim filed by the Re spondent, the Arbitrator ordered that those issues will be considered separately and thus no award in respect thereof was made. The appellant thereupon filed O.P. (Arbitrator) 81 of 1981 before the Sub Judge Trivandrum for making the award a rule of the Court. 399 The Respondents having raised objection to the making of the award a Rule of the Court, the Sub Judge remitted the reference to the arbitrator by his order dated 18.8.81 for fresh consideration, as the arbitrator had failed to consid er the counter claim made by the respondent. The appellant applied for review of the said order passed by Sub Judge. Contemporaneously, the appellant filed another claim peti tion before the arbitrator (case No. 276 of 1980) in respect of the wrongful termination of the contract and made claim in respect of 13 items. On 29th October 1981, the arbitrator made an award whereby he ordered that the re arrangement of the work should not be at the risk and cost of the appel lants. He also ordered 30% increase in rates for all items of work carried out by the appellant, except however those items, which stood covered by his earlier award. Some of the other claims were also allowed. The appellant filed O.P. (Arbitrator) 296 of 1981 for making the second award a Rule of the Court to which the Respondents raised objections. The Sub Judge by his order dated March 18, 1982 made the award a rule of the Court dismissing the plea of res judicata raised by the Respondents. The Respondents being dissatisfied with the order passed by Sub Judge preferred two appeals before the Kerala High Court. The High Court allowed both the appeals holding that the Sub Judge could not review his order of the facts of the present case. The High Court also held that principle of constructive res judicata would apply to the arbitration case. Accordingly the High Court set aside the orders of the Sub Judge as also the award and directed that the arbitrator shah dispose of the Arbitration case No. 132 of 1980 afresh in the light of the Judgment of Sub Judge in O.P. (Arbitrator) No. 81 of 1981 and in accord ance with law after taking into consideration the claim of the appellant and the counter claim of the Respondents. Hence these appeals by the appellant by Special Leave. Dismissing the appeals, this Court, HELD: It is the duty of the Arbitrator while considering the claims of the appellants to consider also the counter claims made on behalf of the Respondents and to make the award after considering both the claims and counter claims. This has not been done and the Arbitrator did not at all consider the counter claims of the respondents in making the award. As such the first award dated 22.1.81 made by the Arbitrator in Arbitration Case No. 132 of 1980 is wholly illegal and unwarranted and the High Court was right in holding that the Arbitrator misconducted himself and in the proceedings by making such an award, and in setting, aside the same and directing the Arbitrator to dispose of the reference in accordance with law con 400 sidering the claim of the contractor and the counter claim of the respondent. [406F G] The order allowing the application for review by the Trial Court is also had inasmuch as there was no mistake or error apparent on the face of the order dated August 18, 1981 made O.P. (Arbitrator) No. 81 of 1981 nor any suffi cient reason has been made out for review of the said order. [406H; 407A] In the instant case, the contract was terminated by the Respondents on April 26, 1980 and as such all the issues arose out of the termination of the contract and they could have been raised in the first claim petition fried before the arbitrator by the appellant. This having not been done, the second claim petition before the arbitrator raising the remaining disputes is clearly barred. [407H; 408A] Section 41 of the Arbitration Act provides that the provisions of the Code of Civil Procedure will apply to the Arbitration proceedings. The provisions of res judicate are based on the principle that there shall be no multiplicity of proceedings and there shall be finality of proceedings. [408B] Muhammad Hafiz & Anr. vs Mirza Muhammad Zakaria & Ors., AIR 1922 (PC) 23; Darvao & Ors. vs The State of U. P. & Ors., ; at 582 83; Satish Kumar & Ors. V. Surinder Kumar & Ors., , referred to.

Criminal Appeal No. 168 of 1979. From the Judgment and Order dated 29.9.1978 of the Madhya Pradesh High Court in Criminal Appeal No. 1094 of 1976. U.R. Lalit, S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Appellants. Uma Nath Singh for the Respondent. The Judgment of the Court was delivered by FATHIMA BEEVI, J. This appeal by special leave is di rected against the judgment of the High Court of Madhya Pradesh confirming the conviction of the appellants for the offences under sections 147 and 302/149, I.P.C., and sen tence to undergo imprisonment for life. The appellants and four persons acquitted by the trial court were tried for the murder of one Hanuwa. The prosecution alleged that motivated by group rivalry the accused persons attacked Hanuwa with tabbals and lathis on July 11, 1975 at about 8. 30 A.M. The occurrence happened on the track across the field leading to village Mungeli. Hanuwa accompanied by his mother Baiyanbai and sister Birjhbai was on his way to Mungeli to supply milk. When he reached Ghotora near Nayagaon village. the accused persons advanced towards him and mounted attack. As a result of the injuries sustained, Hanuwa died on the 104 spot. When Baiyanbai tried to intervene, she too was as saulted, Baiyanbai lodged the first information report at 12.00 noon the same day against these appellants and others who were finally chargesheeted. Baiyanbai (PW 1) and Birjhbai (PW 5) were the two eye witnesses who unfolded the prosecution case. Mangal (PW 4) and Dilashbai (PW 6) deposed to having seen appellants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance. The medical evidence disclosed that Hanuwa sustained in all seven in juries: two incised wound on the scalp resulting in multiple fracture of the parietal bone and tear of right lobe of the brain: two confusions and three bruises on the forearm, right upper arm scapular region and buttock. Injuries sus tained by PW 1 was incised wound in between right thumb and index finger which could be caused with any sharp object. The plea of the accused was that they were falsely implicat ed due to enmity. The learned Sessions Judge accepted the prosecution evidence and convicted these appellants finding that they were members of an unlawful assembly and death of Hanuwa was caused by the members in prosecution of the common object of the assembly. Arjun, Bhikam, Nanku and Parethan were given the benefit of doubt in view of the discrepancies in mentioning their names and they were ac quitted. The High Court on appeal agreed with the findings of the trial court and confirmed the conviction and sen tence. The conviction of the appellants is assailed before us mainly on the ground that the two eye witnesses in the case are close relations of the deceased deeply interested in involving the appellants on account of the enmity and their evidence was required to be scrutinised with great care and caution and the trial court as well as the High Court failed to exercise the necessary caution with the result conviction has been wrongly recorded leading to miscarriage of justice. According to the appellants ' learned counsel, the evidence of the eye witnesses read along with the medical evidence renders the prosecution case highly improbable and doubtful about the presence and participation of the appellants in the assault. It is submitted that the tendency to involve innocent persons by merely mentioning their names is dis cernible and in the absence of independent corroboration the conviction based on the testimony of PW 1 and PW 5 is unwarranted. We have considered these arguments in the light of the material evidence analysed and discussed by the courts below. We find that the conviction of the appellants is principally based on the evidence of 105 PW 1 and PW 5, the mother and sister of the deceased. Though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses. It is an accepted proposition that in the case of group rivalries and enmities. there is a general tendency to rope in as many persons as possible as having participated in the assault. "The courts have, there fore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them", vide Baldev Singh vs State of Bihar, AIR 1972 SC 464. This Court has in several decisions pointed out that "where there is enmity between the two factions then there is a tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent members of the opposite faction in a criminal case and that therefore the Court has in all such cases to sift the evidence with care and convict only those persons against whom the prose cution witnesses can be safely relied upon without raising any element of doubt", vide Raghubir Singh vs State of U.P., AIR 1971 SC 2 156. On a perusal of the judgment of the High Court, we find that the necessary caution had not been observed in the approach to the evidence. The occurrence happened on a narrow track. The deceased Hanuwa was going ahead of his mother and his sister was still behind. The witnesses noticed the assailants only when they approached the deceased. The evidence is not clear that the assailants were seen by Baiyanbai or Birjhbai hiding behind the bushes and emerging from the hiding place. Th witnesses stated that the accused persons surrounded the victim and each one of them assaulted him with the weapon they had. PW 1 stated that some of the assailants had given more than one blow and Parsadi assaulted her when she tried to intervene. If a group of more than 15 persons encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the victim. We have re ferred to the medical evidence which shows that besides the two incised wounds on the scalp which proved fatal Hanuwa had only five minor injuries on his person. PWs 1 and 5 did not state who caused the head injuries. They have not at tempted to attribute any one of the injuries to any particu lar assailant. The evidence is in general terms. Even in the first information report, PW 1 only stated that the persons named therein attacked Hanuwa with tabbals and lathis and caused his death. In a melee where several people are giving blows at one and the same time it will be impossible to particularize the blows. If any wit 106 ness attempts to do it, his veracity is doubtful. But it cannot be forgotten that it is simpler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close cross examination. Therefore, the nature of the injuries sustained by the victim assumes importance. The nature of the injury sustained in spite of the assertion of the concerted attack with lathis and tab bals by several assailants numbering over 15 renders the evidence doubtful about the participation of such a large number of persons. When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased, Hanuwa, the necessary inference is that not more than seven persons might have participated in deliver ing the blows. Therefore, the presence of more than seven persons is doubtful. This aspect of the case has not been given due weight by the High Court while appreciating the evidence in the case. "Where an occurrence takes place involving rival fac tions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is interested is to shut one 's eyes to the realities of the rural life in our coun try. It has to be borne in mind that in such situation easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and has to be eschewed and, therefore, the evidence has to be exam ined with utmost care and caution and the Court has to adopt a workable test for being assured about the role attributed to every accused" vide Muthu Naicker vs State of Tamil Nadu, We have therefore to see whether the testimony of PW I and PW 5 as against all or any of the appellants before us finds corroboration with the material on record. The trial court had acquitted four persons for the reason that their names had been left out in the narration at some stage or the other. PW 1 before giving the first information had deliberations with her son PW 3. The finding of the trial court is that in narrating the incidence to him, PW 1 had omitted to mention the names of Arjun and Bhikam. Before Court, PW 1 did not implicate Nanku. The name of Parethan does not find a place in the F.I.R. It is for these reasons the trial court acquitted them. On such acquittal, it is clear that there had been conscious effort to rope in inno cent persons by merely naming them. Therefore, the apparent conflict between the medical evidence and the eye witness 's account could not have been overlooked. We are of the opin ion that the High Court has not observed the necessary caution in accepting the evidence in 107 general terms to uphold the conviction of all the appel lants. We are thus constrained to consider whether there is any evidence from independent sources to lend assurance to the version of PWs I and 5 regarding the participation of any of these appellants. We have indicated that the presence of at least seven persons at the scene is probable having regard to the nature of the injuries and the manner of the attack. It is also clear from the manner in which the incident happened that the assailants acted in prosecution of the common object to cause the death of the victim. We have no doubt in our mind that more than five persons have actually participated in the crime. We have clear evidence regarding the identity of only four persons. Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident. This evidence lends assurance to the testimony of PW I and PW 5 regarding their participation in the crime. We are of the view that the conviction of these four persons i.e. Baran, Karan, Bhagau and Parsadi has been rightly sustained. However, regarding the rest of the appellants, there is scope of genuine doubt and we are obliged to give the benefit of doubt to them. We accordingly set aside the conviction and sentence of the appellants. namely, Budhwa, Chandu. Kushwa, Bhuwan, Rajaram. Nanda, Chatur, Hari Gannu, Pardeshi and Dukhiram and they are acquitted of the charges. Their bail bonds stand cancelled. The appeal is dismissed so far as Parsadi, Baran, Bhagau and Karan are concerned. These appellants shall surrender to suffer the unexpired portion of the sentence. The appeal is disposed of as above. P.S.S. Appeal dis posed of.

The appellant company, a member of Cooperative Society, respondent No. 2, was having its office premises in a build ing owned by respondent No. 2. It entered into an agreement to sell the said premises to respondent No. 1, a non member subject to the approval of the Cooperative Society. The Cooperative Society declined to grant permission for trans fer of the premises. Respondent No. 1 filed a dispute against the appellant and respondent No. 2 Cooperative Society in the Cooperative Court under section 91 of the Maharashtra Cooperative Societies Act, 1960 praying for a decree of specific performance of the contract and a direc tion to the Cooperative Society to approve the said agree ment. The Cooperative Court dismissed the dispute for want of jurisdiction. On appeal by respondent No. 1, the Maharashtra Cooperative Appellate Court set aside the order of the Cooperative Court. Against the order of the Cooperative Appellate Court, the appellant filed a writ petition in the High Court which was dismissed by holding that the dispute was governed by Section 91 of the Act. In the appeal to this Court against the Judgment of the High Court, it was contended on behalf of the appellant that the dispute between the parties was not governed by Section 91 since it was neither a dispute "touching the business of the society" nor was it a dispute between a person claiming through a member against the society. 467 Allowing the appeal and setting aside the judgment of the High Court, this Court, HELD: 1. Before a dispute can be referred to a Coopera tive Court under the provision of section 91(1) of the said Act it is not only essential that the dispute should be of a kind described in sub section (1) of section 91 but it is also essential that the parties to the said dispute must belong to any of the categories specified in clauses (a) to (e) of subsection (1) of the said section. [473B] 2. In the instant case the main claim of Respondent No. 1 a nonmember, was for a decree for specific performance of the agreement. The prayer for an order that respondent No. 2 Society should be directed to give their approval to the said agreement was merely an ancillary prayer made with a view to complete the relief of specific performance. The main claim to have the agreement specifically performed cannot be said to be a claim made by a person (non member) against the Society. The claim against the society cannot be said to be made through a member, the appellant, because it is only when a decree for performance of the said agreement is passed against the appellant, that it could be contended that the other relief namely, for an order directing re spondent No. 2 to approve the said agreement is claimed against the society through a member. Consequently, the dispute cannot be said to fall within the scope of section 91(1)(b) of the Act. Therefore, the High Court committed an error in coming to the conclusion that both the parties to the dispute belonged to the categories covered under section 91(1)(b) of the Act. [473E H; 474A] Deccan Merchants Cooperative Bank Ltd. vs M/s Dalichand Jugraj Jain and Ors., [1969] 1 S.C.R. 887; M/s Leong and Anr. vs Smt. Jinabhai G. Gulrajami and Ors., A.I.R. 1981 Bom. 244 and Sanwarmal Kejriwal vs Vishwa Cooperative Hous ing Society Ltd. and Ors., [1990] 2 SCC 288, distinguished. O.N. Bhatnagar vs Smt. Rukibai Narsindas & Ors., ; , referred to.

minal Appeal No. 618 of 1985. From the Judgment and Order dated 17.5.1984 of the Allahabad High Court in Criminal Appeal No. 564 of 1977. R.L. Kohli, and C.P. Lal for the Appellant. S.P. Pandey and A.S. Pundir for the Respondent. The Judgment of the Court was delivered by 584 N.P. SINGH, J. The appellant along with Radhey Shayam and Munni Lal, was put on trial for an offence under Section 302 read with Section 34 of the Penal Code, for having committed the murder of Gokaran Prasad on 24.11.1975 at about 5.00 P.M. It is the case of the prosecution that the deceased along with his brother, Parbhu Dayal PW 1, on 24.11.1975, had one to the Court of Tehsildar at Sitapur to attend their case, which had been fixed for hearing. The case was, however, postponed. In the evening they were returning to village. On Sitapur Lucknow Road. at about 5.00 P.M. the three accused persons, all armed with Bankas, emerged from the field of Rani Saheba and ran towards to deceased. PW 1 started shouting for help. The deceased fell down on the brick stack. It is said that the appellant Ram Asrey pressed down the deceased, while Radhey Shyam and Munni Lal gave the blows with Bankas. The occurrence was witnessed by Parbhu Dayal, PW 1, Jagannath, PW 5, and Narain, PW 6. In respect of the motive for the commission of the offence. it is said that two years prior to the occurrence aforesaid, accused Radhey Shyam had erected a wall in front of the house of the deceased, who resisted and did not allow the wall to be constructed. For that Radhey Shyam was prosecuted and because of that he bore a grudge against the deceased. The First Information Report was lodged by PW 1 at about 6.45 P.M., in which he gave the details of the occurrence and named PW 5 and PW 6 as the eyewitnesses of the occurrence. The Investigating Officer visited the spot, made the inquest and sent the body for post mortem, which was held the next day. During post mortem examination, the following injuries were found "1. Incised wound 7 cms. x. 1 cm. x bone deep on the right side of head 6 cms. above the right eye brow. Lacerated wound 4 cms. x. 1.5 cms. x scalp deep in the mid line of head 6 cms. above the root of nose. Lacerated wound 4 cms. x 1.5 cms. x bone deep on the left side of head 3 cms. above left eye brow. Lacerated wound 4.5 cms. x 1 cm. x bone deep on the outer part of left eye brow extending down on the outer side of the outer angle. of left eye and below its level. 585 5. Incised wound 8 cms. x 3 cms. x scalp deep on the back of head ,on the left side of middle line 5 cms. behind the left ear. Incised wound 11 cms. x 3 cms. x vertebrae bone deep 4 cms. below the right ear and 2.5 cms. below left angle of left lower jaw at the level of the body of third cervical vertebrae, underneath of injury oecsophagus. Thyroid cartilage and neck vessels of both the sides out. Incised wound 2.5 cms. x.5 cm. x muscle deep over the front of 1st Pharyanx region of right thumb. Incised wound 9 cms. x 2 cms. x muscle deep over the palmar aspect of left hand starting from the web of left thumb and index finger going inner and upper side towards the wrist. " According to the doctor, who held the post mortem examination, the incised wound might have been caused by weapon like Banka. He, however, pointed out that Banka had a sharp edge on one side and blunt on the other. He stated "Injury No. 2, 3, 4 might be caused by some blunt weapon. Injury No. 4 might be caused by some blunt side of the banka. As in my opinion blunt part of the banka is about 1 cm. in width, injury No. 2 and 3 might be caused by sharp fall on the heap of Bajri. Injury No. 2 and 3 might be caused by blunt part of bank a if its width was 1.4 cms. " In cross examination he states "Injuries No. 2, 3 and 4 are likely to be caused by lathi. There was a fraction of fractured bone below injury No. 2. The injury No. 2 is likely to occur if heavy weight weapon is struck with considerable force. The injury No. 3 might occur by fall on the Bajri. If anyone fall with face side in addition to injury Nos. 2 and 3 other abrasions are likely to occur on the face. " Again, in cross examination about injuries Nos. 2, 3 and 4, he has stated that they are likely to be caused with lathi portion. 586 The Trial Court on consideration of the evidence came to the conclusion that prosecution had failed to prove the case beyond reasonable doubt. On that finding the accused persons were acquitted. The State Government filed an appeal against the judgment of acquittal. During the pendency of the appeal, the main accused Radhey Shyam died. The High Court, however, after referring to the different facts and circumstances of the case, recorded a finding that the charge levelled against the two accused persons, namely, the appellant and Munni Lal, had been proved beyond reasonable doubt. On that finding the High Court convicted the appellant along with Munni Lal, for an offence under Section 302 read with Section 34 of the Penal Code and sentenced each of them to undergo rigorous imprisonment for life. This appeal, under Section 379 of the Criminal Procedure ( 'ode, has been filed on behalf of Ram Asrey, the appellant. We are informed that Munni Lal has not preferred any appeal to this Court. On behalf of the appellant it was urged that the Trial Court had rightly disbelieved the evidence of the three eye witnesses PW 1. PW 5 and PW 6 because of the inherent improbabilities in their deposition and lack of consistency and there was no occasion for the High Court while hearing the appeal against acquittal to reverse the finding recorded about their credibility. It was also pointed out that so far Jaoannath, PW 5, is concerned, he has been disbelieved not only by the Trial Court but even by the High Court saying that he has changed his statement from stage to stage, to make it consistent with the statement of PW 1. The High Court has observed in respect of PW 5 "We may, therefore, exclude his testimony from consideration, not so much because he might not have been present at the spot but because there are elements in his testimony which make it unsafe to place reliatice on it having been once disbelieved by the Trial Court. That is the true angle in which the evidence must be considered by this Court when dealing with an appeal against acquittal. " It was urged that the same approach should have been adopted in respect of Narain PW 6, who claimed to have accompanied PW 5, PW 6, has stated that he had clone that day to the market of khairabad to get Salim Mistry for repairing his Chakki, but Salim Mistry was not available and when he was returning to village he met PW 5 in the market of Khairabad and both of them started for their village. 587 He has further stated that at about 5 P.M. he saw the deceased and PW Ion Sitapur Lucknow Road. Then he claimed to have seen the accused persons coming out from the field of Rani Saheba. According to him, this appellant held down the deceased, while the other two accused persons Radhey Shyam and Munni Lal struck the deceased with Bankas and caused his death. The High Court has observed that if the testimony of PW 6 is examined in the light of surrounding circumstances, then it is consistent with the version of PW 1 and, as such, the evidence of PW 1 receives adequate corroboration. The High Court has rightly pointed out that PW 6 was not connected with the prosecution party in any manner and there was no reason for him to depose falsely, claiming to be an eye witness of the occurrence. As such, his evidence can be taken into consideration to corroborate the evidence of the informant PW 1. On behalf of the appellant, it was said about PW 1 that on his own statement, he lodged the First Information Report, on the basis of a report written by Lallu Ram PW 8 at the spot, which he took to Police Station Khairabad. This aspect of the matter has been dealt with in the judgment under appeal. We are in complete agreement. That merely because PW 1 lodged the First Information Report on basis of a report prepared by PW 8, by itself shall not affect the prosecution version. The matter would have been different. if the accused persons had shown some oblique motive on the part of PW 8, who is said to have prepared the report. The occurrence took place at about 5.00 P.M. and the First lnformation Report was lodged at 6.45 P.M. with in two hours, the police station being at the distance of four miles from the place of occurrence. In the First Information Report the same version of the occurrence was disclosed, which has been stated in Court. Apart from naming himself, PW 1 also named PW 5 and PW 6 as eye witnesses of the occurrence. The Investigating Officer reached the place of occurrence at 9.00 P.M. the same evening. In such a situation there does not appear to be any scope for concoction of a false case to implicate the accused persons leaving out the real culprits. PW 1 being the brother of the deceased, his going to the Court of Tehsildar at Sitapur and returning to village with the deceased is most natural. His evidence cannot be rejected merely on the ground that he happened to be the brother of the victim. It has been repeatedly pointed out by this Court that near relations will be the last persons to leave out the real culprits and to implicate those who have not participated in the crime. Taking all facts and circumstances into consideration. we are of the view that prosecution has been able to prove the case as disclosed in the First Information Report against the accused persons and there is no reason to reject the same. The next question which has to be examined is as to whether so far the 588 appellant is concerned who, according to the prosecution case itself, has not given any Banka blow to the victim, but is said to have pressed down the deceased, before the other two accused persons Radhey Shyam and Munni Lal had given the blows, should have been held guilty for an offence under Section 302 read with Section 34 of the Penal Code. It was pointed out that the appellant was a school student and there was no reason on his part to share the common intention of committing the murder of the victim. In this connection, reference was made to the injuries found on the person of the victim during the post mortem examination. It was pointed out that the injuries were not consistent with the prosecution case that the other two accused persons caused those injuries with Bankas. About injuries Nos. 2, 3 and 4 the Doctor, who held the post mortem examination, has clearly stated that they must have been caused by some blunt weapon. In respect of injury No. 4, he has said that it might have been caused by the blunt side of the Banka. This itself shows that amongst the two participants in tile occurrence. They had different intentions. One out of the two assailants i.e. Radhey Shyam and Munni Lal had used the back side of the Banka. If one of the two assailants had used the back side of the Banka, then from this conduct it can be reasonably inferred that such assailant had not the intention to cause the death of the victim, otherwise there was no reason to use the back side of the Banka, instead of sharp side which in normal course could have caused the death of the victim. However, so far the present appeal is concerned, we are not concerned with either of the two other accused persons. But this circumstance can be taken into consideration for judging the role played by the appellant. According, to us, by merely pressing down the victim before the other two accused persons assaulted him, it cannot be held that appellant had shared the common intention of causing the death of the victim. In the facts and circum stances of the case, of course, it has to be held that he shared only the common intention of culpable homicide not amounting to murder. He can be attributed with the intention that the injuries, which were being caused by the other two accused persons, were likely to cause the death of the victim. Accordingly, we set aside the conviction of the appellant under Section 302 read with Section 34, as well as his sentence to imprisonment for life. He is convicted under Section 304, Part 1, read with Section 34 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. The appeal is accordingly allowed in part to the extent indicated above. S.K. Appeal Partly allowed.

The three appellants In the two appeals along with 3 others, were tried for having committed murder. One of the accused being a minor, his trial was separated so that the same could he conducted by the Children Court. The case of the prosecution was that on the night intervening 6th and 7th October, 1982 the deceased and PW16. who was the first cousin of the deceased, were returning after witnessing Ram Leela. At that time the aforesaid 5 accused were also. returning from the show and it was alleged that they teased some girls of the village who had also gone to see the Ram LeeLa, and that the deceased and PWI6 ' objected to this behaviour of the accused persons. On this the accused persons abused them which was followed by exchange of abuses from both the sides. PW13 intervened and pacified them. Next day at about 2.30p.m.the deceased and Pw16 went to their flour mill to bring back 62 their bullocks and fodder cart. Tub of the accused with Pharsas, one with a Ballam, and three others with sticks came there. One of the accused abused the deceased and Pw16 saying that they would teach them a lesson for abusing them the previous night. Having said so one of the accused gave a pharsa blow from the blunt side on the head of the deceased. The other gave a pharsa blow on the head of the deceased. PW16raIsed an alarm and the remaining accused gave blow to PWI6. PW16 also got a blow of Ballam from the blunt side on his head. Thereafter an alarm was raised and all the accused persons fled away from the place of occurrence. The victim was taken to the local Hospital on a tractor and thereafter he was referred to A.I.I.M.S., New Delhi, where PWI examined him and also sent information to the police post 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. A.S.I., PW17 who had got the information about the occurrence went to the Institute and the statement was recorded. PW17 took up the investigation. The victim died in the Institute the next morning at 7.00 a.m. The postmortem examination was held by PW15 on 8th October, 1982 at 4.30 p.m. on 12th October, 1982 PWI examined one of the accused Suresh under the orders of judicial Magistrate and he made a report regarding the injuries he had received the duration of the time in respect of the injuries which he stated was 3 to 6 days. The five accused were put up for trial, and the Session Judge convicted and sentenced all these accused for offences under Section 302 read with 149, Sections 148 and 323 read with Section 149 to imprisonment for life. The High court having dismissed their appeals, the three appellants filed two appeals to this Court. In the appeals to this court it was contended on behalf of the appellants that on the materials on record the Courts below should have come to the conclusion that the prosecution had suppressed the real manner of occurrence and had disclosed a version of the occurrence which cannot be accepted. It was pointed out that the accused Suresh, Vijender and Virender were the sons of accused Hari Sing who was age d about 60 years, and that it was highly improbable on the part of , Hari Singh to join his sons for committing the murder of the deceased 63 Mange Ram who had protested about the behaviour of his sons. It was submitted that in view of the admitted position that the residential unit, and the tube well being by the side of the flour mill of the deceased there was no question of the accused persons going to the flour mill of the deceased to assault the deceased and PWI6. It was further submitted that in the First Information Report the name of accused Suresh was mentioned in connection with the previous night 's incident and that he and Satbir gave pharsa blows on the head of the deceased, that PW 16 modified his version of the FIR in court by saying that the injuries on the head of the victim were caused by the back side of the pharsa and that this improvement 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. The State raised an objection that in view of the dismissal of the Special Leave Petition of the two accused namely Suresh and Vijender against whom similar allegations had been made, it was not open to this Court to entertain any plea on behalf of the present 3 appellants because it will be deemed that while dismissing the special leave petition this Court had affirmed the findings recorded by the Trial court and the High Court in respect of the manner of occurrence and participation of the accused persons including the 3 appellants. Allowing the appeals in part, and setting aside the convictions of the appellants under Section 302 read with Section 149 of the Penal Code; under Sections 148 and 323 read with Section 149; this court, HELD: 1. Appellant Satbir convicted under section 304 Part II and sentenced to undergo rigorous imprisonment for seven years. Appellant Gulbir convicted for an offence under Section 325 Penal code and sentenced to undergo rigorous imprisonment for three years. Appellant Hari Singh convicted for an offence under Section 323 of the penal code and sentenced to the period of imprisonment already undergone. (75 H, 76 A B) 2 (a). In the 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 coordinate jurisdiction, should have consistent 64 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. (72 D E) (b) Before any such principle is applied It must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the co accused amounts to a judgement or an affirmance of the findings of the High Court, about the manner of the occurrence, participation of the different accused persons and the nature of offence committed by them. (72 F) 3. Article 136 (1) of the constitution confers overriding and extensive powers of granting special leave to appeal or rejection thereof in the discretion of this Court. Article 136 does not confer a right to appeal, it confers only a right to apply for special leave to appeal, which taking all facts and circumstances into consideration may he granted or rejected. Even in a case where the special leave application is rejected, the order of the High Court does not 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 Court does not convert itself to a Court of appeal. (72 D H) Gian Chand vs Kunjbehanlal ; , referred to. (76 E) 4. 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. (73 D) 5. The doctrine of precedent is not 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 the Court. (73 F) 6. Rejection of the Special Leave Petition gives a finality to an 65 order of the High Court, Inasmuch as the same accused cannot file more than 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 not he miscarriage of justice and to avoid a direct conflict and confrontation between two orders of this court. (73 H, 74 A) Harbans Singh vs State of U. P., ; ; Pyare Singh vs State of Madhya Pradesh, [1992] SUPP 3 SCC 45 and (77 F) A.R. Antulay vs RS. Nayak. ; , referred to. (78 C) 7. The mare rejection of the Special Leave Petition of co 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 framework of Article 136 of the Constitution for consideration. by this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that a Special Leave Petition In respect of co accused persons with more or less similar charges, evidence and convictions has already been rejected. (75 F G) 8. On the basis of the evidence of PW16, the informant, it cannot he said that the accused persons had an Intention to cause such injuries son the victim which may result In his death. When they caused the injuries from the blunt side of the Pharsa it will have to be presumed that they had knowledge that those Injuries can cause the death, but there was no intention on their part to cause death. As such the Trial Court and the High Court should not have convicted the appellants under Section 302 read with Section 149. (71 G H) 9. (a) On the materials on record in the Instant case, the prosecution has not been able to prove and establish that the appellants had the common object or shared the common 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 right 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 66 the head of the deceased. It cannot be held that appellant Satbir had an intention to cause the death of the victim. In such circumstances it can be said that he had only knowledge that such blow may cause an injury resulting in the death of the victim. He should have, therefore, been convicted under Section 304, Part II, of the Penal Code. (75 C E) (b) So far as appellant Gulbir is concerned, 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 non vital part of the body. In this background, he can be held to have committed the offence only under Section 325 of the Penal Code. (75 F) (c) In regard to the appellant Hari Singh, he was aged about 60 years at the time of the occurrence and the prosecution case itself, is that he is said to have given a stick (lathi) blow to the informant PW 16. He is not alleged to have given any blow to the deceased. He has, therefore,to be held guilty for an offence only under Section 323 of the Penal Code. (75 G)

vil Appeals Nos. 1597 98 of 1988. From the Judgment and Order dated 3.3.1988 of the Bombay High Court in W.P. Nos. 1409 & 1776 of 1986. Dr. Y.S. Chitaley and Mrs. Urmila Sirur for the Appellant. Ahok K. Gupta, S.J. Deshmukh, Ms. Vrinda Grover and Ms. Bina Gupta for Respondent Nos. 1 to 4. The Judgment of the Court was delivered by SAWANT, J. The present appeals arise out of a battle for recognition between the rival trade unions in proceedings under the Maharashtra Recognition of Trade Union & Preven tion of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act '). The fourth respondent Company has two factories, one at Bhandup, Bombay employing about 1700 workers and the other at Aurangabad employing about 1000 workers. The first respondent Union, viz., the Association of Engineering Work ers, Bombay obtained a certificate of recognition from Industrial Court, Thane under Section 12 of the Act, on April 7, 1977 for the Company 's undertaking at Bhandup. While the first respondent Union was acting as such recog nised union, many of the workers claimed that they had resigned from the said Union and formed a new union called the Automobile Products of India Employee 's Union which is the appellant Union and registered it on January 7, 1981 under the . On October 9, 1981, the appellant Union made an application to the Industrial Court, Thane under Section 13(1)(ii) of the Act for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the Bhandup Undertaking had fallen below 30 per cent of the total strength of workmen in that Undertaking for the preceding six months. In its reply dated November 16, 1981, the first respondent Union refuted the allegation in the application and contended that its membership was more than 30 per cent for the relevant peri od. The appellant Union on March 1, 1982 submitted yet another application for cancellation of recognition of the first respondent Union this time under Section 13(1)(i) of the Act alleging that the recognition was obtained by the first respondent Union by misrepresentation and/or fraud, and that it was granted recognition also by mistake. The Industrial Court rendered the relief in favour of the appel lant Union. However, the said decision was set aside by the High Court and the decision of the High Court was upheld by this Court. Here ended the first skirmish. 182 3. The appellant Union thereafter started the second battle this time for its own recognition under Section 14 of the Act and the present appeals are an outcome of the said proceedings. On July 29, 1982, the appellant Union filed an application under Section 14 of the Act for being registered itself as a recognised union in place of the first respond ent Union on the ground that it had the largest membership of the workers in the Bhandup undertaking, viz., 1036 out of a total of 1700 workers, i.e., about 69% of the total stength. The first respondent Union in its reply of October 7, 1982 contested the appellant Union 's claim and pleaded that it had a membership of about 1400 workers. Both the appellant Union and the first respondent Union furnished with their pleadings the details of their membership. On August 19, 1985, the appellant Union made an application to the Industrial Court to hold an inquiry under Section 12(2) of the Act by directing the investigating officer to verify the membership of both the Unions. On September 5, 1985, the Industrial Court gave directions to the Investigating Offi cer appointed under the Act to assist the Court, to investi gate the membership of both the Unions. While the Investigating Officer was in the process of verifying the memberships of the two Unions, suggestions were made for deciding by secret ballot as to which of the Unions commanded the majority. As per the suggestion, the first respondent Union on December 19, 1985 submitted a draft proposal to the Industrial Court as follows: 1. The issue pertaining to recognition of any of the unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot. The Union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any tech nicality or objection. The union which thus fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union. The appellant Union also submitted its draft proposal, at the same time, in more or less the same terms. On the same day, i.e., December 19, 1985, the Industrial Court passed an order directing the Investigating Officer to hold a secret ballot in the premises of the Company within 30 days from the date of the order. The employees who were entitled to vote in the ballot were those who were on the rolls of the 183 Company on July 1, 1985, those who joined employment of the Company, thereafter, being disentitled to do so. According ly, a secret ballot was held on January 4, 1986. The result of the ballot showed that in all 1585 workers voted, but only 1578 ballot papers were valid. The appellant Union secured 798 votes whereas the first respondent Union secured 780 votes. The Investigating Officer submitted his report to the Industrial Court on January 21, 1986. On January 30, 1986, the first respondent submitted its objections contend ing that the cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermittently interrupted were not given an opportunity to exercise their votes, and that there should have been a proper notification with regard to the date of voting so that the employees who were away could have exercised their votes. On February 10, 1986, the Indus trial Court passed an order granting recognition to the appellant Union in place of the first respondent Union, under Section 14 of the Act after disposing of the objec tions raised by the first respondent Union. The Industrial Court held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one. The Industrial Court also held that there was no substance in the objections of the first respondent Union that by treating July 1, 1985 as the cut off date, the workers who were otherwise entitled to vote were deprived of their right to vote and also that the notice of the ballot which was given to the workers was proper one. The Industrial Court further granted the request of the appellant Union for cancellation of the recognition of the respondent union. under Section 13(1)(vii) of the Act as a consequence of the recognition of the appellant Union. On February 11, 1986, the Industrial Court granted a certif icate of recognition to the appellant Union under Section 14 of the Act. Against the said decision, two writ petitions were filed in the Bombay High Court under Article 227 of the Constitution of India, one, viz., Writ Petition No. 1409 of 1986 by two workers who were members of the first respond ent Union and the other, viz., Writ Petition No. 1776 of 1986 by the first respondent Union. In both the petitions, it was alleged that the Industrial Court had violated the provisions of the Act relating to the grant of recognition of the Union by adopting a procedure which was not sanc tioned by it and which was, therefore, illegal and invalid. Reliance was placed for this purpose on a decision of the Bombay High Court in Maharashtra General Karngar Union, Bombay vs Mazdoor Congress, Bombay & Ors., [1983] M.L.J. 147. The appellant Union contested both the petitions con tending that 184 the petitioners there were estopped from challenging the procedure which was adopted by the Industrial Court by consent of the first respondent Union. The High Court by its impugned decision allowed both the writ petitions and set aside the order of the Industrial Court mainly relying upon its earlier decision in Maharashtra General Kamgar Union, Bombay case (supra). The present appeals are directed against the impugned decision passed in both the said writ petitions. What, therefore, fails for our consideration in these appeals is whether the procedure adopted by the the Indus trial Court for granting recognition to the appellant Union was illegal. To appreciate the answer, it is necessary first to appreciate the object and the scheme of the Act. As has been stated in the Preamble of the Act, the State Government had appointed a committee called the "Committee on Unfair Labour Practices" for indentifying certain activities of employers and workers and their organisations which should be treated as unfair labour practices and for sug gesting actions to be taken against the employers and employees or their organisations for engaging in such unfair labour practices. The Government, after considering the report of the Committee, was of the opinion that to deal with the unfair labour practices, it was necessary among other things, to provide for the recognition of trade unions for facilitating collective bargaining, and to state their rights and obligations, to confer certain powers on them and to provide for certain consequences for indulging m unfair labour practices. It is further a common knowledge that although since long there was a strong demand from some sections for recog nising the bargaining agent of the workmen by a ballot secret or otherwise, the National Labour Commission did not countenance it for certain obvious reasons. It was felt that the elective element would introduce unhealthy trends which would be injurious to the trade union movement, to industri al peace and stability endangering the interests of the workers, the employers and the society as a whole. It was feared, and from what has become almost a normal feature today, we can say rightly, that the elective element will encourage the growth of mushroom unions just on the eve of election outbidding each other in promising returns to the workers merely to assort supremacy and unmindful of the health of the industry leading eventually to unwarranted industrial strife, stoppage of production and even closure of the establishment with a consequent loss of production and employment. It was, therefore, thought prudent in the interests of stable industrial 185 relations and industrial peace to evolve a mechanism whereby the bargaining agent on behalf of the workers will have a durable stability as such agent, with a guarantee of unin terrupted loyalty of its members and an unquestionable representative character over a certain period of time. That is why the concepts such as "recognised union" or "represen tive union" emerged and along with it the machinery to determine it. The mechanism necessarily involved a process by which the workers who claimed that they were speaking through their bargaining agent had the responsibility to maintain their support to it over a reasonable period of time. This could be ensured by them by continuing their membership of the union over a specific period. The continu ation of their membership of the union concerned over a period ensured that their association with the bargaining agent was of a steady and durable character and their alle giance and loyalty to it were not of a fleeting moment but were born of a proper evaluation of all facts. It is in the light of this background that we have. to examine the scheme of the Act so far as it relates to the recognition and derecognition of the Unions. Chapter III of the Act deals with the recognition of unions, whereas Chapter IV deals with their obligations and rights. Chapter VI deals, among other things, with unfair labour practices on the part of the recognised unions and Chapter VII gives powers to Courts to declare certain acts of recognised unions as unfair labour practices. Chapter VIII gives to the Courts the power to punish and Chapter IX, to impose penalty on the recognised unions. The privileges given to the recognised unions and the obligations and responsibilies cast on them are also considerable. Chapter III which deals with the recognition of unions makes it clear in Section 10 that the said Chapter shall apply to every undertaking where fifty or more employees are employed, or were employed on any day of the preceding 12 months. If the number of employees employed in the undertak ing at any time falls below 50 continuously in a period of one year, the Chapter ceases to apply to such undertaking. Section 11 of the Chapter then states the procedure for recognition of union. A union which is desirous of being registered as a recognised union for any undertaking has to make an application to the Industrial Court for the purpose. However, for making such application, the Union must have not less than 30 per cent of the total number of employees in that undertaking as its members for the whole of the period of six calendar months immediately preceding the calendar month in which it makes the application. The Indus trial Court then has 186 to dispose of the application as far as possible within three months from the elate of the receipt of the applica tion if all the concerns of the undertaking are situated in the same local area; and in any other case, within four months. Section 12 then lays down the manner in which the Indus trial Court will proceed to enquire into the application and grant recognition. On receipt of the application, the Indus trial Court has to make a preliminary scrutiny of it to find out that it is in order. The Court then has to cause a notice to be displayed on the notice board of the undertak ing for which the recognition is sought, stating therein that the Court intends to consider the said application on a date specified in the notice, and also calling upon the other union or unions, if any, in the undertaking as well as the employers and employees affected by the proposal for recognition, to show cause within a prescribed period as to why recognition should not be granted to the applicant union. If after considering the objections, if any received, and if after holding such enquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the applicant union satisfies the condition stated in Section 11, viz., among other things, that it has a membership of not less than 30 per cent for the relevant period and that it also satisfies the conditions which are specified in Section 19 of the Act, the Court grants recognition to the applicant union and issues a certificate of such recognition to it. On the other hand, if the Court comes to the conclu sion that any of the other unions has the largest membership of employees and the said other union has notified to the Court its claim to be registered as a recognised union and if that other union also satisfies the requisite conditions of Section 11 and 19 of the Act, the Court has to grant recognition to the said other union. It is necessary, at this stage to state the conditions laid down in Section 19 which are necessary to be complied with by a union for recognition. Section 19, which appears in Chapter IV dealing with the obligations and rights of recognised unions, lays down that the union which seeks recognition under the Act has to provide in its rules the following matters, and those matters have to be duly observed by it, viz., (i) the mem bership subscription of the union should not be less than fifty paise per month; (ii) the Executive Committee of the union must meet at intervals of not more than three months; (iii) all resolutions passed by the Executive Committee or the general body of the union have to be recorded in a minute book kept for the purpose; and (iv) the union 's accounts have to be audited at least once in each financial year by an auditor appointed by the State Government. 187 Section 12 then states that at any time there shall not be more than one recognised union in respect of the same undertaking. The section also enjoins upon the Court not to recognise any union, if it is not satisfied that the appli cation for its recognition is not made bona fide in the interest of the employees but is made in the interest of the employer and to the prejudice of the interest of the employ ees. So also the section mandates the Court not to recognise any union if at any time within six months immediately preceding the date of the application for recognition, the applicant union has instigated, aided or assisted the com mencement or continuation of a strike which is deemed to be illegal under the Act Section 13 provides for cancellation of the recognition of the union and suspension of its rights as a recognised union. It states that if the Industrial Court is satisfied after holding an enquiry in the matter that: (i) the union was recognised under mistake, misrepresen tation or fraud, or (ii) the membership of the union has for a continuous period of six calendar months fallen below the minimum required under Section 11 for its recognition, viz., 30 per cent of the total strength of the employees; or (iii) the recognised union has, after its recognition, failed to observe the conditions specified in Section 19; or (iv) the recognised union is not being conducted bona fide and is being conducted in the interest of employer to the prejudice of the interest of the employees; or (v) it has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under the Act; or (vi) its registration under the is cancelled; or (vii) another union has been recognised in place of the union recognised under the said Chapter, it would cancel its recognition. The Industrial Court is also given the power to suspend the rights of the 188 recognised union for some specified period and it may not proceed to cancel the recognition, if it is satisfied that the former course is in the circumstances, a proper one. Section 14 with which we are concerned then lays down the procedure for recognition of other union when there is already a recognised union in the field. It states that any union can make an application for being registered as a recognised union in place of a recognised union which is already registered as such for the undertaking. Such other union can make an application on the ground that it has the largest membership of employees employed in the undertaking. The conditions precedent to making such application, howev er, are that: (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recognised of such union; (iii) the union must have satisfied the conditions neces sary for recognition specified under Section 11; and in addition, (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recognised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satisfied. If, however, the Court comes to the conclusion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary conditions, the Court will grant recognition to the other union. Section 15 provides for re recognition of the union whose recognition has been cancelled on the ground that it was recognised under a mistake or on the ground that its membership had for a continuous period of six calendar months fallen below the minimum required under Section 11, viz., below 30%. Such an application can be made by the derecognised union after three months from the date of its derecogni 189 tion. On such application being made, the provisions of Section 11 and 12 referred to above would apply to it as they applied to an application made for the union 's initial recognition. However, this section also makes it clear that if the recognition of the union had been cancelled on any other ground, it cannot apply for re recognition within a period of one year from the date of such derecognition save with the permission of the Court. Section 16 states that even if the recognition of union is cancelled, it will not relieve the union or any of its members from any penalty or liability incurred under the Act prior to such cancellation. Section 18 provides for recogni tion of unions for more than one undertaking. Section 20 which appears along with Section 19, 21 and 23 in Chapter IV dealing with the obligations and rights of recognised un ions, among other things, deals with the right of a recog nised union and of such officers and members of the office staff and members of the recognised union, as may be autho rised by or under rules made by the State Government. Those rights include the right: (a) to collect sums payable by members to the union on the premises, where wages are paid to them; (b) to put up or cause to be put up a notice board on the premises of the undertaking in which its members are em ployed and to affix or cause to be affixed notice thereon; (c) for the purpose of the prevention or settlement of an industrial disputes (i) to hold discussions on the premises of the undertaking with the employees concerned, or its members (ii) to meet and discuss with the employer or any person appointed by him in that behalf the grievances of employees; (iii) to inspect, if necessary, any place in the undertaking where any employee is employed; (d) to appear on behalf of any employee or employees in any domestic or departmental enquiry. The section also makes it clear that it is only the recog nised union. 190 when there is one, which shall have the right to appoint its nominees to represent workmen on the Works Committee consti tuted under Section 3 of the and it is only the recognised union which shall have the right to represent in certain proceedings under the said Act, and that the decisions arrived at or order made in such proceedings shall be binding on all the employees in such undertaking, and to that extent the provisions of the said Act shall stand amended. Section 21 then states that when there is a recognised union, no employee in the undertaking shall be allowed to appear or act or allow to be represented in any proceedings relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union. The only exception to this rule is in the case of the undertakings governed by the Bombay Industrial Relations Act where the representatives of the employees under Section 30 of that Act are given the special privilege. It is not necessary to deal with the other provisions of the Act. It is thus clear that the recognition or derecogni tion of a union under the Act is not a matter which concerns only the contesting unions or its members. It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general. No union is entitled to be registered as a recog nised union under the Act merely because it satisfies the membership qualification. The Industrial Court is forbidden from granting recognition to a union whatever its member ship, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(.5) and 12(6) or does not satisfy the conditions mentioned in Section 19. A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an applica tion for recognition of a new union is entertained. A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh appli cation for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the Court. In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant union is not disentitled to recog nition or to apply for recognition, under the other provi sions of the Act. As regards the membership qualification itself, the Act enjoins that for being recognised, the applicant union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months 191 preceding the month in which the application for recognition is made. When the applicant union seeks recognition for itself by displacing the existing recognised union, the applicant union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately preceding the calendar month in which it made its application, but had also a larger membership during the said period than the membership of the recognised union. Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superi ority in it over a continuous specified period. What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the Union its representative character. It is its representative character determined by such membership that gives a union a right to make the application for recognition. However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act. the recog nition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act. The facts in the present case would reveal that what was done by the Industrial Court was to permit the registra tion of the union as a recognised one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found out is the exclusive member ship of the contesting unions continuously over the speci fied period, the overlapping membership being ignored. The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them 192 to substitute the provisions of the Act. Hence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act. The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union, (supra). In the re sult, the appeals fail and are dismissed. The matter is remanded to the Industrial Court for disposal according to law. It is, however, made clear that if there are any set tlements which have been arrived at between the appellant Union and the respondent Company, they will be allowed to run their full course. The appellant Union will not enter into any settlement during the pendency of the present proceedings and if any settlement is to be entered into, it should be done only with the consent of the respondent Union which has not lost its recognition as yet. There will be no order as to costs. N.V.K. Appeals dismissed.

The fourth respondent, a company had two factories in the State of Bombay. The first respondent Union obtained a certificate of recognition from the Industrial Court under section 12 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 for one of the company 's undertakings. While it was acting as such recognised union, many of the workers claimed that they had resigned from the said union and formed a new union, the appellant Union had it registered on January 7, 1981. The Appellant Union made an application to the Industri al Court under Section 13(1)(ii) on October 9, 1981 for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the undertaking had fallen below 30 per cent of the total strength of workmen in the undertaking for the preceeding six months. The allegations were refuted by the first re spondent Union and it was further contended that its member ship was more than 30 per cent for the relevant period. Another application was submitted by the appellant Union on March 1, 1982 for cancellation of the recognition of the first respondent Union under Section13(1)(ii) alleging that the recognition was 178 obtained by misrepresentation and/or fraud, and that it was also granted recognition by mistake. The Industrial Court rendered the relief in favour of the appellant Union, but the said decision was set aside by the High Court, and confirmed by this Court. After sometime the appellant Union moved an application under section 14 for being registered itself as a recognised union in place of the first respondent Union on the ground that it had the largest membership of the workers in the undertaking, i.e. about 69% of the total strength. This claim was contested by the first respondent Union, in its reply, and it was pleaded that it had a membership of 1400 workers. Details of membership were furnished by the parties with their pleadings and an application was made by the appellant Union to the Industrial Court to hold an enquiry under section 12(2) by directing the Investigating Officer to verify the membership of both the Unions. The Industrial Court thereupon gave directions to the Investigating Officer appointed under the Act to investigate the membership of both the Union. While the investigation was in progress, both the Unions submitted draft proposals to the following effect: (1) The issue pertaining to recognition of any of the Unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot; (2.) The union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any technicality or objec tion and (3) The union which fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union. The Industrial Court directed the Investigating Officer to hold a secret ballot in the premises of the Company and the employees who were entitled to vote in the ballot were those who were on the rolls of the Company on July 1, 1985. A secret ballot was held and the appellant Union secured 798 votes whereas the first respondent Union secured 780 votes. The first respondent Union submitted objections contend ing that he cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermitently interrupted were not given an opportunity to exercise their votes. 179 The Industrial Court disposing of the aforesaid objection, held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one, and granted the request of the appellant Union for cancellation of the recognition of the respondent Union under section 13(1)(VII) of the Act, and as a consequence of the recognition, granted recognition to the appellant Union in place of the first respondent Union under section 14 of the Act, and granted the necessary certificate of recognition. Writ petitions were filed in the High Court under Arti cle 227 of the Constitution by two workers of the first respondent Union, contesting the aforesaid order of the Industrial Court, and they were allowed. The High Court relying on its earlier decision in Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , set aside the order of the Industrial Court. In the appeals to this Court on the question: whether the procedure adopted by the Industrial Court for granting recognition to the appellant Union was illegal. Dismissing the appeals, this Court, HELD: 1. The order of the Industrial Court granting recognition under the Act to the appellant Union by follow ing the method of ballot is prima facie, illegal being in breach of the provisions of the Act. The High Court had, therefore rightly interfered with the said order. [192B] Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , approved. Section 14 lays down the procedure for recognition of the other union when there is already a recognised union in the field. The conditions precedent to making such applica tion are; (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recog nition of such union; (iii) the union must have satisfied the conditions necessary for recognition specified under section 11; and in addition; (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recog nised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satis fied. If, however, the Court comes to the conclu 180 sion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary condi tions, the Court will grant recognition to the other union. [188B, C G] 3. The recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members. It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general. No union is entitled to be registered as a 'recognised union under the Act merely because it satisfies the membership qualification. [1901D E] 4. The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under section 12(5) and 12(6) or does not satisfy the condi tions mentioned in section 19. [190E] In the instant case what was done by the Industrial Court, was to permit the registration of the union as a recognised one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever command a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. The Court thus ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. What had to be found out was the exclusive membership of the contesting unions con tinuously over the specified period the overlapping member ship being ignored, [191D G] 5. The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. To permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act. [191G, H; 192A] [Matter remanded to Industrial Court for disposal ac cording to law.] [192B] 181

Appeal No.123 of 1957. Appeal from the judgment and order dated May 12, 1955, of the Punjab High Court in Civil Reference No. 17/1953. A. V. Viswanatha Sastri, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants. C.K. Daphtary, Solicitor General of India, R. Ganapathy Iyer and D. Gupta, for the respondent. April 26. The Judgment of the Court was delivered by KAPUR, J. This is an appeal against the judgment and order of the High Court of Punjab made on a reference under section 66(1) of the Indian Income tax Act which was answered in favour of the Commissioner of Income tax. The appellant is the assessee a Hindu undivided family with Sheel Chandra as its Karta and the respondent is the Commissioner of Income tax. The appeal relates to the assessment year 1951 52. The appellant, a Hindu undivided family, consisted of Sheel Chandra and his Younger brother. Their father, Adishwar La], upto his death on April 16, 1950, was the Treasurer of several branches of the Central Bank of India (which in the judgment will be referred to as the Bank). During his father 's lifetime Sheel Chandra was employed as an Overseer in the Bank on a salary of Rs. 400 a month. Sheel Chandra was appointed Treasurer of the Bank at Delhi and sixteen 671 other branches of the Bank. As Treasurer he furnished security to the Bank of certain properties of the Hindu undivided family, which consisted of title deeds of immovable properties in Chandni Chowk, Delhi, and Government of India securities of the value of Rs. 75,000. The Hindu undivided family owns considerable property. Its income from house property alone is Rs. 50,000 per annum and it owns stocks, shares and Government securities also of considerable value. As Treasurer Sheel Chandra received in the year of account from the Bank a sum of Rs. 23,286 and the question for decision is whether this sum is the individual income of Sheel Chandra as salary or it is part of the income of the Hindu undivided family. The Income tax Authorities held this sum to be the latter and taxed it as such. The Income tax Appellate Tribunal in upholding this view held that on a proper construction of the written agreement between Sheel Chandra and the Bank, the emoluments received by the Treasurer were profits and gains of business and it further held that as the security furnished by Sheel Chandra came out of the joint family proper. ties, the emoluments could not be said to have been earned without detriment to the family property and therefore were part of the income of the Hindu undivided family. At the instance of the appellant the Tribunal referred under section 66(1) the following two questions to the High Court: (1)" Whether in the facts and circumstances of the case and on a true construction of the agreement between the Central Bank of India and Sheel Chandra the salary and other emoluments received by Sheel Chandra as Treasurer of the said Bank are assessable under the head ' salary ' or under the head 'Profits and gains of business '." (2)" Whether in the facts and circumstances of the case, Sheel Chandra 's emoluments as Treasurer of the Central Bank of India Ltd. were rightly assessed in the hands of the Hindu undivided family of which he is the Karta". Both questions were answered against the appellant. On a consideration of the various clauses of the agreement between Sheel Chandra and the Bank, the 672 High Court held that the relationship between them was not one of master and servant but that of an employer and independent contractor and therefore the emoluments received by Sheel Chandra as Treasurer were not salary but profits and gains of business. As to the second question the High Court was of the opinion that the emoluments were the income of the Hindu undivided family because Sheel Chandra was :not appointed Treasurer on account of any personal qualification but he was appointed because (a) his father was a Treasurer of the Bank before him and (b) he had furnished substantial security which was part of the property of the Hindu undivided family. Against this judgment and order the appellant has come in appeal to this Court. The nature of the employment of Sheel Chandra has to be gathered from the agreement dated September 19, 1950, between him and the Bank. It shows that on his application for appointment as a Treasurer at Delhi and sixteen other branches of the Bank, the Bank appointed him Treasurer for those branches and he could ' by mutual agreement, be appointed at other branches in the Punjab, U. P. and Rajasthan. The appointment took effect from April 16, 1950. Sheel Chandra undertook to perform the duties and be responsible as Treasurer of the various branches of the Bank and was required to engage and employ subordinate staff called the Cash Department Staff such as Head Cashiers, Potdars, Guaranteed Peons, Godown Keepers, Assistant Godown Keepers, Chowkidars and Clerks and other persons necessary for the efficient working of the said offices. He had the power to " control, dismiss and change" this Staff at his pleasure but he could not engage or transfer any member of the Staff except with the approval of the Bank and had to dismiss any such member if so required by the Managing Director of the Bank or Agent of the Office. The Treasurer and the Cash Department Staff were to do and be responsible for all work in connection with receipts and payments of monies and bad to do ouch other work as was customarily done by cashiers 673 and shroffs of Banks. The Treasurer was also responsible for the correctness and genuineness of all hundies and cheques bearing signatures and endorsements in vernacular and for genuineness of all signatures and writings in any language or character or any securities, voucher deeds, documents and writings which the Treasurer or the Cash Department Staff dealt with and in case of any loss or damage arising out of any forged signatures and endorsements on any document accepted or dealt with by the Cash Department Staff as correct and genuine, the Treasurer was responsible to make good the loss. He was also required, when asked by the Bank, to engage the necessary staff, to look after the goods pledged with the Bank and he was responsible for the good conduct of such staff. It was also his duty to make enquiries and report upon the identity, credit and solvency of persons dealing with the Bank and was liable for any loss arising out of any wilful misrepresentation or negligence in the enquiry or report made by him or his representative in any matter arising in the course of employment. He or his representative were also required, when asked, to give reliable information in regard to hundi business but he was not responsible for any damage or loss arising therefrom. He also undertook when required by the Officers of the Bank to value and give correct certificate in regard to the genuineness, fineness and weight of bullion and gold ornaments and other valuables pledged with the Bank. He was responsible for any loss to the Bank in case of any wilful misrepresentation or negligence in regard to this branch of his duty. He further undertook to supply to the Bank as many persons as were required at the various branches of the Bank which the Bank opened in future. He undertook responsibility for the safe custody of the monies and ornaments and other valuables kept with or pledged with the Bank as also for the bills of exchange, promissory notes, hundies or other securities. Besides this he was required to satisfy the Agent or the Manager of the branch that all the monies of the Bank and other valuable securities which had not been duly 674 used and accounted for were intact and in their proper places. Sheel Chandra was paid a salary of Rs. 1,750 per mensem for all the branches he was employed in. Besides this he was paid certain sums of money for guaranteeing the conduct of Godown Keepers, Assistant Godown Keepers and Chowkidars supplied by him. If the branches or out agencies were increased he was to receive such increase in salary as might mutually be agreed upon. On the closing of any branch there was to be a corresponding reduction in the remuneration. The members of the Cash Department Staff were to be paid travelling allowance according to the rules of the Bank. In addition to the remuneration above mentioned the Treasurer or his authorised representative when visiting different branches were to get actual railway fare. The various members of the Cash Department Staff were to be paid their salary directly by the Bank but the Bank was not bound to pay more than the scale laid down by it. The permanent members of the Cash Department Staff were to get the usual increments and benefit of Provident Fund and travelling allowance in accordance with the rules of the Bank. The Treasurer was required to engage members of the Cash Staff on salaries laid down by the Bank and if he paid anything more than the usual Bank scale he had to pay it himself. The Treasurer was also entitled to nominate and appoint a representative to carry on the duties undertaken by him at the various offices of the Bank but these appointments were Subject to the approval of the Bank. The Treasurer was responsible for the acts of omission and commission and for neglect and default of his representatives and for each and every member of the Cash Department Staff. There are various clauses in the agreement requiring the Treasurer or his representative to perform their duties efficiently, honestly and in a proper manner. The Treasurer and the Cash Department Staff were under the control of the Bank. They were required to make entries in the books of account which were furnished by the Bank giving full particulars of all monies received and paid 675 by them and in such manner as the Agent of the Bank might from time to time direct in writing. The Treasurer had to carry out his duties faithfully and any communication made by the Bank to any member of the Cash Department Staff was to be considered as a communication made to the Treasurer himself and he was bound to take notice of it. The agreement could be terminated by three calendar months ' notice in writing by either side but in the event of any breach of any condition of the agreement by the Treasurer his services could be terminated forthwith; but his liability was to continue. There was also an arbitration clause. Counsel for the appellant contended that the various provisions of the agreement showed that Sheel Chandra was a servant of the Bank and not an independent contractor. He laid particular emphasis on the fact that he was appointed a Treasurer on a monthly salary and his services could be terminated forthwith in certain circumstances. Besides this he was to carry out his duties as directed by the Bank and was to discharge his duties faithfully and if in the discharge of his duties he caused any loss to the Bank he was liable to make good the loss. These factors, according to him, showed that he was not an independent contractor or an agent of the Bank but was a salaried servant. The contention on behalf of the respondent on the other hand was that the agreement showed that Sheel Chandra was carrying on a business in that he was supplying cashiers and other members of the Cash Department Staff for a monetary con sideration. He guaranteed their fidelity which was an insurance undertaken by him. He was to get certain sums of money for supplying each member of certain classes of servants to the Bank and the agreement between the Bank and Sheel Chandra could be terminated by notice and there was an arbitration clause and he was not required to serve personally. Undoubtedly there are some terms in the agreement which are unusual as ordinary agreements of service go but in the case of an agreement between a Bank and a Treasurer they are riot so Unusual. There was 676 an agreement with very similar clauses in Shivanandan Sharma vs The Punjab National Bank Ltd. (1) and it was held to be an agreement of service and not of agency. Now, the duties of Sheel Chandra under the agreement are such as are peculiar to the employment of Treasurers. It is true that as Treasurer, Sheel Chandra had also undertaken to indemnify the Bank not only for his own default but also for the default of the members of the Cash Department Staff. But Banks have to deal with monies, valuable securities, gold and other valuables and must necessarily employ servants whose honesty is guaranteed and it is necessary for the Bank to have some one in its employment who can perform these duties in a responsible manner and be answerable to the Bank for negligence and default in the performance of this class of work. In the very nature of things one man cannot do all this work, not even at one branch, what to say of several branches; other people have therefore to be employed and although the persons employed in the Cash Department are servants of the Bank they do the work which Treasurers ordinarily and customarily do and consequently the Treasurer is made responsible for any damage which the Bank suffers due to the default of the Treasurer or of those employed to do the work of the Cash Department. It is difficult to lay down any one test to distinguish the relationship of master and servant from that of art employer and independent contractor. In many cases the test laid down is that in the case of master and servant the master can order or require what is to be done and how it is to be done but in the case of an independent contractor an employer can only say what is to be done but not how it shall be done. But this test also does not apply to all cases, e.g., in the case of Ship 's master, a chauffeur or a reporter of a newspaper. It was pointed out in Cassidy vs Ministry of Health (2) that in the case of contract of service " a man is employed as part of the business, and his work is done as an integral part of the business whereas under a contract for services the contractor is not (1) ; (2) , 352 3. 677 integrated into the business but is only accessory to it". In certain cases it has been laid down that the indicia of a contract of service are (a) the master 's power of selection of the servant; (b) the payment of wages or other remunerations; (c) the master 's right to control the method of doing the work and (d) the master 's right of suspension or dismissal: Short vs J. and Henderson Ltd. (1). Bhagwati, J., in Dharangadhara Chemical Works Ltd. vs State of Saurashtra (2) said that in all cases the correct method of approach is whether having regard to the nature of work there was due control and supervision by the employer. We have given above the duties of the Treasurer in the present case, his obligations and the manner of control exercised over him and the staff employed by him to carry out the work of the Cash Department of the Bank. It is no doubt true that the Treasurer guaranteed his fidelity, good faith and honesty of the persons who were employed in the Cash Department of the Bank but that was a part of the duty that he undertook and that is peculiar to the very nature of his employment. Applying the test which was laid down by Bhagwati, J., in Dharangadhara Chemical Works Ltd. vs State of Saurashtra (2) that having regard to the nature of the work whether there was due control and supervision of the Bank over the Treasurer, the Treasurer in the instant case must be held to be a servant of the Bank. What we have to see is the effect of the agreement as a whole and taking the various clauses together it must be held that Sheel Chandra, the Treasurer, was a servant of the Bank. In view of this it is not necessary to discuss in detail the various cases that were cited at the bar. K. P. Bhargava vs The Commissioner of Income Tax, U. P. (3) was the case of a Treasurer of the Central Bank of India at Agra. There he was paid a salary of Rs. 100 and a commission for his work as a Guarantee Commission Agent but the terms of the contract were different and that was clearly a case of a Guarantee Commission Agency. (1) , 429. (2) ; , 160. (3) [1954] 26 88 678 Lala Jeewan Lal vs Commissioner of Income tax(1) was also a case of commission agency and in the peculiar circumstances of that case it was held to be business within section 2(5) of the Excess Profits Tax Act. The assessee there was paid a commission of 4 annas per cent. on the value of the contracts secured by him. Subsequently the commission was increased to Re.1 per cent. and for this extra commission he agreed to reimburse the mill in case of failure of a person purchasing through him to pay the price. Counsel for the respondent also relied on Commissioner of Income tax V. Kalu Babu Lal Chand (2) where the Managing Director 's remuneration was held to be the income of a joint family to be assessed as such in its hands. That case is distinguishable. There the karta of a Hindu undivided family took over a business as a going concern and carried on the business till the company was incorporated. The shares in the name of karta and his brother were acquired with the funds of the joint family. The company was floated with the funds of the joint family and was financed by it and the remuneration received was credited in the books of the family. The office of the Managing Director itself was assignable. The Articles of Association provided that the karta or his assigns or successors in business " whether under his name or any other style or firm " would be the Managing Director of the Company and he was to continue for life until removed because of fraud or dishonesty. Thus the acquisition of business, the flotation of the Company and the appointment of the Managing Director were inseparably linked together. The facts of that case were quite different from that of the present case which are akin to the facts in Shivanandan Sharma vs Punjab National Bank Ltd. (3). The next question for decision is whether the salary of Sheel Chandra as Treasurer of the Bank is assessable as part of the income of Hindu undivided family of which he is the karta or as his separate income. Both the Appellate Tribunal and the High Court were of the opinion that the emoluments as Treasurer were not acquired without any detriment and risk to the (1) (2) ; (3) ; 679 family property and therefore formed part of the income of the Hindu undivided family. Treasurership is an employment of responsibility, trust and fidelity and personal integrity and ability and mere ability to furnish a substantial security is not the sole or even the main reason for being appointed to such a responsible post in a Bank like the Central Bank of India. On the other hand his previous experience as an Overseer of the Bank and his being appointed on his applying for the post are indicative of personal fitness for it. There is nothing to show that Sheel Chandra had received any particular training at the expense of the family funds or his appointment was the result of any outlay or expenditure of or detriment to the family property. But it was argued on behalf of the respondent that because he had lodged joint family property by way of security his earnings as Treasurer became a part of the income of the Hindu undivided family for the reason that the acquisition was not without risk to the family estate. He relied on Gokul Chand vs Firm Hukum Chand Nath Mal (1) and Commissioner of Income tax vs Kalu Babu Lal Chand (2). In the former case a member of the joint family entered the Civil Service and that was made possible by the expenditure of family funds which enabled him to acquire the necessary qualifications and it was that fact which made his earnings part of the family income. The following passage in that judgment at p. 168 was emphasised: " It may be said to be direct in the one case and remote in the other, but if risk of or detriment to family property is the point in both cases, there appears to be no such merit in "science", recognised by the sages of the Hindu law, as would warrant the exclusion of gains of science as such from the category of partible acquisitions". Counsel particularly relied on the words 'risk of and contended that by reason of the family property being given in security, the risk as understood in that judgment hadarisen, because it became liable for any loss that might be incurred during the course of employment of Sheel Chandra. The word 'risk ' in that (1) (1921) 48 I.A. 162. (2) ; , 680 judgment must be read in the context in which it was used. Family estate was used and expenditure was incurred for equipping one of its members to join the Indian Civil Service. It was in that connection that the words 'risk of ' or 'detriment to ' family property were used. The latter case, Kalu Babu Lai Chand 's case(1), has already been discussed. The facts and circumstances of that case were different. The cases which the Privy Council relied upon in Gokul Chand 's case (2) were all cases where joint family funds had been expended to fit a member of the joint family for the particular profession or avocation the income of which was the subject matter of dispute but the respondents were not able to refer to any decision in which it was held that the mere fact of giving joint family property in security for the good conduct of a member of the family employed in a post of trust was sufficient to make the emoluments of the post joint family property because of any detriment to family property or risk of loss. It has not been shown that in this case there was any detriment to the family property within the meaning of the term as used in decided cases. In our opinion the judgment of the High Court was erroneous on both questions which were referred to it and they should both have been decided in favour of the appellant. The emoluments received by Sheel Chandra were in the nature of salary and therefore assessable under section 7 of the Income tax Act and not under section 10 of the Act as profits and gains of business and the salary was the income of the individual, i.e., Sheel Chandra and not the income of the Hindu undivided family. We therefore allow this appeal and set aside the judgment and order of the High Court. The appellant will have its costs in this Court as well as in the High Court. (1) ; Appeal allowed. (2) (1921) 48 I.A. 162.

S was the karta of the Hindu undivided family, consisting of himself and his younger brother. Their father was the Treasurer of a Bank till his death in 1950. During his father 's lifetime S was employed as an overseer in the Bank on a salary of Rs. 400 a month, and, subsequently, after his father 's death he was appointed Treasurer of the Bank at Delhi and sixteen other branches of the Bank. As Treasurer he furnished security to the Bank of certain properties of the Hindu undivided family. The agreement dated September 19, 1950, between him and the Bank, showed that he was appointed Treasurer on a monthly salary of Rs. 1,75o and he was also paid certain sums of money for guaranteeing the conduct of the cashiers and other members of the Cash Department Staff which he was required to employ with the approval of the Bank. He was to carry out his duties as directed by the Bank and if in the discharge of his duties he caused any loss to the Bank he was liable to make good the loss. He was not required to serve personally, but his services could be terminated by notice. In the year of account 1950 51 he received from the Bank a sum of RS. 23,286 as Treasurer. The Income tax authorities considered that this sum was not the individual income of S as salary but was part of the income of the Hindu undivided family and taxed if as such on the grounds (1) that the agreement between S and the Bank showed that the relationship between them was not one of master and servant but that of an employer and independent contractor and that the emoluments received by the Treasurer were profits and gains of business, (2) that S was appointed Treasurer not on account of any personal qualification but because his father was a Treasurer of the Bank before him, and (3) that as the security furnished by S came out of the joint family properties, the emoluments could not be said to have been earned without detriment to the family property and therefore were part of the Hindu undivided family: Held, (1) That on the true construction of the agreement dated September 19, 1950 the Treasurer was a servant of the Bank. Shivanandan Sharma vs The Punjab National Bank Ltd. ; and Dhayangadhara Chemical Works Ltd. vs State Of Saurashtra, , relied on. (2) That in view of the fact that there was nothing to show that S had received any particular training at the expense of the 87 670 family funds or that his appointment as Treasurer was the result of any outlay or expenditure of or detriment to the family property, but on the other hand his previous experience as an overseer of the Bank was indicative of personal fitness for his appointment as Treasurer, the mere fact he had lodged joint family property by way of security would not make his earnings as Treasurer part of the income of the Hindu undivided family. The use of the words " risk of " and " detriment to " in Gokul Chand vs Firm Hukum Chand Nath Mal, (1921) L.R. 48 I.A. 162, explained. Commissioner of Income tax vs Kalu Babu Lal Chand, [1960] 1 S.C.R. 32o, distinguished. Accordingly, the emoluments received by S were in the nature of salary and therefore assessable under section 7 of the Indian Income tax Act, 1922, and not under section 10 of the Act as profits and gains of business, and the salary was the income of the individual, S, and not the income of the Hindu undivided family.

Civil Appeal No. 1370 of 1968. Appeal by Special Leave from the Judgment and order dated the 6th March, 1967 of the High Court of Judicature at Allahabad in First Appeal No. Nil of 1965. J. P. Goyal and section M. Jain, for the Appellants. G.L. Sanghi, D. N. Misra and O. C. Mathur, for Respondent No. 1. G. N. Dixit and O. P. Rna, for the State of U.P. The Judgment of the Court was delivered by FAZAL ALI, J. This is an appeal by special leave against the judgment of the Single Judge of the Allahabad High Court deciding 666 a court fee matter in connection with the memorandum of appeal filed by the appellants before the Allahabad High Court against a decree passed by the Tribunal appointed under the hereinafter referred to as 'the Act '. The appellants had filed an application under section 13 of the Act before the Tribunal alleging that it was a partnership firm and claimed that an amount of Rs. 3,50,000/ by way of refund of security deposits and a sum of Rs. 55,000/ as commission was due from the respondents. The application was tried by the Tribunal and the claim preferred by the appellants was ultimately dismissed by the Tribunal by its decree dated May 19, 1965. Additional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act. The appellants then filed an appeal before the Allahabad High Court with a nominal court fee of Rs. 5/ but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the Tribunal which had been disallowed. The matter was taken up by the Taxing Officer, who, in view of the substantial importance of the point raised, made a reference to the Taxing Judge for deciding the court fee payable on the memorandum of appeal in the instant case. The plea of the appellants was that as the decision of the Tribunal did not amount to a decree as contemplated by section 2(2) of the Code of Civil Procedure 1908, ad valorem court fees were not payable and the appellants were entitled to pay court fees as prescribed in Sch. 11 article 11 of the Court Fees ' Act. The stand taken by the revenue was that as the present appeal was against a decree, the case of the appellants squarely fell within the ambit of section 4 of the Court Fees ' Act and therefore ad valorem court fees were payable under Sch. I article 1 of the Court Fees ' Act. The matter was taken up by the Taxing Judge who went into the question of law raised before him and after considering some authorities, particularly those of the Allahabad High Court, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court fees under Sch. I article 1 of the Court Fees ' Act. The Taxing Judge accordingly by his order dated October 11, 1965 directed the appellants to make up the deficiency in the payment of the court fees. It was against this order that the appellants filed a petition for special leave to this Court which having been granted the appeal has now been placed before us for hearing. This appeal involves a short but substantial question of law as to the interpretation, scope and ambit of Sch. II article 11 of the Court Fees ' Act as applicable to appeals preferred against the orders or decrees passed by the Tribunal constituted under the Act. The point is not free from difficulty and there appears to be a serious divergence of judicial opinion on the question as to whether in appeals like the present, Sch. I article 1 or Sch. II article 11 of the Court Fees ' Act would apply. Mr. Goyal learned counsel appearing for the appellants raised two points before us. In the first place he contended that as the proceedings before the Tribunal were not proceeding in a Civil Court nor was the Tribunal a Court, therefore, the decision of the Tribunal 667 even though loosely called as a decree is not a decree as contemplated by section 2(2) of the Code of Civil Procedure and therefore the case of the appellants clearly falls within the ambit of Sch. II article II of the Court Fees Act. It was next contended that as the Tribunal had disallowed the claim of the appellants by the order impugned before the High Court the order did not amount to any decree and, therefore, the question of payment of ad valorem court fees did not arise. In this connection it was also submitted that the Act being a beneficial statute was designed to provide a cheap and expeditious remedy to displaced persons in certain circumstances and therefore the Parliament never intended that displaced persons who had lost all that they possessed in Pakistan should be made to pay ad valorem court fees without possessing the capacity to do so. Mr. Dikshit appearing for the respondents sought to repel the arguments of Mr. Goyal on two grounds. In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re opened by this Court even in special leave. Secondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court. In these circumstances it was contended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under section 40 of the Act. Therefore, it was said, Sch. II article 11 had absolutely no application and the view taken by the Taxing Judge was legally correct. In order to understand the contentions raised by the counsel for the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed. To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming independent had to face the colossal problem of rehabilitating the refugees or the displaced persons. Most of these persons had left huge assets behind in Pakistan and had come to this country without a penny. Others were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country. Soon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country. In these circumstances, therefore, the Government decided to bring out a uniform legislation so as to be a complete code in itself providing for a cheap and expeditious remedy for displaced debtors and creditors. The matter was first entrusted to a Committee and then to Bind Basni Prasad, a retired Judge of the Allahabad High Court, who after taking evidence of a large number of displaced persons and examining the nature of the claims, submitted a report which formed the basis of the Displaced Persons (Debts Adjustment Act. Introducing the Bill which preceded the Act, Mr. A. P. Jain, the then Minister of State for Rehabilitation, made a long speech in 668 Parliament dwelling on the various aspects of the Bill. The Minister particularly highighted the fact that the condition of the displaced persons was pitable as they had left huge assets behind in Pakistan. In this connection the Minister observed thus: "The condition of the displaced persons therefore today is that while their assets have been left behind in Pakistan and they have brought the titles of their property, at least in some cases. In the provisions contained in this Bill, we have tried to strike a balance between the reduced capacity of the debtor to meet his obligations and at the same time we have taken sufficient care to see that a debtor who is in a position to pay may not deny payment to his creditor. In this Bill, we have introduced what might be called a somewhat revolutionary principle, namely, that no debtor will be called upon to pay more than his paying capacity. I shall later on define what the words 'paying capacity ' mean, but here it may be enough to mention that paying capacity of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not be capable of attachment. Clause 13 deals with claims by displaced creditors against persons who are not displaced debtors. That is not comparatively so important because it only gives relief in respect of court fees. We felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of money which they have to pay as court fees etc. I submit that these are all very necessary and humane considerations which take into account the actual paying capacity of the debtor. We have maintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a lot of money. We have provided only one appeal in clause 40. " A perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve. It will be noticed that the Minister laid particular stress on the paying capacity of the debtors which he called a humane consideration and also described the necessity of giving relief to the displaced persons against the huge amount of money which they may have to pay as court fees. Thus it would appear that the intention of Parliament was to bring out a legislation which would provide for a cheep and expeditious remedy to the displaced persons and entrust the work to a Tribunal which may 669 be able to decide the claims quickly instead of leaving the displaced debtors or creditors to follow the dilatory and cumbersome process of the civil courts. In order to shorten the litigation the Minister expressly stated that only one appeal had been provided in section 40 of the Act, to the High Court. These matters will have a very important bearing on the interpretation of the provisions of the Court Fees Act as applicable to the decrees passed by a Tribunal under the Act. Even apart from these considerations, it is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant. Thus where an adjudication given by a Tribunal could fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the Court would apply that provision which was beneficial to the litigant. In A. V. Fernandez vs State of Kerala, while interpreting the provisions of a fiscal statute, viz., the Travancore Cochin General Sales Tax Act, this Court observed as follows: "It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Reve nue satisfs the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter." Similarly in State of Maharashtra vs Mishri Lal Tara Chand Lodha and others, while interpreting some of the provisions of the Bombay Court Fees Act, Raghubar Dayal, J., speaking for the Court observed as follow: "The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject litigant. " These observations manifestly show that the Courts have to interpret the provisions of a fiscal statute strictly so as to give benefit of doubt to the litigant. The principles deducible from the decisions referred to above are well established and admit of no doubt. We, therefore, propose to decide the question raised before us in the light of the principles enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the Act in order to find out the real nature, scope and ambit of the statute. 670 To begin with, it may be necessary to extract the relevant portion of the statement of objets and reasons of the statute: "The Bill is designed mainly to give relief to displaced debtors in respect of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors. A certain amount of relief was afforded to them by Acts XLVII of 1948 and XXV of 1949, but this was found to be inadequate. A thorough examination of the various problems involved had to be made with a view to affording displaced persons adequate and, at the same time, reasonable relief in the matter of their indebtedness, consistently with the needs of their rehabilitation. A decree under the law will thus consist of two parts, the first part being equivalent to and recoverable from the 'paying capacity ' of the debtor, and the second part being equivalent to the balance of the total amount decreed and recoverable from the compensation, if and when received by the debtor. The first part of the decree will, as a rule, be recoverable in instalments. In respect of the second part of the decree, it has been accepted that the amount payable should be scaled down in the proportion in which the displaced debtor is able to obtain recompense in respect of his immovable property left behind in West Pakistan. Where no recompense is received, there will be no recovery of the second part of the decree. " Section 4 of the Act provides for constitution of Tribunals to exercise jurisdiction under the Act and empowers the State Government to designate any civil court or class of civil courts as the Tribunal or Tribunals and may also define the areas in which such Tribunal shall exercise jurisdiction. It may be pertinent to note here that the statute deliberately does not entrust the functions of the Act to the civil court per se but to a Tribunal to be selected from amongst civil courts. Section 5 of the Act provides for an application to be given by a displaced debtor for adjustment of his debts and gives the requirements of that application. Section 6 authorises the Tribunal to reject the application under section 5, if it does not fulfil the requirements of section 5 and further gives it the power to grant time to comply with the requirements. Sections 7 and 8 of the Act provide for issue of notices to the respondents and give right to the respondents to file their objections. Section 9 provides for an inquiry into the application made under section 5. The statute designedly uses the word "proceeding" in section 9 rather than a suit which clearly shows that the Legislature was aware of the distinction between a "proceeding" and a "suit". Sub section (2) of section 9 authorises the Tribunal to decide the dispute and pass such decree in relation thereto as it thinks fit. It is, therefore, clear that the decree which the Tribunal passes is not a decree of the Civil Court but a decree passed by a Tribunal in a proceeding under section 5 and section 9 of the Act. Section 10 deals with claims by the creditors against 671 displaced debtors and section 11 regulates the procedure of a petition filed by the creditor. Sub section (2) of section 11 further authorises the Tribunal to determine the claim and pass a decree in relation thereto. Section 12 provides for objection by creditor to schedule of assets and section 13 refers to claims by displaced creditors against persons who are not displaced debtors. Section 14 prescribes the procedure for displaced creditor 's petition filed under section 13 of the Act and authorises the Tribunal to pass a decree as it thinks fit. Sub section (3) of section 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists. A perusal of sub sections (2) & (3) of section 14 clearly shows that the statute contemplates a decree which may be one of rejection of the claim put forward by the displaced creditor or one which amounts to allowing the claim. Thus, in other words, whether claim is disallowed or allowed, the order passed by the Tribunal would be a decree in both cases. We have purposely mentioned this fact because some of the High Courts have taken the view that where the Tribunal rejects the claim of a displaced creditor or debtor either on the ground that the petitioner is not a displaced debtor or creditor but not on merits, such an adjudication does not amount to a decree. This distinction sought to be made by some of the courts does not appear to be consistent with the scheme and language of the statute. Section 15 of the Act deals with the consequences of application by displaced debtor. The next relevant provision is section 18 which regulates the procedure for claims against insurance companies, and sub section (2) of this section provides for a decree to be passed by a Tribunal. Section 23 provides for a simplified procedure in certain cases where the claim is below Rs. 5,000/ in which case the Tribunal is empowered to record only a memorandum of the substance of the deposition of the witnesses so as to given a short and summary decision. Section 27 refers to the contents of the decree and section 28 provides for the forum and the Court in which the decree passed by the Tribunal is to be executed. Section 32 of the Act provides the procedure for scaling down of debts by a displaced debtor. Section 36 provides for extension of period of limitation. Section 40 is the provision for appeals against any decree or final order of the Tribunal or against any order passed in the course of execution. These are the relevant provisions of the Act in so far as the facts of the present case are concerned. A close examination and a detailed analysis of the various provisions of the Act would clearly reveal that the Act is a beneficial statute meant for advancing the cause of the displaced debtors and creditors by conferring substantial benefits on them if they are able to prove their claims. In these circumstances it is clear to us that the Legislature could never have intended that the claimants should have to pay heavy court fees either in getting, their claims adjudicated by the Tribunal or even in filing appeals against the decrees of the Tribunals. That the displaced persons had been given such concessions and facilities has been held by this Court in Shri Ram Narain vs The Simla Banking & Industrial Company Ltd. where this Court observed as follows: "Now, the is one of the statutory measures meant for relief and rehabil 672 tation of displaced persons. It is meant for a temporary situation brought about by unprecedented circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose. It is by and large a measure for the rehabilitation of displaced debtors. x x x There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal he is satisfied with the reliefs which an ordinary civil court can give him in the normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal 's jurisdiction comes into operation. x x x It is also desirable to notice that so far as a claim of a displaced creditor against a non displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e. without having to incur the necessary expenses by way of court fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has jurisdiction over the place where he resides, i.e., a place more convenient to him than if he had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises. There may also be a few other minor facilities. " As pointed out above, the claim of the appellants in the present case before us was dismissed by the Tribunal on merits and the stand taken by the Revenue which found favour with the Taxing Judge of the High Court was that the appellants should pay ad valorem court fees as their claim was rejected on merits. Counsel for the appellants has submitted that the present appeal would be governed clearly by Sch. II article 11 of the Court Fees Act, This Article reads thus: "11. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented. (a) x x x (b) to a High Court or Chief Commissioner, or other Chief Controlling Executive or Revenue Authority. Two rupees" In order to attract application of this article, the following conditions must be fulfilled: 673 (i) that the document sought to be stamped must be a memorandum of appeal; (ii) that the appeal should be presented to the High Court; and (iii)that the appeal should not be from a decree or an order having the force of a decree. The third condition of the article is couched in a negative form thus implying that this provision would have no application to appeals against decrees. The question that falls for determination is as to whether or not the decision given by the Tribunal under the Act could be said to be a decree within the meaning of Sch. II article 11 of the Court Fees Act. It was submitted by learned counsel for the appellants that the Court Fees Act and the Code of Civil Procedure being statutes complementary to each other should be read as one harmonious whole. We think that the contention is well founded and must prevail. The term "decree" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure. It may be pertinent to note here that neither the Court Fees Act nor the has defined the term "decree". Nevertheless" as far back as 1859, by Act No. VIII of 1859 passed by the Governor General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act. By sections 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned. Section 189 which expressly dealt with decrees ran thus: "The decree shall bear date, the day on which the judgment was passed. It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit. It shall also state the amount of costs incurred in the suit and by what parties and in what proportions they are to be paid, and shall be signed by the Judge, and sealed with seal the Court. " Thus when the Court Fees Act was passed in the year 1870 and used the term "decree" it must be intended to have used the word "decree" so as to bear the same connotation as the word "decree" as explained in section 189 of Act VIII of 1859. In the Code of Civil Procedure Act XIV of 1882 "decree" appears to have been defined for the first time and the definition may be extracted as follows. " 'decree ' means the formal expression of an adjudication upon any right claimed, or defence set up in Civil Court when such adjudication so far as regards the Court expressing it, decides the suit or, appeal. An order rejecting a plaint, or directing accounts to be taken, or determining any question 674 mentioned or referred to in section 244, but not specified in section 588, is within this definition: an order specified in section 588 is not within this definition:" The Code of Civil Procedure of 1908 also gave a full and complete definition of "decree" in section 2(2) which runs thus: " 'decree ' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. " It would be seen that an order rejecting a plaint was clearly mentioned as falling under the term "decree". In view of this clear definition of the order rejecting a plaint, it became necessary to make a corresponding change in Sch. II article 11 of the Court Fees Act and by Act V of 1908 the words "from an order rejecting a plaint or" used in Sch. II article 11 before 1908 were expressly omitted for the simple reason that an order rejecting a plaint having been incorporated in the definition of a "decree" it was not necessary to retain it in the Court Fees Act. This is the most important intrinsic evidence to show that the Legislature in enacting the Court Fees Act used the term "decree" in the same sense as it was used in section 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day. This also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other. This matter was the subject matter of a decision of this Court in Mannan Lal vs Mst. Chhotaka Bibi, where this Court observed as follows: "In our view in considering the question as to the maintainability of an appeal when the court fee paid was insufficient to start with but the deficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other. Apart from the decisions bearing on the point, there can in our opinion, be no doubt that Section 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it. " 675 There are a number of other decisions of the High Courts which have also taken the view that the word "decree" appearing in Sch. II article 11 has to be read in the same sense as used in the Code of Civil Procedure. In Ram Prasad vs Tirloki Nath a Division Bench of the Allahabad High Court observed as follows "The word 'decree ' has not been defined in the Courtfees Act or in the General Clauses Act; and it is safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil P.C., under which all the decrees are passed and which defines it as meaning "the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. " A Full Bench of the Hyderabad High Court in Dawood Karim Ashrafi vs City Improvement Board made a similar observation where the Court observed as follows: "To have the force of a decree, an order must possess all the characteristics of a decree. It was further held that the word "decree" has not been defined in the Court fees Act or in the General Clauses Act, and it was safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil Procedure Code. " A Division Bench of the Patna High Court also in Antala Gope vs Sarbo Gopain, while interpreting the word 'decree ' used in the Hindu Marriage Act, appears to have taken the same view and observed as follows: "The Act provides under section 21 that "all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908"; that is to say, the procedure to be adopted by the Court, in dealing with such proceedings will be akin to that provided for the trial of suits in a Civil Court. But that does not make the proceeding a suit or the application a plaint. x x x x x x x x Therefore, in our view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the . " The later Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas vs Mrs. M. F. Cusoros & others appears to have endorsed its previous view and observed as follows: 676 "The same result would, however, follow from a perusal of the various provisions of the Code of Civil Procedure of 1859, as it stood in the year 1870. The above provision of law, therefore, indicates that under the Code of Civil Procedure, 1859, a decree could only be passed in a proceeding which could be termed a suit. Section 26 specified the particulars that are to be given in the plaint. Section 27 laid down the manner in which the plaint was to be subscribed and verified. Thus the scheme of the Code of Civil Procedure of 1859 as disclosed by the aforementioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint. Proceedings for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint. On the other hand, as section 278 of the said Act shows, they are commenced by an "application" or a petition. For the above reasons we are of opinion that the decision of a Court in proceedings for letters of administration cannot be described as a decree. If excitability was to be the invariable quality of all decrees, one would expect that the Legislature would incorporate this feature in the provisions which define the nature, scope and contents of a decree. Further, if the Legislature wanted that Schedule II Article 11 should apply only to executable orders it could very easily have added the word "executable before "order". " In the above case the order passed in a proceeding before a Probate Court was held not to be a decree. In Dundappa vs section G. Motor Transport Company the High Court of Mysore observed as follows: "In order to understand the expression "having the force of a decree" occurring in this article of the Court Fees Act, it would be useful to derive guidance from the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree is a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy before the Court. " In Irshad Husain vs Bakhshish Husain the same view was taken by the Oudh High Court where the Court observed as follows: "The expression "decree" is not defined either in the Court Fees Act or in the General Clauses Act. It may, 677 therefore, be safely assumed that this expression as used in Sch. 2, article 11, Court Fees Act, bears the meaning given to it by section 2(2) Civil P.C. Nor can it be disputed that there is a vital difference between a "decree" and "order" in matters relating to appeals. " In Harrish Chandra Chatterji vs Bhoba Tarini Debi the Calcutta High Court also appears to have taken the same view, where the Court observed as follows: "I do not think this was the "formal expression of an adjudication" so as to make the order a decree within the meaning of sec. 2 of the Code of Civil Procedure. The fee payable, therefore, will be one leviable under article 11 of the second schedule of the Court fees Act." The Bombay High Court in Taxing officer, High Court, Appellate side vs Jamnadas Dharamdas which was a case under the , has clearly held that the term "decree" used in Sch. II article 11 of the Court Fees Act must be held to Lave the same meaning as in section 2(2) of the Code of Civil Procedure. Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows: Firstly, that under the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary: (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii)that the adjudication must be formal and final and must be given by a civil or revenue court. In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court. Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting. Thirdly, the Legislature has itself made a clear cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit. In these circumstances, therefore, none of the requirements of a degree are to be found in the decision given by the Tribunal even though the Legislature may have described the decision as a decree A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of 678 The Court Fees Act. The term "decree" appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a "decree". Secondly, as pointed out, the object of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy. The argument of Mr. Sanghi for the respondent. , the he Legislature wanted the claimants to pay heavy court fees if they lost before the Tribunal is totally inconsistent with the aim and object of the Act. If the displaced claimants were given the right to have their claims determined on a nominal court fee and if only one right of appeal was provided it surpa, ses one 's comprehension why the Legislature should have. intended that even if wrong orders were passed by the Tribunal, the claimants should have to pay heavy court fees if they wanted to file an appeal to the High Court. If the intention of the Legislature was to provide a cheap and not expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage. Having regard to these circumstances we are satisfied that the term "decree" used in Sch. II, article 11, is referable to a decree as defined in section 2 (2) of the Code of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch. II, article 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch. II article 11 of the Court Fees Act and ad valorem court fees under Sch. I article 1 are not leviale. Apart from the above considerations, it is a well settled principle interpretation of statute, hat where the Legislature uses an expression bearin a well known legal contation it must be premised to have used the said expression in the sense in which it has been so understood. Craies on "Statute Law" observes as follows: "There is a well known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears. " In Barras vs Aberdeen Steam Trawling and Fishing Company Lord Buckmaster pointed out as follows: "It has long been a well establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it." 679 Craies further points out that the rule as to world judicially interpreted applies also to words with well known legal meanings, even though they have not been the subject of judicial interpretation. Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word "decree" which had a well known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point. There are a number of decisions which have taken the view that Sch. II article 11 governs appeals against decisions of the Tribunal. The matter was fully considered in a decision of the Bombay High Court in Jamnaudas Dharamdas ' case (supra) where Shah, J., observed as follos: "But the expression "decree" has not been defined in the Court fees Act. The expression "decree" as used in the Court fees Act.,ppears to have the same connotation as that expression has in the Code of Civil Procedure. The Court fees Act is intended to be a complementary piece of legisiation to the Code of Civil Procedure dealing with payment of court fees in matters which are tried by the civil Courts. If the expression "decree" has the same connotation as that expression has in the Code of Civil Procedure, it would be difficult to regard an adjudication made by a Tribunal appointed under the as a decree within the meaning of the Court fees Act, even though it is so called under the . In order that an adjudication should amount to a decree under the Code of Civil Procedure, it must be a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. The proceedings to be initiated by displaced persons for adjustment of their debts or by displaced creditors or displaces, debtors are by applications. Such applications cannot be regarded as plaints in civil suits and are not required by law to bear ad valorem court fee under schedule 1, cl. 1 of the Court fees Act. It is true that the provisions of the Code of Civil Procedure are made applicable to the proceedings which are commenced by applications. But the proceedings under the Act cannot be called suits. Again the Tribunal in dealing with an application under section 6 of the is not merely deciding a claim made by a debtor, but is dealing with an application for adjustment of his debts. x x x x Even if the Legislature has chosen to call such an award a decree, it cannot amount to a decree within the meaning of sub section (2) of section of the Code of Civil Procedure and in my judgment the award cannot be regarded as a decree within the meaning of Schedule II cl. 11, of the Court fees Act. " 680 We find ourselves in complete agreement with the aforesaid observations made by Shah, J. In Parmanand Lokumal and other vs Khudabadi Bhaibund Cooperative Credit Bank Ltd. and Others, while construing an almost identical question, the Calcutta High Court observed as follows: "It is to afford relief to displaced persons and that purpose may well be frustrated, if, in cases of preliminary dismissals of the applications the appeals are to be filed with ad valorem court fee on the disputed amount, even assuming that it is capable of ascertainment at the particular stage. Beaning that in mind and having regard to the scheme and structure of the Act and the nature of the impugned decree, namely, of dismissal on the preliminary finding of the failure of the appellants to prove the necessary status, and, the propriety of that finding being the sole question for consideration in the appeal, so far as the appellant are concerned, we do not think that it would be improper to hold that the subject matter in dispute in the appeal is that question of status which plainly is incapable of money value. The appeal thus would come under Schedule II, article 17, of the Court fees Act, provided, of course, the memorandum of appeal is in a 'suit ' as contemplated in the opening paragraph of the Article. x x x Even if the subject matter in dispute in the appeal be held to be the relief of reliefs, claimed by the appellants in their original application, the decree, impugned being one of dismissal of the same, we do not think that any other view on the question of its valuation should be taken." The Calcutta High Court appears to have made a distinction between a decree passed by a Tribunal dismissing the claim of a petitioner on a preliminary ground that the claimant was not able to prove his status and therefore had no locus standi to file the claim and a case where the claim was dismissed or decreed on merits. According to the High Court, in the former case a decision given by the Tribunal would be only an order, whereas in the latter case it would be a decree. We, however, do not agree with this part of the observation because as pointed out by us the statute makes no distinction at all between the decision of the Tribunal which rejects the claim either on a preliminary point or on merits and one which allows the claim. Both these kinds of decisions have been termed as decree passed by the Tribunal. In these circumstances, therefore, there does not appear to be any warrant for the distinction which seems to have been drawn by the High Court between a decree passed by a Tribunal on a preliminary point or that passed on merits. Even otherwise, according to the general scheme of the Code of Civil Procedure whether the suit culminates in the rejection of the claim of the plaintiff, and thereby in dismissal of the suit or in acceptance of the claim of the plaintiff, where the suit is decreed the final adjudication given by the Court is a decree whether it is one dismissing the claim or one allowing it. 681 The distinction between a decree which is one of dismissal of the suit or a decree which amounts to an acceptance of the claim of the plaint is too artificial to merit any consideration. While, therefore, we do not agree with some of the observations of the Calcutta High Court, we fully agree with the other part of observations where the Calcutta High Court has held that ad valorem court fees are not payable. Similarly, in Punjab National Bank Ltd. vs Firm Isardas Kaluram, a Full Bench of the Rajasthan High Court observed x x x x x x "We are therefore of opinion that the order passed in this case, though it finally determined the application of the appellant, was not a decree, because it did not a determine the claim which, in the circumstances in which that word has been used in section 11(2) must relate to the existence or the amount of the debt due to the creditor. The creditor, therefore, if he has a right of appeal, has to pay court fee under Sch. article 11 which mentions appeals which are not preferred from a decree or an order D. having the force of a decree. Here the order, though it finally determined the application under section 10, was not a decree; nor did it have the force of a decree for it is not strictly in accordance with the terms of section 11(2). x x x x x x We feel that this Act is an ameliorative measure for the benefit of displaced persons. It should be strictly interpreted, and only those orders should be considered decrees, which come strictly within the terms of section 9, 11(2) and 14(2). Where however the order does not come strictly within the terms of those provisions, it should not be tracted as a decree, but only as an order determining the application. " Here also a distinction was sought to be drawn between a dismissal of the application on the ground that the claimant was not a displaced person and a decision which decreed the claim on merits. Barring this disinction made by the High Court, which we do not approve, we are in agreement with the other observations made by the Full Bench which are to the effect that the order passed by the Tribunal not being a decree clearly falls within the ambit of Sch. II, article 11, of the Court Fees Act. In a later decision of the same High Court in The Punjab National Bank Ltd. vs The American Insurance Company Ltd. the Court observed as follows: 682 "On an analysis of section 18(2), it cannot be said that the order under appeal passed by the learned Civil Judge is a decree or order having the force of a decree. The appellant was, therefore, not liable to pay ad valorem court fee as required under Schedule I, article 1, of the Court Fees Act. The tribunal is competent to pass a decree only after submitting a report to the Insurance Claims Board and after receiving their proposal. If this is not done and the application is rejected on the ground that the loss did not take place in the circumstances specified in section 18(1) that order cannot be said to be a decree. The reasoning of the Full Bench case with regard to sec. 11(2) is applicable to the present case which is under sec. " The Punjab High Court in section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. appears to have taken the same view and observed as follows: "Having regard to the general purpose of the Act, which is almost entirely intended to benefit displaced persons and relieve them from the hardships consequent on their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15 8 1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August. x x x x x . My own view is that it was certainly never anybody 's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem ' court fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under section 5 or section 10 or 13, is merely a final order which does not necessitate the drawing up of any decree sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all. " We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above. Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas vs Parasram; Nabh Raj Notan Das vs Sidhu Ram Mool Chand and Sita Ram vs Mool Chand. These decisions have on doubt held that decision of the Tribunal under the 683 Act amounts to a decree and, therefore, does not fall within the ambit of Sch. II article 11 and ad valorem court fee is payable under the Court Fees Act. We are, however, unable to agree with the view taken by these Courts. In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding. These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute. For these reasons, therefore, that the court fee of Rs. 5/ paid by the appellants on the cannot be held to be good law and must, therefore, be over ruled. On a consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch. II, article 11, and the view of the Taxing Judge that ad valorem court fee was payable under Sch. I, article 1, of the Court Fees Act was legally erroneous. We hold, therefore, that the court fee of Rs. 5/ paid by the appellants on the memorandum of appeal was sufficient. Before concluding we must notice an argument advanced by the learned counsel for the respondents. It was submitted that under section 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court. It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable. We are, however, unable to agree with this contention. Even though an order of the Taxing Judge may be final under section 5 of the Court Fees Act, the power of this Court under article 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament. The finality which may attach under section 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court. Reliance, however, seems to have been placed on a decision of this Court in section Rm. section Sp. Satheppa Chettiar vs section Rm. Ramanathan Chattiar and particularly on the following observations made by this Court: "In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under section 7(iv) (b) of the Act is final under the provisions of section 5 of this Act. That is why we have not allowed the merits of this order to be questioned in the present appeal. We must, therefore, deal with the appellant 's contention on the basis that the court fees on his memorandum of appeal must be levied under section 7(iv) (b) of the Act. " These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems 684 to us that this Court was not at all called upon to decide the question of the effect of section 5 of the Court Fees Act as overriding the provision of article 136 of the Constitution. The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consider this point, thus: "We are, however, not called upon to consider the point as to whether section 7 (v) would apply to the present suit or whether the present suit would fall under section 7(iv) (b). " Further more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court fees and confined his arguments only to the question as to whether the court fees should be levied under section 7(iv) (b) of the Court Fees Act. In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents. For these reasons the contention raised by the respondents on this score must be overruled. The result is that the appeal is allowed, the order of the Taxing Judge directing payment of the ad valorem court fees is set aside and the High Court is directed to hear and dispose of the appeal in accordance with the law on the court fee already paid by the appellants which, in our opinion, is sufficient. In the peculiar circumstances of this case and in view of somewhat uncertain position of the state of law, we make no order as to costs. P.B.R. Appeal allowed.

Section 20(3) of the Bengal Finance (Sales Tax) Act, 1941 provides that the Commissioner, Upon application or of his own motion, may revise why assessment made or order passed under the Act or the Rules thereunder by a person appointed under section 3 to assist him and the Board of revenue may, in like manner, revise any order passed by the Commissioner. At the time of assessment of the appellant 's sales tax return the Commercial Tax officer enhanced the gross turnover and charged the enhanced amount to tax and in addition imposed a penalty. On appeal under section 20(1) of the Act, the Assistant Commissioner reduced the enhancement of gross turnover is as well as the penalty. The appellant filed a revision application before the Commissioner of Commercial Taxes. Before the filing of revision application, under orders of the Additional Commissioner an enquiry was conducted by a Commercial Tax officer who detected numerous discrepancies of a serious nature in the accounts. On the basis of this report, the Additional Commissioner enhanced the assessment by a huge sum and charged the entire enhanced amount to tax. On further revision to the Board of Revenue, the appellant contended that while exercising his power of revision under section 20(3) of the Act, the Commissioner had to confine himself to an examination of the mate rial before the assessing officer and could not take additional facts into consideration which plea was rejected by the Board. The High Court held that (1) under section 20(3) the Additional Commissioner as competent to reassess the gross turnover by taking into consideration additional material which had not been made available to the assessing officer and (ii) the Additional Commissioner was vested with authority under. section 20(3) read with r. 80A to rely on the report under section 14(1) initiated long before the filing of the revision petition. Dismissing the appeal, ^ HELD: The Commissioner or Additional Commissioner can. in exercise of his revisional power, re assess the turnover and while doing so, rope in the escaped items of turnover and thereby enhance the gross turnover [116G] (1) The word "Revise", the dictionary meaning of which is 'to re examine, to review, to correct or to amend the fault", is not hedged or. qualified by any condition or limitation. The controlling expressions like "for the purpose of satisfying himself as to the legality or propriety of the order passed ed" or "regularity of flue proceedings" which are susceptible of being construed as restricting the revisional power to rectification of an illegality or impropriety of the order or of ' irregularity in the proceeding are also not be found therein There is also nothing in the Bengal Sales Tax Rules. 1941 to cir circumscribe or limit the power. It is not, therefore, unreasonable to infer that the amplitude of the power conferred on the Commissioner or the Additional Commissioner is more extensive than the power exercisable by the High Court under section 115 of the Code of Civil Procedure. It can be eerily equated with the power exercisable be the appellate authority in an appeal under sub. 2 of section 20 of the Act. [115F H] 111 Indira Sohanlal vs Custodian of Evacuee Property Delhi and Others ; East Asiatic Co. (India) Ltd. vs The State of Madras 7 S.T.C. 299, State of Kerala vs K. M. Cheria Abdulla & Co. [1965] 16 S.T.C. 875, Swastik. Oil Mills Ltd. vs H. B. Munshi Deputy Commissioner of Sales Tax. Bombay ; , State of Madras vs The Madura Knitting Co Ltd. (1959) 10 S.T.C. 155, referred to. Deputy Commissioner of Agricultural Income Tax and Sales Tax , Quilon and Anr. vs Chanalakshmi Vilas Cashe w Co. (1969) 24 S.T.C. 491, The State of Kerala vs M. Appukutty (1963) 14 S.T.C. 242 and Commissioner. (of income. tax, Bombay vs Shapoorji Pallonji Mistry (1962) 44 I.T.R. 891, distinguished. (2) on a combined reading of section 20(3) and rule 80A of the Rules it is immaterial whether the Commissioner proceeds to make the enquiry before or after tho filing of a revision petition so long he affords to the person likely to be adversely affected by his action an opportunity of being hearer [119 H] In the instant case, the Commercial Tax officer called upon to make on enquiry, gave adequate opportunity to the appellant to explain the discrepancies And the suspicious circumstances, relating to the alleged suppression bn of the turnover and the Additional Commissioner gave notice to the former and furnished him with a full copy of the report. It cannot be said that the Commercial Tax officer and Additional Commissioner committed any illegality or breach of any statutory provision or rule or transgressed the limits of their jurisdiction. 1120 A C

Civil Appeal No. 2637 of 1977 From the Judgment and order dated 9.11.1976 of the Madhya Pradesh High Court in Second Appeal No. 223 of 1976. Rameshwar Nath for the Appellants. Y.K. Jain for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal by special leave arising from the Judgment and order of the High Court of Madhya Pradesh at Jabalpur dated 26th October, 1977. The landlord appellant filed the eviction suit against the tenant, the predecessor in interest of the respondents. The appellant runs a girls ' school, being covered by one of its objects. It needed additional accommodation for the said purpose. The building was also in dilapidated condition. The learned trial Judge as well as Appellate Court ordered eviction under section 12 (f) of the Madhya Pradesh Accommodation Control Act, 1961. The respondents were in occupation of an old shed as a tenant in the said house. Section 12 (f). Of the aforesaid Act gives the landlord the right to evict on the grounds, inter alia, as follows: 516 "that the accommodation let for non residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that any of his major sons or unmarried daughters if he is the owner thereof or of any person for whose benefit the accommodation is held and 13 that the landlord or such person has no other reasonably suitable non residential accommodation of his own in his occupation in the city or town concerned." Section 12 (g) deals with the situation where the building has become unsafe or unfit and the landlord wants the premises for carrying out repairs. Section 12 (h) on the other hand deals with the case where the accommodation is required bonafide by the landlord for the purpose of building or re building or making thereto any substantial additions or alterations and such additions or alterations cannot be carried out without the accommodation in the occupation of tenant being vacated. Similar provision in section 31 (1)(g) under the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 came up for consideration before this Court in Ramniklal Pitambardas Mehta vs Inderadaman Amratlal Sheth, [1964] 8 SCR p.1. This Court held that the case in question fell under clause (g) which is similar to clause (f) of the instant case before us of Madhya Pradesh Accommodation Control Act, section 12 (f). This Court further held that the mere fact that the landlord intended to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, would not affect the question of his requiring the house bonafide and reasonably for his occupation, when he had proved his need for occupying the house. Nothing further need be proved. In this case, the case of the landlord appellant is clearly covered by section 12(1)(f). The fact that the building had to be reconstructed for the said purpose is irrelevant. The learned trial judge as well as the learned appellate court read the sanctioned plan and came to the conclusion that the appellant had proved in this case all the need for expansion of the building for girls ' education which was one of the objects of the appellant society. The High Court, in our opinion, misread the sanctioned plan which is Ext. 4, which according to the High Court showed in front side of the building abutting the road, a series of shops are to be constructed. The High Court was of the view that these shops were meant to be let out to tenants. We are of the opinion that this was a misreading of the plan. These shops were not indicated as shops to be reconstructed, but as existing building was to be reconstructed for the purpose of school there was no intention of construc 517 tion of shops and let these out. There was no intention of the landlord appellant to build for the purpose of letting it out. The learned trial judge as well as appellate judge held that the object was to get the building back for expansion of the activities of the appellant society. The High Court, therefore, in our opinion fell into error in misconstruing the plan and in holding that the landlord 's claim for eviction was on the ground of reconstruction. In that view of the matter the High Court went on the examine whether section 12 (h) of the said Act had been complied with. There was no such necessity, in view of the facts as found by the two courts below. In any case, in second appeal the High Court should not have interfered with such a question of fact. This was unwarranted under the facts and circumstances of the case and on the evidence on record and in view of the decision in Ramniklal 's case (supra). Mr. Jain appearing for the tenant sought to urge before us that the plan indicated that the shops were intended to be reconstructed in the new plan Shri Rameshwar Nath, Counsel for the appellant assured us that it was the intention of the society to reconstruct the building for the purpose of running the school. In order to avoid any apprehension, though we allow the appeal and restore the order of the learned appellate court as well as learned trial court, we make it clear that in case if any part of the building is used for shops or let out as shops, the first option should be given to the respondents. We further direct that the building must be constructed on the basis of the plan sanctioned and as appended in the records of this case. In view of the fact that the respondents were carrying on business for quite long time, they should have some time to vacate. We direct that the respondents should vacate the premises in their occupation by 31st December, 1986 and handover the same to the appellant to enable the appellant to proceed with construction. The respondent will file an undertaking on usual terms within a month from today. The order of the High Court is set aside. The orders of the learned Addl. District Judge and the trial court are restored subject to the modifications indicated above. We further direct that after obtaining the possession of the premises from the respondents, the appellant should proceed to construct as quickly as possible. In the facts and circumstances of the case the parties will pay and bear their own costs. A.P.J. Appeal allowed.

The appellants are a partnership firm carrying on business as dealers in shrimps, prawns and lobsters and other sea food products. They are registered as a dealer both under the Karnataka Sales Tax Act, 1957 and the . The appellants in the course of their business purchase shrimps, prawns and lobsters locally for the purpose of complying with orders for export and they cut the heads and tails of the shrimps prawns and lobsters purchased by them, peel, devein and clean them and after freezing and packing them in cartons, they export them to foreign buyers outside India under prior contracts of sale. The appellants filed their statement of monthly turnover for the month of April 1982 before the Assistant Commissioner of Commercial Taxes, Mangalore and claimed total exemption from tax in respect of the purchase turn over of shirmps, prawns and lobsters under the Karnataka Sales Tax Act, 1957. The Assistant Commissioner of Commercial Taxes rejected the said claim by his two assessment orders and issued two notices of demand for Rs.52,610.71 and Rs.44,237.88 respectively against the appellants. The appellants, thereupon, filed a writ petition in the High Court of Karnataka challenging all the said orders and notices of demand and sought appropriate direction, order or writ restraining the respondents from imposing or collecting purchase tax on purchase turn over of shrimps, prawns and lobsters under the Karnataka Sales Tax Act, 1957. The writ petition was dismissed by the High Court, but having regard to the importance of the question 368 involved a certificate under Article 133 of the Constitution was granted by the High Court. Allowing the appeal, the Court ^ HELD: 1.1. In order to attract the applicability of sub section (3) of section 5 of the , it is necessary that the goods which are purchased by an assessee for the purpose of com plying with the agreement or order for or in relation to export, must be the same goods which are exported out of the territory of India. The words "those goods" in sub section (3) are clearly referable to "any goods" mentioned in the preceding part of the sub section and, therefore, the goods purchased by the assessee and the goods exported by him must be the same. If by reason of any processing to which the goods may be subjected after purchase, they change their identity so that commercially they can no longer be regarded as the original goods, but instead become a new and different kind of goods and then they are exported, the purchases of original goods made by the assessee cannot be said to be purchases in the course of export. 1.2 The test which has to be applied for the purpose of determining whether a commodity subjected to processing retains its original character and identity is as to whether the processed commodity is regarded in the trade by those who deal in it as distinct in identity from the original commodity or it is regarded, commercially and in the trade, the same as the original commodity. It is not every processing that brings about change in the character and identity of a commodity. The nature and extent of processing may vary from one case to another and indeed there may be several stages of processing and perhaps different kinds of processing at each stage. With each process suffered, the original commodity experiences change. But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct commodity that it can be said that a new commodity, distinct from the original. has come into being. Sales Tax Board vs PIO Food Packers ; applied. 1.3 The shrimps, prawns and lobsters purchased by the appellants did not lose their original character and identity when they were subjected to processing for the purpose of export. so far as commercial parlance or popular usage is concerned, they remained the same goods. 369 The dealer and the consumer regarded both as shrimps, prawns and lobsters. The only difference is that processed shrimps, prawns and lobsters are ready for the table while raw shrimps, prawns and lobsters are not but still both are in commercial parlance, shrimps, prawns and lobsters. The fact that they undergo a certain degree of processing or frozen for the purpose of preservation and transfer to other places including far off countries in the world makes no difference in character or identity as the original shrimps, prawns and lobsters. Hence, the purchases of raw shrimps, prawns and lobsters by the appellants must be held to be purchases in the course of export and hence exempt from liability to tax under the Karnataka Sales Tax Act, 1957 as amended. [377A B] East Taxes Motor Freight Lines vs Frozen Food Express (100) L.Ed. 917 quoted with approval. 1.4 Entry 13a of the Third Schedule to the Karnataka Act also makes it clear that even processed or frozen shrimps, prawns and lobsters are known commercially and in the trade as shrimps, prawns and lobsters. When the State Legislature excluded processed or frozen shrimps, prawns and lobsters from the ambit and coverage of Entry 13a, its object obviously was that the last purchases of processed or frozen shrimps, prawns and lobsters in the State should not be exigible to State Sales Tax under Entry 13a. The State Legislature was not at all concerned with the question as to whether processed or frozen shrimps, prawns and lobsters are commercially the same commodity as raw shrimps, prawns and lobsters or are a different commodity. Merely because the State Legislature made a distinction between the two for the purpose of determining exigibility to State Sales Tax, it cannot be said that in commercial parlance or according to popular sense, processed or frozen shrimps, prawns and lobsters are recognised as different commodity distinct from raw shrimps, prawns and lobsters. Further the question whether raw shrimps, prawns and lobsters after suffering processing retain their original character or identity or become a new commodity has to be determined not on the basis of a distinction made by the State Legislature for the purpose of exigibility to State Sales Tax because even where the commodity is the same in the eyes of the persons dealing in it the State Legislature may make a classification for determining liability to sales tax.

22 of 1960. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. H.J. Umrigar and B. P. Maheshwari, for the petitioner. A.C. Mitra, B. Das and P. K. Bose, for the respondents Nos. 1 and 2. P. K. Mukherjee, for respondent No. 3. 1960, December 9. The Judgment of Kapur, Gajendragadkar and Wanchoo, JJ., was delivered by Wanchoo, J., and that of Sinha, C.J., and Subba Rao, J., was delivered by Subba Rao, J. WANCHOO, J. This petition under article 32 of the Constitution challenges the constitutionality of section 39 of the Calcutta Police Act, No. IV of 1866, (hereinafter called the Act). The facts necessary for our purpose are these. On August 11, 1954, the petitioner entered into an agreement with one Haripada Bhowmick, who is respondent No. 3 with respect to an eating house named 'Kalpatoru Cafeteria ', situate in No. 2 Chowranghee Road, Calcutta. The petitioner was appointed a contractor by this agreement and was given the exclusive use and occupation of the said eating house upon certain terms and conditions. A licence has to be taken out with respect to an eating house under section 39 of the Act. It appears that originally the licence was in the name of Bhowmick, and one of the conditions of the licence was that the eating house should not be sublet 139 without permission of the Commissioner of Police (hereinafter referred to as the Commissioner). On the date of the agreement, Bhowmick held a licence for the eating house, which was to expire on March 31, 1955. It is said that under the agreement the licence was to remain in the name of Bhowmick while the petitioner was to carry on the business as a contractor. The petitioner carried on the business from after the date of the agreement and no application for a fresh licence was made by him before March 31, 1955, when the licence in the name of Bhowmick was to expire. It was only on August 8, 1955, that an application for licence was made by the petitioner on behalf and in the name of Bhowmick, though the business was continued to be run by him all the time after March 31, 1955. It appears that the application made in the name of Bhowmick was rejected on December 27, 1956; but in the meantime Bhowmick was prosecuted on September 10, 1955, for running the eating house without a licence and was fined on December 12, 1955. Thereafter a notice was issued to Bhowmick on September 7, 1956, to show cause why his application for licence should not be refused inasmuch as he had not applied in time and violated the condition of the licence by sub letting the eating house to the petitioner. Thereafter the petitioner applied on September 21, 1956, for the issue of a licence in his own name. It may be mentioned that in the meantime there had been disputes between Bhowmick and the petitioner and a suit had been filed by Bhowmick against the petitioner in October 1956 in that connection. It may also be mentioned that though the petitioner applied for the first time on September 21, 1956, for licence he had already been prosecuted in October, 1955, for keeping an eating house without a licence and convicted in November 1955. The application made by the petitioner on September 21, 1956, was eventually rejected on March 30, 1958, though in the meantime the petitioner was all along continuing the business of the eating house without having obtained a licence. After the rejection of his application the petitioner applied to the High 140 Court under article 226 of the Constitution challenging the constitutionality of section 39 and also challenging the order of the Commissioner rejecting his licence on various grounds. This application was dismissed on August 7, 1958. Thereupon the petitioner went up in appeal to a Division Bench of the High Court which was disposed of on March 4, 1959. The Division Bench held section 39 to be constitutional. It further held that as extraneous matters had been taken into account in rejecting the application of the petitioner for a licence the rejection was not in accordance with law. However, as the period of one year for which a licence is valid under section 39 had expired in September 1957, and the judgment was being delivered in March 1959, the appeal was dismissed on the ground that application could not be considered in 1959. Thereupon the petitioner made another application to the Commissioner on March 30, 1959, for the period from April 1, 1959 to March 31, 1960. During all this time the petitioner was carrying on his business as a keeper of the eating house without a licence. This application was found defective and another application was made on May 14, 1959. In the meantime, the petitioner again applied to the High Court on or about May 8, 1959, under article 226 of the Constitution in order to compel the Commissioner to issue him a licence or in the alternative to compel him not to prosecute him for keeping an eating house without a licence and for such other orders as the High Court might deem fit to pass. It may be mentioned that day to day prosecution of the petitioner had begun from February 1956 under section 40 of the Act for continuing to keep an eating house without a licence. This writ application filed in the High Court was withdrawn by the petitioner on May 13, 1959, as his application to the Commissioner of March 30, was defective. On May 30, 1959, the Commissioner rejected the application of the petitioner for a licence on the ground that his antecedents and his present conduct showed that he would not keep good behavior and further that he would not be able to prevent drunkenness or disorder among the persons frequenting or using the eating 141 house ' The petitioner 's complaint is that he was not heard before the order rejecting his application was passed. Then on June 15, 1959, the petitioner again applied under article 226 of the Constitution to the High Court against the rejection of his application on May 30. On February 11, 1960, the High Court allowed the petitioner to withdraw the application with liberty to move such application as he may be advised before, this Court, in case such liberty was necessary. Thereafter the petitioner moved this Court by his present application on February 15, 1960. His main contention before us is that section 39 of the Act confers naked and uncanalised powers on the Commissioner to grant or refuse a licence and that no criteria have been laid down anywhere in the Act to guide the discretion of the Commissioner. Further, no opportunity is provided to an applicant for a licence to be heard either orally or in writing before passing orders on an application for licence; in consequence, the Commissioner has been given completely arbitrary powers either to grant or to refuse a licence and this amounts to an unreasonable restriction on the fundamental right of the petitioner to carry on the trade of eating house keeper. Besides this attack on the constitutionality of section 39 the petitioner also contends that the order is mala fide and should be struck down on this ground. There are some other grounds in the petition but they have not been pressed before us and it will not be necessary to consider them. The first question therefore that falls for consideration is whether section 39 of the Act is a reasonable restriction within the meaning of article 19(6) on the fundamental right to practise any profession or to carry on any occupation, trade or business contained in article 19 (1)(g). 39 is in these terms: "The Commissioner of Police, may, at his discretion, from time to time, grant licences to the keepers of such houses or places of public resort and entertainment as aforesaid for which no licence as is specified in the Bengal Excise Act, 1909, is required upon such conditions, to be inserted in every such 142 licence, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licences may be granted by the said Commissioner, for any time not exceeding one year. " Learned counsel for the petitioner contends that the language of section 39 shows that an absolute discretion; untrammelled by any considerations, is conferred on the Commissioner by this section and there is nothing either in the section or anywhere in the Act to guide the discretion of the Commissioner in the matter of granting such licences. Therefore, according to learned counsel, the power conferred on the Commissioner is arbitrary and unguided and such power is necessarily to be struck down on the ground that it cannot be a reasonable restriction on the fundamental right to carry on trade. There is no doubt that if the section empowers the Commissioner to grant or refuse a licence without any criteria to guide him, it would be an unreasonable restriction on the right to carry on trade. We have therefore to see whether there is any guidance either in the section or in the Act to regulate the exercise of discretion of the Commissioner in the matter of granting such licences. In this connection it must be remembered that the Act was passed in 1866 when there were no fundamental rights and we cannot expect that meticulousness of language which should be found in statutes passed after January 26, 1950. It may also be mentioned that the Act replaced two earlier Acts, namely, Act XIII of 1856 and XLVIII of 1860. The Act of 1860 also contained provisions for licences for eating houses in sections II and 12 thereof, though the language of those sections was somewhat different. 11 laid down that in the towns of Calcutta, Madras and Bombay no eating house shall be kept without licence and provided for a penalty for the same. 12 then laid down that the Commissioner shall from time to time grant licences to 143 keepers of such houses upon conditions for securing the good behaviour of the keepers of the said houses and for the prevention of drunkenness and disorder among the persons frequenting or using the same. The language of section 39, however, is different inasmuch as it provides that the Commissioner may at his discretion from time to time grant licences. The Act of 1860 was interpreted by the Bombay High Court in Rustom J. Irani vs H. Kennedy (1) as giving no discretion to the Commissioner to refuse a licence if the person applying for the licence was willing to fulfil the conditions imposed thereunder. In the case of Calcutta, however, section 39 made a change in the language contained in the earlier Act giving discretion to the Commissioner in the matter of grant of licences. The question therefore is whether the word "discretion" introduced by section 39 means an absolute and unguided discretion and would therefore now become an unreasonable restriction on the fundamental right of a citizen to carry on the trade of keeping an eating house. There is no doubt, as we have already indicated, that the section does not say as many of the provisions of laws passed after January 26, 1950, do that the Commissioner would grant licence on certain specified considerations. The contention on behalf of the petitioner is that the first part of section 39 confers an absolute discretion on the Commissioner to grant or to refuse a licence just as he pleases and that the second part of the section merely provides for certain conditions to be imposed in case the Commissioner pleases to grant a licence. We are however of opinion that when we are judging a law passed in 1866 to decide whether it satisfies the test of constitutionality based on article 19(1)(g) and article 19(6), we should take the section as a whole and see whether on a fair reading of the section it can be said that there is no guidance for the Commissioner in the matter of granting or refusing licences and his power is arbitrary. If such guidance can be found on a fair reading of the section, there would be no reason for striking it down simply because it has not been worded in a manner which (1) Bom. 144 would show immediately that considerations arising from the provisions of article 19(1)(g) and article 19(6) were in mind naturally those considerations could not be in the mind of the legislature in 1866. We have therefore to see whether an Act passed before the Constitution came into force can be reasonably and fairly read as containing guidance in the matter of licensing, as in this case. If it can be fairly and reasonably read to contain guidance it should not be struck down. If, on the other hand, on a fair and reasonable construction of the section as a whole, we come to the conclusion that there is no guidance in it and the discretion vested in the Commissioner is absolute and arbitrary it will have be struck down. What then does the section provide? It certainly gives powers to the Commissioner to grant licences at his discretion. Those words, however, by themselves do not necessarily mean that the Commissioner has the power to act arbitrarily and grant licences where he pleases and refuse where he does not please to do so. The section provides further that the licence has to be granted upon certain conditions and those conditions have to satisfy two objects, namely, (i) securing of the good behaviour of the keepers of the said houses or places of public resort and entertainment and (ii) the prevention of drunkenness and disorder among the persons frequenting or using the same. Of course, it is implicit in the section that a licence will only be granted to a person who is the keeper of an eating house. We cannot read the section as laying down that the discretion is absolute and that the im. posing of conditions for the aforesaid two objects only arises after that absolute discretion has been exercised in favour of the grant of licences. We see no unfairness or unreasonableness in reading the section to mean that the Commissioner shall satisfy himself (i) that the person applying for a licence is the keeper of an eating house, meaning thereby that he has a place where he can carry on the business or trade and that he actually and effectively has control and possession of that place, (ii) that the keeper is a person of good behaviour so that the eating house may not become 145 a resort of criminals and persons of ill repute, and (iii) that the keeper is in a position to prevent drunkenness and disorder among those who come to the eating house. This section appears in the Police Act, the purpose of which is to maintain law and order and that is why we find that the two objects to be secured when granting licences are the good behaviour of the keeper himself and the prevention of drunkenness and disorder among those who frequent the eating house. It seems therefore to us that section 39 clearly provides that the Commissioner will use his discretion in deciding whether the person applying for a licence is in actual and effective control and possession of the place where the eating house is to be kept and is thus the keeper thereof. He will also satisfy himself that the keeper is a person of good behaviour and further that he is able to prevent drunkenness and disorder in the eating house. If he is satisfied on these three matters, it seems to us that the section contemplates that the discretion will be exercised in favour of the grant of a licence. We cannot accept that even though the Commissioner may be satisfied that the person applying for a licence has actual and effective control of the place where he is going to keep the eating house, is a person of good behaviour and can prevent drunkenness and disorder among the clientele, he will still go on to refuse the licence. The discretion that is given to him is to satisfy himself on these three points and if he is satisfied about them he has to grant the licence. On the other hand if he is not satisfied on any one or more of these points he will exercise the discretion by refusing the licence. As for the conditions which will be inserted in the licence, they are only for the purpose of carrying on the two objects specified in the section. They will naturally be more detailed in order to carry out the two objects aforesaid. But these two objects in our opinion along with the obvious implication in the section that the person applying must have actual and effective control of the place where he is going to keep the eating house are the criteria which will govern the exercise 146 of discretion by the Commissioner in the matter of granting or refusing a licence. We cannot agree with the learned counsel for the petitioner that the two parts of section 39 should be read separately, as if one has no effect on the other. Reading them together, it is in our opinion fair and reasonable to come to the conclusion that the discretion of the Commissioner in this matter is guided by the two objects mentioned in the section and by the necessary implication contained in it that the person applying must be in actual and effective control and possession of the place where he is going to keep the eating house. The argument therefore that section 39 confers an arbitrary and uncanalised power Without any criteria for guiding the discretion of the licensing authority must fail and the section cannot be held to be an unreasonable restriction on the right to carry on trade on this ground. Then it is urged that even if there is guidance in the section it provides for no hearing either oral or written of the person applying for a licence. Further it provides for no grounds to be given for refusing a licence. Therefore, though there may be some guiding principle in the matter of granting licences, the absence of a provision for hearing and for giving reasons for refusal would also make the provision unconstitutional as an unreasonable restriction on a fundamental right. Reference in this connection was made to State of Madras vs V. G. Row (1) where it was observed that "In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. " There is no doubt that procedural provisions of a statute also enter into the verdict as to its reasonableness; but at the same time there can be no abstract or 147 general principles which would govern the matter and each statute has to be examined in its own setting. It is undoubtedly correct that no provision has been made for giving a hearing to a person applying for a licence and the Commissioner has not to give reasons when refusing the licence; but it cannot be laid down as a general proposition that where in the case of licensing statute no provision is made for hearing and there is no provision for giving reasons for refusal the statute must be struck down as necessarily an unreasonable restriction on a fundamental right. No case has been cited before us which lays down such a general proposition. We have therefore to examine the section in its setting to decide whether the absence of a provision for hearing and for requiring the Commissioner to give reasons for refusal would make this section unconstitutional. The section appears in the Police Act, which deals generally with matters of law and order and the two objects specified in the section are also for the same purpose. The discretion is vested in a high police officer who, one would expect, would use it reasonably. There is no provision for appeal and there is no lis as between the person applying for a licence and the Commissioner; the exercise of the discretion depends upon the subjective satisfaction of the Commissioner as to whether the person applying for a licence satisfies the three conditions mentioned above. It is true that the order when made one way or the other affects the fundamental right of carrying on trade, but in the circumstances it cannot but be an administrative order (see, Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam (1)), and though the Commissioner is expected to act reasonably there is no duty cast on him to act judicially. In Nakkuda Ali vs M. F. De section Jayaratne (2), the Privy Council pointed out that it was Quite possible to act reasonably without necessarily actinG judicially and that it was a long step in the argument to say that because a man is expected to act reasonably he cannot do so without a course of conduct analogous to the judicial process. The compulsion of hearing before (1) ; ,1253. (2) 148 passing the order implied in the maxim 'audi alteram partem ' applies only to judicial or quasi judicial proceedings: (see, Express Newspapers (P.) Ltd. vs The, Union of India (1)). Therefore, the fact that no hearing is required to be given by the Commissioner before he decides to grant or refuse a licence would not make the provisions as to licensing in the circumstances of this case unreasonable restrictions on the fundamental right of carrying on a trade. For the same reasons it cannot be said that because the reasons for refusal are not communicated to the person applying that would make the licensing provision unconstitutional. The person applying knows that under the law there are three conditions (already set out above) which the Commissioner has to consider in granting or refusing the licence. If he thinks that he fulfills the three conditions and the Commissioner has acted unreasonably in rejecting his application he is not without a remedy; he can apply to the High Court under article 226 and compel the Commissioner to disclose the reasons for refusal before the Court and if those reasons are extraneous or are not germane to the three matters arising under section 39, the High Court will compel the Commissioner to act within the scope of section 39. We are therefore of opinion that in the circumstances of this case and in the setting in which section 39 appears the mere absence of a provision for a hearing or a provision for communicating the reasons for refusal to the person applying, does not make section 39 unconstitutional as an unreasonable restriction on a fundamental right. The attack therefore on the constitutionality of section 39 must fail. Then we turn to the question of mala fides. It is not the case of the petitioner that the Commissioner has any personal animus against him or that he is favouring Bhowmick. What he says in ground 41 of his petition in this connection is that the reasons given by the Commissioner in his order dated May 30, 1959, for refusing the licence are not correct and that the Commissioner is annoyed with him because he went to the High Court by means of a writ application. (1) 106. 149 These in our opinion are no grounds for holding that the order of the Commissioner passed in this case on May 30, 1959, is malafide. The petition therefore fails and is hereby dismissed with costs. SUBBA RAO, J. We regret our inability to agree with Wanchoo, J. Our learned brother in his judgment has stated the facts fully and it is not necessary to restate them here. The petitioner applied to the Commissioner of Police, Calcutta, for a licence to enable him to carry on the business of an eating house known as "Kalpatoru Cafeteria". The Commissioner by his order dated May 30, 1959, rejected the application made by the petitioner for a licence on two grounds, namely, that he was not satisfied that from "the antecedents and resent conduct" of the petitioner it would be reasonable to think that the petitioner would keep good behaviour and would be able to prevent drunkenness or disorder among the persons frequenting the eating house. The application was rejected under section 39 of the Calcutta Police Act, No. IV of 1866 (hereinafter called the Act). The short question raised is whether section 39 of the Act is constitutionally valid. Section 39 of the Act reads: "The COMMISSIONER of Police, may, at his. discretion, from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment as aforesaid for which no license as is specified in the Bengal Excise Act, 1909, is required upon such conditions, to be inserted in every such license, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the said Commissioner, for any time not exceeding one year. " Learned counsel for the petitioner contends that 150 the petitioner has under article 19(1)(g) of the Constitution a fundamental right to carry on the business of an eating house and that the provisions of section 39 of the Act impose unreasonable restrictions on the exercise of his right and, therefore, the said section is void. Before scrutinising the provisions of that section it would be convenient at the outset to notice the relevant aspects of the law vis a vis the concept of reasonable restrictions on a fundamental right. The concept of reasonableness has been clearly defined by Patanjali Sastri, C. J., in State af Madras vs V. G. Row (1) thus: "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonablenes s can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions 'imposed, the extent and urgency of the evil sought Co be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict". There the constitutional validity of section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908, was impugned on the ground that it fell outside the scope of authorized restrictions in article 19(4) of the Constitution. The issue of a notification by the State Government declaring an association unlawful was made to depend upon its subjective satisfaction of certain objective factors. The Act also provided for an enquiry before an Advisory Board and the subsequent review of the order by the Government on the basis of the said enquiry. It was pressed upon this Court to hold that the said restriction passed the test laid down in article 19(4) of the Constitution. In rejecting the con tention, Patanjali Sastri, C. J., observed thus: "The formula of subjective satisfaction of the Government or of its officers, with an Advisory (1)[1952] S.C.R. 597, 607, 608. 151 Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. " The learned Chief Justice adverting to the procedural aspect of the restriction criticised the absence of a provision in the impugned Act for personal service on the association and thus depriving its members of the opportunity to make their representations. Compared with section 39 of the Act, the impugned provisions of the Criminal Law Amendment Act impose more stringent control on the exercise of the discretionary power by the Government. Yet the Court struck down the provisions. The attempt made to distinguish that decision on the ground that it related to the fundamental right of freedom of speech cannot be justified as the freedom to do business is also one of the important fundamental rights under the Constitution, The case of Thakur Raghubir Singh vs Court of Wards, Ajmer (1) was concerned with the question of the reasonableness of the provisions of section 112 of the Ajmer Tenancy and Land Records Act (XLII of 1950) which provided that "if a landlord habitually infringes the rights of a tenant under this Act, he shall, notwithstanding anything in section 7 of the Ajmer Government Wards Regulation, 1888 (1 of 1888), be deemed to be a 'landlord who is disqualified to manage his own property ' within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards. " The determination of the question whether a landlord habitually infringed the rights of a tenant was left to the Court of Wards. This Court held that section was void as being unreasonable restriction on the right in property as the restriction made the enjoyment of that right to depend upon the mere discretion of the (1)[1953] S.C.R. 1049, 1055. 152 executive. Mahajan, J., as he then was, observed as under: "When a law deprives a person of his possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can, on no construction of the word "reasonable" be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a, civil court. " Though section 112 of the Ajmer Tenancy and Land Records Act laid down an objective test, namely,"a landlord habitually infringing the rights of tenants under that Act", and, therefore, may be said to have laid down some policy for the exercise of the discretion by the Court of Wards, the section was struck down as the discretion was uncanalised and no effective procedure was prescribed to remedy the grievance of an aggrieved party. It cannot be said that the Commissioner of Police has a higher status than the Court of Wards or that the taking over of the management of an estate affects a larger right than preventing a person from doing his business. The decision in Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (1) dealt with cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, whereunder the licensing authority was given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence under the said Order and the only thing he had to do was to record reasons for the action he took. Under the clause the State Coal Controller could delegate power to any other officer. This Court held that the said Order was void as it imposed unreasonable restrictions on the freedom of trade and business guaranteed under article 19(1)(g) of the Constitution and not coming within the protection afforded (1)[1954] S.C.R. 803, 811. 153 by cl. (6) of the Article. Mukherjea, J., as he then was, observed to the following effect: "The power of granting or withholding licences or of fixing the prices of the goods would necessarily have to be vested in certain public officers or bodies and they would certainly have to be left with some amount of discretion in these matters. So far no exception can be taken; but the mischief arises when the power conferred on such officers is an arbitrary power unregulated by any rule or principle and it is left entirely to the discretion of particular persons to do anything they like without any check or control by any higher authority. " We shall now notice some of the decisions cited at the Bar on behalf of the Commissioner in support of the validity of the impugned provisions. In Babul Chandra vs Chief Justice and Judges, High Court of Patna (1) it was held that the proviso to s ub section (1) of section 9 of the Indian Bar Councils Act was not void as being an unreasonable restriction upon the freedom to practise a profession, or to carry on an occupation, trade or calling. The proviso to section 9(1) states expressly that the rules "shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion". Under section 8 of the Indian Bar Councils Act, no person is entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of that Court maintained under the Act. Under section 9 of that Act, the Bar Council can frame rules with the sanction of the High Court to regulate the admission of persons as Advocates. The proviso saves the overriding power of the High Court to refuse admission in its discretion. It was contendedthat an unfettered and uncontrolled discretion wasgiven to the High Court and that was unreasonable. This Court pointed out that there could not be a better authority than the High Court in that State to which the discretion could be entrusted. This decision turned upon three considerations, namely, (1) no person was entitled as of right to practise; (2) the discretion to refuse was vested in the (1)A.I.R. 20 154 highest judicial body in the State; and (3) it was implicit in the power of discretion that the High Court would give notice before rejecting an application. On that basis this Court held that the restrictions imposed by the proviso to section 9(1) were reasonable. Nor does the decision in Harishankar Bagla vs The State of Madhya Pradesh (1) lay down any different principle. There this Court was concerned with cl. 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by the Central Government under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which required a citizen to take a permit from the Textile Commissioner to enable him to transport cotton textiles purchased by him. It was contended in that case that the requirement of a permit was an unreasonable restriction on the citizen 's right under sub cls. (f) and (g) of article 19(1) of the Constitution. This Court rejected the contention and affirmed the validity of the law. Mahajan, C. J., speaking for this Court gave four reasons in support of his conclusion and they were: (1) the Legislature passed the Essential Supplies (Temporary Powers) Act during a period of emergency when it was necessary to impose control on the production, supply and distribution of commodities essential to the life of the community; (2) cl. 3 of the Control Order did not deprive a citizen of the right to dispose of or transport cotton textiles purchased by him, but only required him to take a permit from the Textile Commissioner to enable him to transport them; (3) if transport of essential commodities by rail or other means of conveyance was left uncontrolled, it might well have seriously hampered the supply of these commodities to the public; and (4) the policy underlying the Order was clearly enunciated by the provisions therein and that policy governed the exercise of the discretion by the Textile Commissioner. On these considerations this Court maintained the validity of that Order. The said decision has no analogy to the provisions of section 39 of the Act in question. The decision in Union of India vs Bhana Mal Gulzarimal Ltd. (2) related to the question of validity of (1) (2) ; , 641. 155 cl. 11B of the Iron and Steel (Control of Production and Distribution) Order, 1941. This Court held, having regard to the provisions of that Order and those of the Essential Supplies (Temporary Powers) Act, 1946, that the Legislature had clearly enunciated its legislative policy and that cl. 11B of the Order laid down the object which was intended to be achieved. Gajendragadkar, J., delivering the judgment of the Court, observed thus: "Therefore reading cl. 11B by itself we do not see how it would be possible to hold that the said clause is violative of article 19. In fact, if sections 3 and 4 are valid and cl. 11B does nothing more than prescribe conditions for the exercise of the delegate 's authority which are consistent with section 3 it is only the actual price structure fixed by the Controller which in a given case can be successfully challenged as violative of article 19." The learned Judge considered the price structure fixed by the notification and observed that the respondents therein did not seriously challenge the validity of the notification in respect of price structure and, that apart, it was not proved that the notification adversely affected a large class of dealers taken as a whole. The judgment, therefore, does not help the respondents. Nor is the decision of this Court in Mineral Development Ltd. vs State of Bihar (1) of any help to the respondents. There the constitutional validity of section 25(1) of the Bihar Mica Act (10 of 1948) was impugned as violating the petitioners ' fundamental right under article 19(1)(f) and (g), of the Constitution. Under section 25(1)(c) of that Act discretion was given to cancel a licence to the State Government, but cl. (c) was hedged in by two important restrictions, namely, (i) the failure to comply with the provisions of that Act or the rules made thereunder should be a repeated failure and not a mere sporadic one, i.e., the defaulter must be a recalcitrant one; (ii) before canceling the licence the State Government should afford reasonable opportunity to the licensee to show cause why his license (1) , 619. 156 should not be cancelled. This Court in upholding the validity of the said section observed thus: "The power given to the State Government is only to achieve the object of the Act, i.e., to enforce the said provisions, which have been enacted in the a interest of the public; and that power, as we have indicated, is exercisable on the basis of objective tests and in accordance with the principles of natural justice. We cannot, therefore, hold that section 25(1)(c) of the Act imposes an unreasonable restriction on the petitioner 's fundamental rights under article 19(1)(f) and (g) of the Constitution. " This decision far from helping the respondents is, to some extent, against their contention. The result of the discussion may briefly be summarized in the form of the following propositions: A fundamental right to do business can be controlled by the State only by making a law imposing in the interest of the general public reasonable restrictions on the exercise of the said right; restrictions on the exercise of a fundamental right shall not be arbitrary or excessive or beyond what is required in the interest of the general public; the reasonableness of a restriction shall be tested both from substantive and proce dural aspects; an uncontrolled and uncanalised power conferred on an officer is an unreasonable restriction on such right; though a legislative policy may have been clearly expressed in a statute, it must also pro. vide a suitable machinery for implementing that policy in accordance with the principles of natural justice; whether a restriction is reasonable or not is a justiciable concept and it is for the Court to come to one conclusion or the other having regard to the considerations laid down by Patanjali Sastri, C.J., in State of Madras vs V. G. Row (1).and similar others; in taking an overall picture of the relevant circumstances, the Court may legitimately take into consideration the fact that the discretion is entrusted to a State Government or a highly placed officer, but that in it self is of minor importance for the simple reason that the fundamental right itself is guaranteed against the (1)[1952] S.C.R. 597. 157 action of the State, which is defined to include not only the Union or the State Governments but also Parliament, Legislatures and all local or other authorities within the territory of India; the distinction between an administrative authority and a judicial authority is not of much relevance in the context of a reasonable restriction, except perhaps a Court may more readily be inclined to uphold a restriction if a matter is entrusted to an impartial judicial authority than to an executive authority. Bearing the aforesaid principles in mind, let us look at the impugned provisions of the Act. The section has been extracted supra. The first part of the section confers a free and unqualified discretion on the Commissioner to grant a licence. A discretionary power to issue a licence necessarily implies a power to refuse to issue a licence. The word "may" is an enabling one and in its ordinary sense means "Permissible". When coupled with the words "at his discretion" it emphasises the clear intention of the legis lature to confer on the Commissioner an unrestrained freedom to act according to his own judgment and conscience. If the section stops there, it is common case that the power of the Commissioner is.uncontrolled and uncanalised. The second part of the section deals with the nature of the conditions to be inserted in the licence. The conditions to be imposed are for securing the good behaviour of keepers of public resort and for the prevention of drunkenness and disorder among the persons frequenting or using such places. No doubt the said conditions must have the sanction of the State Government. This part, therefore, ensures the peaceful and orderly conduct of business. The section is clear and unambiguous in terms and it is not disputed that the plain terms of the section will not enable the conditions of a licence to be projected into the matter of the exercise of the discretion. But what is contended is that the conditions laid down a precise policy for guiding the discretion of the Commissioner to give or not to give a licence. There are many objections to this approach 158 to the problem. Firstly, it is to rewrite the section. If the legislature intended to guide the discretion by laying down objective criteria it would have stated so in express terms; it would not have left the matter to the absolute discretion of the Commissioner. Secondly, if the two conditions only of the licence control the exercise of the discretion, the Commissioner cannot travel beyond the said two conditions. As a result the amplitude of the discretion is drastically cut down. The Commissioner would be able to refuse a licence only if he was satisfied that the applicant could not be relied upon to comply with the said conditions; if he was so satisfied, he could not refuse a licence in spite of the fact that there were many other good and relevant reasons for doing so. Thirdly, if the conditions are not exhaustive but only illustrative, the section would continue to suffer from the same vice, as it would still be open to the Commissioner to refuse a licence for any other reason. Fourthly, discretion based upon an anticipatory breach of conditions will be as arbitrary as in the case of absolute discretion, particularly in the case of new applicants, as more often than not it will have to be exercised on the basis of surmises, gossip or information, which may be false or at any rate untested. Lastly, by this unwarranted search for an undisclosed policy in the crevices of the statute, this Court will not only be finding an excuse to resuscitate an invalid law but also be encouraging the making of laws by appropriate authorities in derogation of fundamental rights. The provisions of sections 47 and 48(3) of the (IV of 1939), bring out in bold relief the distinction between the exercise of a discretion to issue a licence and the imposition of conditions in a licence. Section 47 enjoins on the Regional Transport Authority in considering an application for a stage carriage permit to have regard to the matters enunciated in that section. Section 48(3) enables the Regional Transport Authority to attach to the permit the conditions detailed in that sub section. While the former section regulates the exercise 159 of the discretion of the Regional Transport Authority issuing a permit, the latter describes the nature of the conditions to be inserted in the permit. These provisions no doubt cannot be invoked to construe the provisions of section 39 of the Act, but we are referring to them only to show the legislative practice in such matters and to emphasize the fact that the scope of the discretion to issue a licence and that of the power to impose conditions in a licence are different. Therefore, on a true construction of the plain words of the statute we cannot hold that any policy reasonably capable of controlling the discretion of the Commissioner has been laid down. Even if the two conditions can be read into the first part of section 39, the arbitrariness is writ large in the manner of exercising the so called guided discretion. In this context it is not necessary to come to a definite conclusion on the question whether the discretion is judicial or executive, for whatever be the nature of the discretion it must be tested from the standpoint of reasonableness of the restrictions imposed on a person 's right to do business. A citizen of India, for the purpose of eking out his livelihood, seeking to do an extensive business of an eating house, applies to the Commissioner for a licence, for without that licence he cannot do business, and if he does he will be liable to prosecution. The Commissioner can reject the application on two grounds, namely, (1) from his antecedents and present conduct it would be unreasonable to think that the petitioner would keep good behaviour, and (2) the Commissioner is not satisfied that the petitioner would be able to prevent drunkenness and disorder among the persons frequenting or using the eating house. Admittedly this order is made without giving any opportunity to an applicant to prove that he would satisfy both the tests laid down by section 39 of the Act. The Commissioner is not legally bound to give any reasons for his refusal to give a licence. Even if reasons are given, there is no machinery for getting such an order revoked or vacated. The section does not impose a duty on the Commissioner to give reasonable opportunity to an 160 applicant to clear his character or to disprove any un warranted allegations made against him or to prove that he would satisfy both the tests laid down by section 39 of the Act. Nor does the section provide for an appeal against the order of the Commissioner to an appropriate authority. The suggestion that the authority is a high officer in the police department and that he can be relied upon to exercise his discretion properly does not appeal to us for two reasons, namely, (1) as we have already pointed out, the Constitution gives a guarantee for the fundamental right against the State and other authorities; and (2) the status of an officer is not an absolute guarantee that the power will never be abused. Fundamental rights cannot be made to depend solely upon such presumed fairness and integrity of officers of State, though it may be a minor element in considering the question of the reasonableness of a restriction. Therefore, it is clear to our mind that the exercise of the power also suffers from a statutory defect as it is not channelled through an appropriate machinery. We have, therefore, no hesitation to hold that section 39 of the Act infringes the fundamental right of the petitioner under article 19(1)(g) of the Constitution both from substantive and procedural aspects. The next question is whether a mandamus will issue against the Commissioner. The Commissioner admittedly has launched criminal proceedings against the petitioner under the provisions of the Act for not taking out a licence under section 39 of the Act. As we have held that section 39 of the Act is constitutionally void, a writ of mandamus will issue against the Commissioner of Police, Calcutta, directing him not to take any further proceedings against the petitioner for not taking out a licence under the provisions of the Act. BY COURT. In accordance with the opinion of the majority, this Petition is dismissed with costs.

By section 39 of the Calcutta Police Act, 1866, "The Commissioner of Police, may, at his discretion from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment as aforesaid for which no licence as is specified in the Bengal Excise Act, 1909 is required upon such conditions, (1) (1934) L.R. 61 I.A. 398. 136 to be inserted in every such license, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the said Commissioner, for any time not exceeding one year". The petitioner, whose application for a license in respect of an eating house was refused by the Commissioner of Police, Calcutta, under the section, challenged its constitutional validity on the ground that it conferred arbitrary and unguided powers on the Commissioner to grant or refuse a license without hearing the applicant and was, therefore, an unreasonable restriction on his fundamental right to carry on his trade guaranteed by article 19(1)(g) of the Constitution. Held, (per Kapur, Gajendragadkar and Wanchoo, JJ.), that in order to decide whether a provision in a pre Constitution statute, like the one in question, satisfies. the test of constitutionality laid down by article 19(i)(g) read with article 19(6) of the Constitution, the impugned section has to be read as a whole in a fair and reasonable manner and it should not be declared void simply because the considerations relevant to those Articles are not immediately apparent from its language. It is not correct to say that the discretion conferred on the Commissioner by the first part of the section is absolute and that the question of imposing the two conditions mentioned by the second part can arise only after the grant of the license. The two parts, read together, can lead only to the conclusion that the discretion vested in the Commissioner is guided by the two conditions mentioned in the section, namely, the securing of good behaviour and the prevention of drunkenness and disorder and a third by necessary impli cation, that the applicant must have actual and effective control and possession of the place where he keeps the eating house. Section 39 of the Calcutta Police Act, 1866, therefore, con fers no arbitrary or uncanalised discretion on the Commissioner, unguided by any criteria, and does not constitute an unreasonable restriction on the fundamental right to carry on trade under article 19(i)(g) of the Constitution. Rustom jamshed Irani vs Harley Kennedy, Bom. 386, inapplicable. Although there can be no doubt that procedural provisions of a statute also enter into the verdict as to its reasonableness, it cannot be laid down as a general proposition that if a licensing statute omits to provide for a hearing or for the giving of reasons for refusal, such omission must necessarily constitute an unreasonable restriction on a fundamental right. The Commissioner in passing an order under the section acts administratively and although he must act reasonably, there is no duty cast on him 137 to act judicially. Regard being had to the setting in which the impugned section appears in the Act and the circumstances of ,.this case, it could not be said that section 39 of the Act was such a restriction. State of Madras vs V. G. Row, ; , Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam, ; , Nakkuda Ali vs M. F. De section jayaratne, and Express Newspapers (P.) Ltd. vs The Union of India, , relied on. If an applicant thinks that he has fulfilled the three con ditions and the Commissioner has unreasonably rejected his application, he has his remedy under article 226 of the Constitution. Per Subba Rao, J. It is well settled that restrictions on fundamental rights must not be arbitrary or excessive or beyond what is required in the interest of the general public. Such restrictions have to be tested both from the substantive and the procedural aspects. An uncontrolled or uncanalised power constitutes an unreasonable restriction. Even though the statute may clearly express the legislative policy that cannot be enough unless it provides a suitable machinery for implementation of that policy in accordance with the principles of natural justice. Restrictions are justifiable and in deciding whether a restriction is reasonable or not, the Court cannot attach much importance to the fact that the impugned statute vests discretion in the State Government or a high officer. Nor can the distinction between an administrative authority and a judicial one have much relevance except that the Court may be more inclined to uphold the discretion if vested in an impartial judicial authority rather than in an administrative one. State of Madras vs V. G. Row, ; , Thakur Raghubir Singh vs Court of Wards, Ajmer, ; and M/s. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , relied on. Babulal Chandra vs Chief justice and judges, High Court of Patna, A.I.R. 1954 S.C. 524, Harishankar Bagla vs The State Of Madhya Pradesh, , Union of India vs Bhana Mal Gulzarimal Ltd.; , and Mineral Development Ltd., State of Bihar, considered. Thus viewed, the plain words of the impugned section cannot be said to lay down any policy reasonably capable of controlling the discretion vested in the Commissioner. The word 'may ' coupled with the words 'at his discretion ' in the first part of the section clearly emphasises the intention of the Legislature to confer absolute power on the Commissioner. The second part deals with the nature of the conditions to be inserted in the license. But the scope of the discretion to issue 18 138 the license and the power to impose conditions in a license are two different matters. Even if the two conditions mentioned in the second part could be read into the first, the discretion conferred by the section would still be arbitrary since the section neither requires that the Commissioner should give reasonable opportunity to the applicant to prove that he satisfies both the tests prescribed by it nor that he should give reasons for refusing the license and no appeal is provided for. Consequently , from the substantive as much as the proce dural aspect, section 39 of the Act infringes the fundamental right of the petitioner guaranteed by article 19(i)(g) of the Constitution.

URISDICTION: Civil Appeal Nos. 5439 52 of 1990 etc. From the Judgments and Orders dated 20.8.1990/4.10.1990/ 15.10.1990 of the Central Administrative Tribunal, Principal Bench, Delhi in O.A. Nos. 1023, 309, 1705, 1058 & 1054 of 1989 and 1072, 1074, 1162, 1161, 1122, 1064, 536, 1230 of 1990 and M.P. No. 1354 of 1990 in O.A. No. 309 of 1989. P.P. Rao, A.K. Behere, A.K. Sahu, C.N. Sreekumar, Gopal Subramanium, Madhan Panikhar, Mrs. Vimla Sinha, Gopal ,Singh, Salman Khurshid, Mrs. C.M. Chopra, A.M. Khanwilkar and Mrs. V.D. Khanna for 58 the Appellants. Kapil Sibal, Additional Solicitor General, Ms. Kamini Jaiswal and C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J. The above batch of Civil Appeals in which common questions of law arise, is preferred by special leave under Article 136 of the Constitution of India against the judgments dated 20.8.1990, 4.10.1990 and 5.10.1990 of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as Tribunal) rendered in various affiliated groups of original applica tions (O.As) upholding the validity of the second proviso to Rule 4 of the Civil Services Examination Rules (hereinafter referred to as 'C.S.E. Rules ') introduced by Notification No. 13016/4/86 AIS(1) dated 13.12.1986 (Published in the Gazette of India Extraordinary, Part 1 Section 1). Be it noted that similar notification has been/is being issued each year for the general information of the candidates setting down the terms and conditions, eligibility etc. to sit for the Civil Service Examination of the concerned year. While a substantial number of O.As filed before the Tribunal at Delhi were pending, a similar number of analo gous O.As filed before the Benches of Administrative Tribu nals at Patna, Allahabad, Chandigarh, Jabalpur, Hyderabad, Jodhpur and Eranakulam were transferred to the Tribunal at Delhi since common questions of law arose for determination in all the O.As. The Tribunal rendered its main judgment in O.A.No. 206/89 Alok Kumar vs Union of India & Ors. and 61 other O.As in which the facts appear to be common. The other judgments were passed on the basis of the conclusions arrived in O.A. No. 206/89 and the connected batch of OAs. Since the Tribu nal has set out only the facts in the case of Alok Kurnar (O.A. No. 206/89) treating it as a main application and illustrative of the questions raised, we would like to briefly indicate the facts of A1ok kumar 's case so that the impelling circumstances which led to the filing of these appeals and the common questions of law involved may be understood in the proper perspective in the light of the judgment of the Tribunal. In this context, it may be noted that though no appeal has been filed against the Order in O.A.No. 206/89, we are given to understand that Alok Kumar who agitated his similar claim along with two others who were all allocated to Group 'A ' Services (I.R.P.S.) in O.A.No. 1071/1990 has 59 preferred Civil Appeal No. 5469 of 1990 against the judgment in the said O.A. No. 1072 of 1990. Shri Alok Kumar filed his application in December 1986 to sit for the preliminary examination in 1987. The prelimi nary examination was held by the Union Public Service Com mission ( 'UPSC for short ') in June 1987 and the result was declared in July 1987. The C.S.E. (Main) Examination was held by the UPSC in November 1987. The interviews took place in ' April 1988 and the final results were declared by the UPSC in June, 1988. The applicant, Alok Kumar was selected for appointment to Central Service Group 'A ' post. A commu nication to this effect was sent to him on 30.8.88 in which Alok Kumar 's attention was drawn to Rule 4 of the C.S.E. Rules 1987 pointing out that if he intended to appear in the Civil Services (Main) Examination in 1988 he would not be allowed to join the Probationary Training, along with the candidates of 1987 group but would only be allowed to join the Probationary Training along with the candidates who would be appointed on the basis of the CSE 1988. The said letter also indicated that in the matter of seniority, he would be placed below all the candidates who would join training without postponement. Therefore, he was required to furnish the information about his appearing in the CSE (Main) 1988 to the concerned cadre controlling authorities. He was further informed that only on receipt of the above information, the concerned cadre controlling authority would permit him to abstrain from the Probationary Training. The Joint Director, Estt. G (R), Ministry of Railways (Railway Board) informed Alok Kumar about his selection for appoint ment to the Indian Railway Personnel Service and that the training would commence from 6.3.1989 and that he should report for training at the Railway Staff College, Vadodara. Further he was informed that he once joined the Probationary Training along with 1987 batch, he would not be eligible for consideration of appointment on the basis of subsequent CSE conducted by the UPSC. The case of Alok Kumar was that he did not intend to appear in the next CSE and he had already appeared for the CSE 1988 even before he received the offer of appointment dated 2.1.1989. He was then intimated that if he had already joined the Probationary Training along with 1987 batch, he would not be eligible for consideration for appointment on the basis of subsequent CSE conducted by the UPSC. Besides the main reliefs, Alok Kumar had prayed for an interim order to join and complete the current Probationary Training without being compelled to sign the undertaking sought to be obtained from him subject to final orders in the O.A. The Division Bench of the Tribunal issued an interim order, as prayed for by Alok Kumar, allowing him to join the requisite training for 60 the service to which he had been allocated and allowed him to appear in the interview as and when he was called by the UPSC on the basis of 1988 Examination. The respondents filed their reply explaining the circum stances under which the second proviso was introduced to rule 4 of CSE Rules, its scope and ambit and refuted all the intentions raised by Alok Kumar challenging the legality and constitutionality of the impugned proviso. The Tribunal by its detailed and considered judgment has rendered its conclusions thus: "Having considered the matter in the above bunch of cases, we have come to the following conclusions: 1. The 2nd proviso to Rule 4 of the Civil Services Examination Rules is valid. The provisions of Rule 17 of the above Rules are also valid. The above provisions are not hit by the provisions of articles 14 and 16 of the Constitu tion of India. The restrictions imposed by the 2nd proviso to Rule 4 of the Civil Services Examination Rules are not bad in law. (i) The letter issued by the Ministry of Personnel, Public Grievances and Pensions dated 30th August, 1988 and in particular, paragraph 3 thereof and paragraph 4 of the letter dated 2.1.1989, issued by the Cadre Controlling Authority, Ministry of Railways (Railway Board) are held to be bad in law and unenforceable. Similar letters issued on different dates by other Cadre controlling Authorities are also unenforceable. (ii) A candidate who has been allocated to the I.P.S. or to a Central Services, Group 'A ' may be allowed to sit at the next Civil Services Examination, provided he is within the permis sible age limit, without having to resign from the service to which he has been allocated, nor would he lose his original seniority in the service to which he is allocated if he is unable to take training with his own Batch. Those applicants who have been allcoated to the I.P.S. or any Central Services, Group 'A ', can have one more attempt in the subsequent Civil Services Examination, for the Services in 61 dicated in rule 17 of the C.S.E. Rules. The Cadre Controlling Authorities can grant one opportunity to such candidates. All those candidates who have been allocat ed to any of the Central Services, Group 'A ', or I.P.S. and who have appeared in Civil Services Main Examination of a subsequent year under the interim orders of the Tribunal for the Civil Services Examinations 1988 or 1989 and have succeeded, are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules. But this examina tion will not be available for any subsequent Civil Services Examination. In the result, therefore, the Applications succeed only in part viz., quashing of the 3rd paragraph of the letter dated 30.8.1988 and 4th paragraph of the letter dated 2nd January, 1989 and similar paragraphs in the letters issued to the applicants by other cadre controlling authorities. Further, a direction is given to the respondents that all those candidates who have been allocated to any of the Central Services, Group 'A ' or I.P.S. and who have appeared in Civil Services Main Examination, 1988 or 1989 under the interim orders of the Tribunal and are within the permissible age limit and have succeeded are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules. The O.As are dismissed on all other counts. " On the basis of the above directions given in paragraphs 5(ii), 6 and 7, we gave some interim directions on 7.12.1990 which are annexed to this judgment as Annexure `A '. Several learned counsel appeared for the respective parties and advanced their submissions interpreting the rules and cited a plethora of decisions in support of their respective cases. Whilst Mr. P.P. Rao, senior counsel as sisted by Mr. C.N. Sreekumar and others, Mr. Gopal Subrama niam, Mrs. C.M. Chopra, Mr. Gopal Singh and Mr. A.M. Khan wilkar appeared for the appellants in the various batches of cases, the learned Additional Solicitor General, Mr. Kapil Sibal assisted by Ms Kamini Jaiswal and Mr. CVS Rao appeared on behalf of the respondents/Union of India & Others. The common substantial questions of law, propounded and posed for consideration in all the above appeals are: (1) Whether the second proviso to Rule 4 of the CSE Rules 1986 is invalid for the reason that it puts an embargo restricting the candi dates who are seeking to improve their posi tion vis a 62 vis their career in Government service? (2) Whether the second proviso under chal lenge travels beyond the intent of the main rule namely, Rule 4 of the CSE Rules? (3) Whether the proviso to Rule 17 of the CSE Rules is invalid on the ground that it places restriction on candidates who are seeking to improve their position vis a vis their career? (4) Whether the said second proviso to Rule 4 of CSE Rules is ultra vires to clause (iii a) of Regulation 4 of the Indian Administrative Service (Appointment by Competitive Examina tion) Regulations, 1955 (for short 'Regula tions ') inasmuch as the power to notify excep tions does not include the power to make candidates ineligible who are otherwise eligi ble in terms of clauses (i), (ii) and (iii) of Regulation 4? (5) Whether the said proviso which is an administrative instruction introduced by the impugned Notification is arbitrary and irra tional having no nexus with the object of recruitment to the post of Civil Services? (6) Whether the impugned second proviso is illegal since it makes a discrimination be tween the successful candidates of Central Service Group 'A ' and Group 'B ' as no embargo is placed restricting the candidates of Group 'B ' service, as in the case of Group 'A ' service and whether the reasons given by the Government to justify the introduction of the impugned proviso have any rational nexus to the object of the scheme of recruitment to the All India Services or/and whether such reasons are arbitrary, unfair and unjust? (7) Whether the restriction imposed on the number of attempts in pursuance of the im pugned proviso, in the case of Scheduled Castes/Scheduled Tribes candidates who were since then availing any number of attempts subject to the eligibility of age limit is unjustifiable and illegal and amounts to deprivation of the right conferred on them by the Constitution of India? (8) Whether the reasons given by the Govern ment to justify the introduction of the im pugned proviso have any rational 63 nexus to the object of the scheme of recruit ment to the All lndia Services or/and whether such reasons are arbitrary, unfair and unjust? (9) Whether the impugned second proviso is suffering from the vice of hostile discrimina tion and as such violative of Articles 14 and 16 of the Constitution of India. Recruitment to All India and Central Services Brief Histo ry and Present position: Before entering into an extensive investigation and fullfledged discussion on the questions formulated above, we feel that in order to have a more comprehensive study of the development of the civil service in India a brief history of the past system of recruitment to All India and Central Services based on the then existing mode of selection and the development of the present scheme of examination and method of recruitment till the introduction of the impugned proviso to rule 4 of CSE Rules, is necessary so as to have the background of the entire system and to assimilate the compelling necessity warranting the introduction of the new proviso. The Indian Civil Service (ICS) Examination was held only in England by the British Civil Service Commission till 1922 and thereafter in India. Four years later, the newly formed Public Service Commission (India) began to conduct the ICS Examination on behalf of British Civil Service Commission and this position continued until 1937 when the Public Service Commission (India) was replaced by the Federal Public Service Commission under the Government of India Act, 1935. Thereafter, the Indian Civil Service Examination in India was held by the Federal Public Service Commission independent of the British Civil Service Commission. After 1943, recruitments to the Indian Civil Service, Indian Police besides the Indian Audit and Accounts Service and allied services were suspended. In 1947 a combined examina tion was introduced for recruitment to the Indian Adminis trative Service, Indian Police Service and non technical Central Services. Between the years 1947 50 a combined competitive examination was held once a year for recruitment for IAS, IFS, IPS and non technical Central Services. After independence, new services known as the Indian Administra tive Services (IAS) and Indian Police Service (IPS) were established as All India Services. In order to meet the country 's requirement for diplomatic personnel another service known as Indian Foreign Service (IFS) was estab lished. The Service Commission was redesignated as the Union Public Service Commission in 1950 when the Constitution came into force. 64 While it was so, the U.P.S.C. appointed a Committee in February 1974 under the chairmanship of Dr. D.S. Kothari to make recommendations for further improvement in the system having regard to the needs of various services and accord ingly the said Committee undertook a painstaking research and carried on a comprehensive and analytical study and thorough examination of the various aspects of the problems connected with the reform in the existing examination and selection by going in great depth and detail and submitted its report on March 20, 1976 after taking into consideration of the fact of frequent receipt of complaints from the training centres and the data collected and made its recom mendations in evaluating the scheme of civil services by tracing its birth and breadth of the upper tier of this administrative machinery covering its entire field. On the recommendations of the Kothari Committee the current scheme of Civil Services Examination was introduced from 1979, as per which the Civil Services Examination conducted by the U.P.S.C. has been and is catering to the All India Services viz. IAS, IFS and IPS; and 16 Central Group 'A ' Services and 8 Group 'B ' Services. In order to be eligible to compete at the examination, a candidate must satisfy the conditions of eligibility, name ly, nationality, age and requisite qualifications as envis aged under Regulation 4 of the I.A.S. (Appointment by Competitive Examination) Regulation 1955. In addition to the above qualifications, one more condition of eligibility is added under Regulation 4 (iii a) substituted vide Department of Personnel and A.R. notification No. 11028/1/78 A1S (1) A dated 30.12.1978, according to which unless covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, every candidate appearing for the examination after 1st January, 1979, who is otherwise eligible shall be permitted three attempts at the examination. In other words, the number of attempts, a candidate can appear, is also made as one of the conditions of eligibility to sit for the IAS competitive examination. It may be pointed out in this connection that by a subse quent notification dated 23.11.1981, Regulation 4 (iii a) was further clarified that the appearance of a candidate at the examination will be deemed to be an attempt at the examination irrespective of his disqualification or cancel lation as the case may be of his candidature. An explanation is added to this, explaining "an attempt at a preliminary examination shall be deemed to be an attempt at the examina tion, within the meaning of this rule". 65 Civil Services Examination Present Scheme From the CSE held in 1979, each eligible candidate is permitted three attempts at the examination. This restric tion on the number of attempts does not apply to the candi dates belonging to SC/ST and other specified categories as may be notified by the Central Government from time to time under Rule 6(b) of the CSE Rules but subject to the relaxa tion in the upper age limit of those candidates. The scheme of selection of candidates for the Civil Services consists of three sequential stages, each making a significant and specific contribution to the total process. They are: (1) Preliminary examination serving as a screening test; (2) The main examination which intended to assess the overall intellectual traits and depth of understanding of candidates; and (3) The interview (viva voce test). Hermer Finer in his text book under the caption. The Theory and Practice of Modern Government states: "The problem of selection for character is still the pons asinorum of recruitment to the public services everywhere. The British Civil Service experiments with the interview. " The purpose of viva voce test for the ICS Examination in 1935 could be best understood from the following extract of the Civil Service Commission 's pamphlet: "Viva voce the examination will be in mat ters of general interest; it is intended to test the candidate 's alertness, intelligence and intellectual outlook. The candidate will be accorded an opportunity of furnishing the record of his life and education . " It is apposite, in this connection, to have reference to an excerpt from the United Nations Handbook on Civil Service Laws and Practice, which reads thus: " . the written papers permit an assess ment of culture and intellectual competence. This interview permits an assessment of quali ties of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities. " 66 This Court in Lila Dhar vs State of Rajasthan and Oth ers, [1981] 4, SCC 159 while expressing its view about the importance and significance of the two tests, namely, the written and interview has observed thus: "The written examination assess the man 's intellect and the interview test the man himself and 'the twain shall meet ' for a proper selection". AGE LIMIT Coming to the eligibility of age, it was initially fixed at 21 to 26 years and then reduced in 1948 to 21 to 25 years. In the following year, the age range was further reduced to 21 to 24 years except for the Indian Railway Traffic Service for which it continued to be 21 to 25 years upto 1955. The lower age limit for IPS was reduced to 20 years in the year 1951 keeping the upper age limit at 24 years. The upper age limit for the Indian Railway Traffic Service was reduced to 24 in 1955. The age limits for all other services remained at 21 to 24 years. Thereafter, though the Public Services (Qualification for Recruitment) Committee appointed by the Government of India in 1955 recommended the reduction of the age range from 21 24 to 21 23 years, the Government did not agree with that recom mendation and kept the prescribed age limit of 20/21 to 24 years unaltered. The Kothari Committee recommended that a candidate should not be less than 21 years of age and not more than 26 years on the 1st July of the year in which the candidate appears at the examination, with the usual relaxa tion of upper age limit for SC/ST and other categories as may be notified by the Government from time to time. Howev er, the Committee did not recommend lower age limit of 20 years for the IPS, as was permitted. The Government while not completely agreeing with Kothari 's Committee recommenda tions in regard to some aspects inclusive of age limit while implementing the recommendations, increased upper age limit to 28 years keeping the lower age limit of 21 years unal tered. Thus, the age limit of 21 28 years was in operation from 1979 to 1987. Then the Government re considered this issue and reduced the upper age limit to 26 years. During the course of the hearing of these appeals, it has been stated at the bar that the Government of India in February/March 1990 amended the CSE Rules and increased the upper age limit from 26 years to 28 and then to 31 years for the CSE to be conducted by the UPSC. Now by notification No. 13018/10/90 AIS (I) dated 5th January 1991, issued by the Ministry of Personnel, Public Grievances and Pensions (Deptt. of Personnel and Training) published in the Gazette of India in Part I, Sec. I the age eligibility for appearing at the examination in 1991 is that the candidate must have attained the age of 21 67 years and must not have attained 28 years on 1st August 1991 i.e. he must have been born not earlier than 2nd August, 1963 and not later than 1st August, 1970 but subject to the relaxation in the upper age limit to SC/ST and other catego ries specified under Rule 6(b) of the CSE Rules. Number of Permissible Attempts Regarding the number of attempts, a candidate could make, the Public Services (Qualifications for Recruitment) Committee in 1955 recommended that in order to identify the best candidates the number of attempts at the combined examination should be limited to two by reducing the age limit to 21 23 years. The Government accepted the recommen dation regarding restriction of the number of attempts to two instead of three, but provided that these were to be counted separately for the following categories of services Category I IAS and IFS Category II IPS and Police Service Class II of the Union Territories Category III Central Services Class I and Class II In view of the acceptance of the above recommendations, from 1961 onwards, the IAS etc. examination became in effect three examinations. Since the restriction on the number of chances were related not to the examination as a whole, but individual categories, theoretically a candidate could take as many chances as the age limit would permit. Thereafter in 1972 the age limit was raised to 26 years and the reduction of attempts from three to two was not implemented following the recommendations of the Administrative Reforms Commis sion. In fact since 1973, candidates were permitted to make three attempts for each of the three categories of services within the permissible age range. It may be stated in this connection that the Kothari Committee had recommended only two attempts for the Civil Services Examination for not only the general candidates but also candidates belonging to the SC/ST but the Government did not agree with these recommen dations and permitted three attempts to general candidates and did not impose any restriction on the number of attempts on the candidates belonging to SC/ST but of course, subject to their upper age limit. It will be worthwhile, in this context, to refer to the Report of the Committee to review the Scheme of Civil Services Examination under the 68 chairmanship of Dr. Satish Chandra, appointed by the UPSC on 12.9.1988 to review and evaluate the scheme of selection to the higher civil services introduced from 1979 in pursuance of the recommendations of the Committee on Recruitment Policy and Selection under the Chairmanship of Dr. D.S. Kothari and to make recommendations for further improvement of the system and the relevant excerpt of the report touch ing on this aspect is as follows: "We, therefore, recommend that for the general candidates the permissible number of attempts for the Civil Services Examination should continue to be three. For the members of the Scheduled Castes and the Scheduled tribes, these should be limited to six. " We are referring to the report of the committee chaired by Dr. Satish Chandra only for the purpose of showing the views expressed by it regarding the permissible number of attempts for the CSE that a candidate could make though this report was not available at the time of introduction of the impugned proviso. It may be stated that the Government of India has decided to increase the number of attempts from 3 to 4 for the Civil Services Examination 1990. Reference may also be made to the notification dated 5th January, 1991 issued by the Department of Personnel and Training by which Rule 4 was amended to the fact that "every candidate appearing at the examination who is otherwise eligible shall be permitted attempts at the examination." Salient Features of the New Scheme: Thus, the entire framework of the Civil services system have under gone a metamorphosis under the Government of India Acts of 1919 and 1935 and thereafter under our present Constitution of India. Further, pursuant to the recommenda tions made by various Committees as seen earlier there has been radical change in the system of recruitment to the CSE regard to the scheme of examination, mode of selection, the number of attempts and the eligibility of age limit since such a system was introduced It is clear from the discussion that the totality of the above review on the entire system which system is a legacy of and modelled on the Bri one and a comprehensive survey on the different aspects of the recruitment for the higher civil services manifestly show that this system did not appear suddenly like a 'dues ex machina ' created by the legislative test, but 69 evolved in the direction of political objectivity and under went a long process of gradual transformation and the role and functions of this higher civil services in India after the advent of independence irrefragably play an important and crucial role not only in providing an element of common ality in administration in our parliamentary democracy but also in accelerating socio economic development of our country in the context of our constitutional objective of growth with the social justice. The present time cycle of the CSE is such that it takes almost a year from the date of the preliminary examination to the commencement of the final results in that the prelim inary examination is held in the month of June and the result of the preliminary examination is announced by the UPSC at the end of July. The Main examination is held in the first week of November, the result of which is usually announced by the third week of March and the interviews begin in the third week of April to the end of May and the results are announced in the month of June. The merit list of successful candidates is prepared on the basis of their aggregate marks in the Main Examination and interview test and then the successful candidates are selected and allotted to different services based on their ranks and preference. The top rankers in the merit list join the IAS or IFS and then the IPS. The candidates who get into the merit list with low position are brought and classified either under Group 'A ' or Group 'B ' as the case may be, but having regard to their ranks in the order of merit and the selection of candidates in Group 'A ' or Group 'B ' is based within the zone of eligibility. It may be noted that out of total 27 services/posts, as per notification dated 30.12.1989, the first three, namely, IAS, IFS and IPS are All India Services. Of the rest, from IV to XIX are Central Services Group 'A ' and the remaining XX to XXVII are Group 'B ' services. For all these services, the recruitment is made by combined competitive CSE. Since the pleadings in all the appeals are substantially of the same paradigm and the issues of considerable impor tance raised are homogeneous and as the principal arguments were advanced in the same line except with some slight variation with regard to some particular issues relating to certain appeals and also the reply was commonly made, we propose to dispose of all the appeals by this common judg ment. 70 We may now in the above background of the history of the scheme of the Civil Services, proceed to consider the var ious contentions advanced by the respective parties on the validity of the impugned second proviso to Rule 4 of the C.S.E. Rules and for that purpose we, in order to have a proper understanding and appreciation of the scope, object, ambit and intent of the impugned proviso, shall re produce the relevant Rules 4, 8 and 17 and Regulation 4(iii a) of the I.A.S. (Appointment by Competitive Examination) Regula tions, 1955. CSE RULES Rule 4: "Every candidate appearing at the examination, who is otherwise eligible, shall be permitted three attempts at the examina tion, irrespective of the number of attempts he has already availed of at the IAS etc. Examination held in previous year. The re striction shall be effective from the Civil Services Examination held in 1979. Any at tempts made at the Civil Services (Prelimi nary) Examination held in 1979 and onwards will count as attempts for this purpose: Provided that this restriction on the number of attempts will not apply in the case of Scheduled Castes and Scheduled Tribes candi dates who are otherwise eligible: Provided further that a candidate who on the basis of the results of the previous Civil Services Examination, had been allocated to the I.P.S. or Central Services, Group 'A ' but who expressed his intention to appear in the next Civil Services Main Examination for competing for IAS, IFS, IPS or Central Serv ices, Group 'A ' and who was permitted to abstain from the probationary training in order to so appear, shall be eligible to do so, subject to the provisions of Rule 17. If the candidate is allocated to a service on the basis of the next Civil Services Main Examina tion he shall join either that Service or the Service to which he was allocated on the basis of the previous Civil Services Examination failing which his allocation to the service based on one or both examination, as the case may be, shall stand cancelled and notwith standing anything contained in Rule 8, a candidate who accepts allocation to a Service and is appointed to a service shall not be eligible to appear again in the Civil Services Examination unless he has first resigned from the Service. 71 NOTE: 1. An attempt at a preliminary examination shall be deemed to be in attempt of the Exami nation. If a candidate actually appears in any one paper in the preliminary Examination he shall be deemed to have made an attempt at the examination. Notwithstanding the disqualification/can cellation of candidature the fact of appear ance of the candidate at the examination will count as an attempt. Rule 8: A candidate who is appointed to the Indian Administrative Service or the Indian Foreign Service on results of an earlier examination before the commencement of this examination and continues to be a member of that service will not be eligible to compete at this examination. In case a candidate has been appointed to the IAS/IFS after the Preliminary Examination of this examination but before the Main Examina tion of this examination and he/she shall also not be eligible to appear in the Main Examina tion of this examination notwithstanding that he/she has qualified in the Preliminary Exami nation. Also provided that if a candidate is appointed to IAS/IFS after the commencement of the Main Examination but before the result thereof and continues to be a member of that service, he/she shall not be considered for appointment to any service/post on the basis of the re sults of this examination. Rule 17: Due consideration will be given at the time of making appointments on the results of the examination to the preferences ex pressed by a candidate for various services at the time of his application. The appointment to various services will also be governed by the Rules/Regulations in force as applicable to the respective Services at the time of appointment. 72 Provided that a candidate who has been ap proved for appointment to Indian Police Serv ice/Central Service, Group 'A ' mentioned in Col. 2 below on the results of an earlier examination will be considered only for ap pointment in services mentioned against that service in Col. 3 below on the results of this examination. Service to which approved Service for which No. for appointment eligible to compete 1 2 3 1. Indian Police Service. I.A.S., I.F.S., and Central Services, Group 2. Central Services, Group 'A ' I.A.S.,I.F.S. and I.P.S. Provided further that a candidate who is appointed to a Central Service, Group 'B ' on the results of an earlier examination will be considered only for appointment to I.A.S., I.F.S., I.P.S. and Central Services, Group 'A '. IAS (Appointment by Competitive Examination) Regulations, 1955 Regulation 4: Conditions of Eligibility: In order to be eligible to compete at the examination, a candidate must satisfy the following conditions, namely: (i) Nationality. . . . . (ii) Age . . . . . . (iii) Educational Qualifications. . . (iii a) Attempts at the examination Unless covered by any of the exceptions that may from time to time be notified by the Central Gov ernment in this behalf, every candidate ap pearing for the examination after 1st January 1979, who is otherwise eligible, shall be permitted three attempts at the examination;. 73 and the appearance of a candidate at the examination will be deemed to be an attempt at the examination irrespective of his disquali fication or cancellation, as the case may be, of his candidature. Explanation An attempt at a preliminary examination shall be deemed to be an attempt at the examination, within the meaning of this rule. questions 1 to 6: At the threshold we will take up the main question about the validity of the second proviso to Rule 4 of the C.S.E. Rules of 1986, which proviso is an additional one to the first proviso to Rule No. 4 and which applies only to the I.P.S and Central Services, Group 'A ' selectees. This provi so consists of two parts of which the first part enumerates certain conditions on the fulfillment of which alone, an allottee to IPS or Central Services Group 'A ' on the basis of the results of the previous CSE will become eligible to re appear in the next CSE (Main) to improve his prospect with the hope of getting better position next year and joining in one of the more preferred services, namely, IAS, IFS, IPS or Central Services Group 'A ' subject to the condi tions, enumerated in Rule 17 of CSE Rules. As per the first part of the proviso, the prerequisite conditions which are sine qua non are as follows: A Candidate who on the basis of the results of the previous CSE; i) should have been allocated to the IPS or Central Services Group 'A '; ii) The said candidate should have expressed his intention to appear in the next Civil Service Main Examination for competing for IAS, IFS, IPS or Central Services Group 'A ' subject to the provisions of Rule 17; iii) The said candidate should have been permitted to abstain from the Probationary Training in order to so appear. The conditions in the second part of the proviso are as follows: 1) If a candidate (who is permitted to appear in the next CSE (Main) on fulfillment of the conditions, enumerated in the first part of this proviso) is allocated to a service on the basis of the next Civil Service (Main) Exami nation, he should either join 74 that service or the service to which he has already been allocated on the basis of the previous CSE; 2) If the candidate fails to join either of the services as mentioned in the first condi tion of this second part then his allocation to the service based on one or both examina tions, as the case may be, shall stand can celled; and 3) Notwithstanding anything contained in Rule 8, a candidate a) who accepts allocation to the service and b) who is appointed to a service shall not be eligible to appear again in CSE unless he has first resigned from the service. The sum and substance of the above proviso is that a candidate who has already been allocated to the IPS/Central Services Group 'A ' and who in order to improve his efficacy of selection to higher civil service, expresses his inten tion to appear in the next CSE (Main) for competing for IAS, IFS, IPS or Central Services Group 'A ' and who has been permitted to abstain from the Probationary Training in order to do so, will become eligible to appear in the next CSE (Main) but subject to the provisions of Rule 17, and that the said candidate when allocated to a service on the basis of the next Civil Services (Main) Examination can either join that service or the service to which he has already been allocated on the basis of the previous CSE and that if he fails to join either of the services, his allocation based on one or both the examinations, as the case may be, will stand cancelled. Further, notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and is appointed to that service shall not be eligi ble to appear again in the CSE unless he has first resigned from the service. In other words, a candidate failing within the ambit of this proviso can appear in the CSE for all the permitted attempts subject to his age limit if he intends to appear again in the CSE provided he first resigns from the service which he accepts on allocation and to which he is appointed. The restriction/embargo contained in Rule 17 is, if a candidate has been approved for appointment to IPS, and expresses his intention to appear in the CSE (Main) for higher civil service, the services for which he is eligible to compete are IAS, IFS and Central Services Group 'A '. Similarly, a candidate who has been approved for appointment to the Central Services Group 'A ' and expresses his inten tion to appear in the next CSE (Main), the services to which he will be eligible to compete are IAS, IFS and IPS. The second proviso to Rule 17 provides that a candidate who is appointed to a Central Services Group 'B ' on the results of an earlier examination will be considered for appointment to IAS, IFS, 75 IPS and Central Services Group 'A '. The impugned second proviso to Rule 4, as we have al ready pointed out, has been introduced by notification No. 13016/4/86 AIS (I) dated 13.12.1986. The circumstances which necessitated and compelled the introduction of the above second 'proviso to Rule 4 was due to the receipts of various representations and frequent com plaints from the Academies and Training Insti tutes by the Government informing that the candidates who, taking advantage of the oppor tunity of mobility from one service to anoth er, were intending to appear in the next CSE (Main) in the hope of getting a better posi tion and in a more preferred service were neglecting their required training programmes whereunder they had to undergo specialised training and acquire the necessary potential to perform their tasks in the service to which they have been allocated and for which train ing, the Government incurs huge expenditure. Therefore, the Government in order to overcome the problem of indiscipline amongst the proba tioners undergoing training, requested the kothari committee for making a comprehensive survey on the different aspects of the re cruitment scheme and to submit a report with its recommendations on the recruitment policy and selection methods so that the candidates who are selected and allocated to a service and sent for training may not take enmass leave for preparing and appearing in the next CSE by neglecting and pretermitting their training programmes and thereby creating a vacuum in the service for considerable time. The said kothari committee, after deeply examining this serious problem, submitted its report, the relevant part of which is as follows: "3.59. It may further be observed that the existing system which permits that candidates qualifying for and joining the police or the Central Services, may appear the Civil Serv ices Examination to improve their career opportunities, has come in for serious criti cism from the National Academy of Administra tion and the respective employing departments. They complain that such probationers neglect their training at both the Academy and the Departmental Training Institutions until they exhaust the admissible number of chances. The present practice obviously is not desirable. The 76 number of such cases would be very small with the proposed restriction on the total number of attempts permitted to a candidate. Even so, we think it wrong that the very first thing a young person should do in entering public service is to ignore his obligations to the service concerned, and instead spend his time and energy in preparation for re appearing at the UPSC examination to improve his prospect. This sets a bad example and should be discour aged. We recommend that commencing from the 1977 examination candidates once appointed to the All India or Central Services (Class I) should not be permitted to re appear at a subsequent examination without resigning from service. (On introduction of Phase II of the Civil Services Examination Scheme, candidates joining the Foundation Course will not be permitted to re appear at the Main Examina tion.) ' ' The Thirteenth Report of the Estimates Committee (1985 86) also submitted its report on this aspect of the matter observing: "The committee urge upon the Government to review their decision regarding allowing the probationers to reappear in the Civil Services Examination to improve their prospects. If it is still considered necessary to allow this, the Committee suggest that it may be limited to only one chance after a person enters a Civil service. " The Central Government after considering the recommenda tions of the above Committees regarding allowing probation ers allocated to Civil Services to appear in the next CSE (Main), addressed the UPSC to initiate a review of the new system of CSE in pursuance of the recommendations of the Estimates Committee and thereafter, a meeting of all the cadre controlling authorities was convened by the Government and based on the consensus arrived at the meeting, Rules 4 and 17 of the Civil Services Examination Rules were amended by inserting the new provisos. In this regard, it will be worthwhile to refer to Arti cle 51 A in Part IV A under the caption 'Fundamental Duties ' added by the Constitution (42nd Amendment) Act, 1976 in accordance with the recommendations of the Swaran Singh Committee. The said Article contains a mandate of the Con stitution that it shall be the duty of every citizen of India to do the various things specified in Clauses (a) to (j) of which clause (j) commands that it is the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement." 77 In our view, the effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the top most service of the country is not wasted and does not become fruitless during the training period is in consonance with the provisions of Article 51 A (j). The Constitution of India has laid down some basic principles relating to public services in Part XIV entitled 'Services under the Union and the State ' which has two Chapters, namely chapter I on "Services" covering Articles 308 to 314 of which Article 314 is now repealed by the Twentyeighth Amendment Act, 1972 and Chapter II on "Public Service Commissions" covering Articles 315 to 323. We feel that it is not necessary to deal with the constitutional provisions relating to the executive power of the Union under Article 53 of the Constitution or the extent of the executive power of the Union under Article 73 of the Consti tution or recruitment and condition of service of persons serving the Union or the State as contemplated under Article 309 of the Constitution of India since it is not the case of the appellants that either the introduction of the proviso is in violation of any of the provisions of the constitution or the proviso suffers for want of jurisdiction or by im proper and irregular exercise of jurisdiction. However, incidentally Mrs. Chopra urged that the second proviso is bad since the authorities have stepped out of the constitu tional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the Houses of the Parliament. This argument has to be simply mentioned to be rejected because the proviso has been intro duced by the Central Executive Authority under the powers flowing from Article 73 (1) (a) of the Constitution, accord ing to which the executive power of the Union subject to the provisions of the Constitution shall extend to the matters with respect to which Parliament has power to make laws, but of course subject to the proviso made thereunder and further this submission casually made was neither amplified nor pursued. Needless to point out that whilst by virtue of clause 1 (a) of Article 73, the Union executive whose power which is co extensive with the legislative power of Parlia ment can make laws on matters enumerated in List I (Union List) and List II (Concurrent List) to the Seventh Schedule of the Constitution, under Article 162 of the Constitution, the executive power of the State executive which is co extensive with that of the State legislature can make laws in respect of matters enumerated in List III (State List) and also in respect of matters enumerated in List II (Con current List), subject to the provisions of the Constitu tion. In the present case, the central executive authority has not either expressly or impliedly changed the policy of the Government by exercising unreasonable and arbitrary discretion and the present Rule 4 78 with its newly added second proviso does not repeal the essential features of the pre existing Rule 4 but only limits the ambit of the operation of Rule 4 under a given situation. Hence, there is no substance in contending that the second proviso is bad and that the central executive authority has transgressed the constitutional limits. However, the validity of second proviso the Rule 4 is challenged on Constitution about is violative of Article 14 ground that which we will deal at the later part of the judgment. We feel that it would be appropriate, in this context, to recall the observations of this Court in L.I.C. of India vs Escorts Ltd., ; at page 1403 = ; The observation reads thus: "When construing statutes enacted in the national interest, we have necessarily to take the broad factual situations contemplated by the Act and interpret its provisions so as to advance and not to thwart the particular national interest whose advancement is pro posed by the legislation. " In the above background, we shall now advert to the arguments advanced on behalf of the appellants. Mr. P.P. Rao, senior counsel appearing for the appel lants forcibly and fervently contended that the second proviso to rule 4 of the impugned notification is ultra vires clause (iii a) of Regulation 4 of the Regulations, 1955 inasmuch as the power to notify exceptions does not include the power to make ineligible the candidates who are "otherwise eligible" in terms of Clauses (i), (ii) and (iii) of Regulation 4. In other words, all candidates, who satis fy the requirements of nationality, age and educational qualifications prescribed in clauses (i) to (iii) of Regula tion 4, are entitled to the maximum number of attempts prescribed in clause (iii a) which initially was three attempts, since raised to four attempts w.e.f. 1.2.90. He further submits that the expression 'in this behalf ' appear ing in the said clause (iii a) refers only to the number of attempts of candidates otherwise eligible in terms of clauses (i) to (iii) of Regulation 4 and that the obvious intention in conferring the power on the Central Government to 'notify exceptions 'in his behalf of candidates 'other wise eligible ' was to enable the Government to increase the number of attempts in deserving cases, such as candidates belonging to Scheduled Castes and Scheduled Tribes and other weaker sections including physically handicapped category and that consequently the Central Government has no power to add more conditions of eligibility to those stipulated in Regulation 4 itself. 79 According to him, the second part of the impugned proviso to Rule 4 of CSE Rules which insists that a candidate who was permitted to abstain from probationary training in order to appear at the next Civil Services (Main) Examination and who accepted the allocation to a service subsequently and is appointed to the service "shall not be eligible to appear again in the CSE (Main) unless he first resigns from the Service and in other words it declares a candidate, who is otherwise eligible in terms of Regulation 4 as ineligible unless he first resigns from the service. This additional condition of eligibility, according to him, is clearly beyond the, scope of the limited power to notify exceptions to the number of attempts prescribed and, therefore ultra vires Regulation 4 (iii a). Mr. Kapil Sibal, the Learned Additional Solicitor Gener al presented a plausible argument countering the pleadings of Mr. P.P. Rao and drew our attention to Rule 7 of IAS (Recruitment) Rules of 1954 which deals with the recruitment by competitive examination, and sub rule (2) which states that an examination, namely, the competitive examination for recruitment to the service shall be conducted by the Commis sion in accordance with such regulations as the Central Government may from time to time make in consultation with the Commission and State Governments. According to him, the permissible number of attempts that a candidate can avail is also a condition of eligibility because the object is for a dual purpose, namely, 'to get the best and to retain the best ', and that Regulation 4 (iii a) should be read with Rule 4 of CSE as its part. He continues to state that under Article 73 of the Constitution, subject to the provisions of the Constitution, the Central Government in exercise of its executive power can regulate the manner in which the right of a candidate in appearing for the competitive examination is to be exercised and, therefore, the restriction imposed in the second proviso to Rule 4 of CSE Rules is in no way ultra vires clause (iii a) of Regulation 4 of Regulations, 1955. The source of power for the Central Government for making rules and regulations for 'Recruitment and the Condi tions of Services of Persons appointed to All India Serv ices ' in consultations with the Government of States con cerned as well making regulation under or in pursuance of any such right is derived from Section 3 of the All India Services Act, 1951. The Regulations, 1955 were made by Central Government in pursuance of rule 7 of IAS (Recruitment) Rules of 1954 in consultation with the State Governments and the Union Public Service Commission. Clause (iii a) of Regulation 4 was substituted vide Department of Personnel A & R Notification No. 11028/1/78/AIS dated 13.12.1978 and the latter part of which by another notification dated 23.11.1988. We are concerned only 80 with the earlier part of the said clause as per which unless covered by any of the exceptions that may from time to time be notified by the Central Government, in this behalf, every candidate appearing for the examination after 1st January 1979, who is otherwise eligible, shall be permitted three attempts at the examination. If Rule 4 of CSE Rules is examined in juxtaposition of clause (iii a) of Regulation 4, it is clear that both rule 4 of CSE Rules and Clause (iii a) of the Regulation 4 show that every eligible candidate appearing at the CSE should be permitted three attempts at the examination. As we have pointed out in the earlier part of this judgment, the attempts are now increased to 4 under Rule 4 of the CSE Rules. This increase of attempts by the Government is by virtue of its power which flows under Article 73 of the Constitution of India. The eligibility of a candidate to appear in the CSE with regard to nationality, age and educational qualifications is given under clauses (i) to (iii) of Regulation 4 but the Government by exercise of its executive power has imposed certain restrictions under some specified circumstances. Even today, in the normal course, every eligible candidate can appear in the examination for all the permissible attempts and the re striction of attempts is not applicable in the case of SC/ST who are otherwise eligible but subject to their upper age limit. A plain and grammatical reading of clause (iii a) of Regulation shows that if the number of attempts are covered by any of the exception that may from time to time be notified by the Central Government in the behalf, then the notification will become enforceable and only in the ab sence of such notification, every candidate normally can appear for all the permitted attempts at the examination whether three or four. The impugned second proviso does not restrict or put an embargo on the number of attempts in the normal course. But the restriction is only when the conditions enumerated in the impugned proviso are satisfied. In order to appreciate and understand the restriction imposed, in its proper perspective, we shall refer to cer tain decisions of this Court cited by both the parties, firstly with reference to the interpretation of statutes and second with regard to the construction of a proviso in relation to the subject matter covered by the section/rule to which the proviso is appended. Before we cogitate and analyse this bone of contention in some detail, it will be convenient at this stage to pore over some of the well established rules of construction which would assist us to steer clear of the impasse entertained by the learned counsel, according to whom some complications are created by the impugned notification being ultra vires clause (iii a) of Regulation 4 of Regulations, 1955. Maxwell on the "Interpretation of Statutes" 10th Edition page 7 states thus: " . . . if the choice is between two interpretations, the nar 81 rower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. " In "Principles of Statutory Interpretation" by Justice G.P. Singh, 4th Edition (1988) at page 18, it is stated thus: "it is a rule now firmly established that the intention of the legislature must be found by reading the statute as a whole". It is said in "Craies on Statute Law, 5th Edition" as follows: "Manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly to be avoided." In the same text book, 6th Edition at page 89, the following passage is found: "The argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are alternative methods of constructions. " Viscount Simon in King Emperor vs Benoari Lal Sharma, has said thus: "In construing enacted words, the Court is not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used. " In Wardurton vs Loveland, [1832] 2 D & CH. (H.L.)480 at 489, it is observed that: "Where the Language of an Act is Clear and explicit, we must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature". 82 See also Suffers vs Briggs, [1982] I A.C.1, 8. This Court in Commissioner of Income Tax vs section Teja Singh; , has expressed that a con struction which would defeat the object of legislature must, if that is possible, be avoided. See also M. Pentiah and others vs Muddala Veeramallappa and Others, ; Desai, J speaking for the bench in Lt. Col. Prithi Pal Singh Bedi etc. vs Union of India & Ors., at 404 has pointed out as follows: "The dominant purpose in construing a statute is to ascertain the intention of the Parlia ment. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt liter al construction if it does not lead to an absurdity. " The Constitution Bench of this court in A.R. Antulay vs R.S. Nayak; , at 936 has observed thus: "It is a well established canon of construc tion that the Court should read the section as it is and cannot rewrite it to suit its con venience; nor does any canon of construction permit the court to read the section in such manner as to render it to some extent otiose." The Supreme Court in Maharashtra State Board of Second ary and Higher Secondary Education and another vs Paritosh Bhupesh Kurmarsheti etc. ; , ruled that the well established doctrine of interpretation is "That the provisions contained in a statutory enactment or in rules/regulations framed thereunder have to be so construed as to be in harmony with each other and that where under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise cover the said topic. " In Philips India Ltd. vs Labour Court, Madras and Ors., , it is observed: "No canon of statutory construction is more firmly established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which 83 spoken of as construction ex visceribus actus. " It has been held by this Court in Balasinor Nagrik Cooperative Bank Ltd. vs Babubhai Shankerlal Pandya and others. [1987] 1 SCC at 608 as follows: "It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section". In Dr. Ajay Pradhan vs State of Madhya Pradesh and Others, ; at 518, the Court has registered its view in the matter of construing a statute thus: "If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense and give them full ef fect. The argument of inconvenience and hard ship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there arc alternative methods of construction. Where the language is explicit its consequences are for Parlia ment, and not for the courts, to consider. " We think, it is not necessary to proliferate this judg ment by citing all the judgments and extracting the textual passages from the various Text Books on the principles of Interpretation of statutes. However, it will suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, we are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statutes/Rules/ Regulations relating to the subject matter. Added to this, in construing a statute, the Court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intend ment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation. A proviso to a Section/Rule is expected to except or qualify something in the enacting part and presumed to be necessary. Coming to the 84 broad general rule of construction of the proviso Maxwell on "The Interpretation of statute" in the 11th edition at page 155 has quoted a passage from Kent 's Commentary 0n American Law, 12th Edn. Vol. 1, 463n, reading thus: "The true principle undoubtedly is, that the sound interpretation and meaning of the stat ute, on a view of the enacting clause, saving clause and proviso, taken and construed to gether is to prevail. " Maxwell in his 12th Edition has quoted a passage from Att. Gen. vs Chelsea Waterworks Co., [1731] Fitzg. 195 which reads that if a proviso cannot reasonably be construed otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that "it speaks that last intention of the makers". It is pointed out in Piper vs Harvey, [1958] 10.B.439 that if, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect. In R. vs Leeds Prison (Governor), Ex p. Stafford it is pointed out thus: "The main part of a section must not be con strued in such a way as to render a proviso to the section redundant. " A Constitution Bench of this Court in Ram Narain Sons Ltd. and Ors. vs Asstt. Commissioner of Sales tax and Ors. ; , has made the following observations: "It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as proviso and to no other." Another Constitution Bench in Abdul Jabar Butt & Another vs State of Jammu and Kashmir, ; held that it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. See also Commissioner of Income Tax vs section Teja Singh; , 85 Kapur, J speaking for the bench of this Court in The Commissioner of Income Tax; Mysore, Travancore Cochin and Coorg, Bangalore vs The Indo Mercantile Bank Limited, ; reiterated the view expressed by Bhagwati, J as he then was in Ram Narain Sons Ltd. vs Assistant Com missioner of Sales Tax; ; at 493 and the observations by Lord Macmillan in Madras & Southern Mahratta Railway Co. vs Bezwada Municipality, 1944 L.R.71 I.A. 113, 122 and laid down the sphere of a proviso thus: "The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its neces sary effect. (Vide also Corporation of the Ci.tV of Toronto vs Attorney General for Canada, ,37 . " M/s Mackinnon Mackenzie & Co. Ltd. vs Audrey D 'Cost and Another, [1987] 2 SCC 469 may also be referred to. When the impugned second proviso to Rule 4 of the CSE Rules is interpreted in its grammatical meaning and cognate expressions and construed harmoniously with the substantive rule in the light of the above decisions of this Court as well as the views expressed by various authors in their Text Books on this subject, it is pellucid that the said proviso only carves out an exception to Rule 4 of the CSE Rules in given circumstances and under specified conditions and, therefore, the second proviso cannot be read in isolation and interpreted literally. On the other hand the substantive Rule 4 is to be read in conjunction with the two provisos appended thereto so as to have a correct interpretation. In the proviso, in dispute, there are no positive words or indications which would completely exclude the operation of the substantive rule the spirit of which is reflected in Regulation 4 of the Regulations, 1955. In fact, Rule 4 as stood till 1986, in its normal course, allowed a candidate to appear for three attempts, since increased to 4 for 1990 and 1991 Examinations. But the restriction is imposed by the second proviso only under certain circumstances as repeated ly indicated above. Although the notification of 1986 introducing the impugned proviso, no doubt, has to be strictly construed, the Court cannot overlook the very aim and object of the proviso thereby either defeating its purpose or rendering it redundant or 86 inane or making it otiose. Judged from any angle, we are not impressed by the contention of Mr. P.P. Rao that there is a violent breach of the provisions of the substantive Rule 4 of CSE Rules and Regulation 4 (iii a) and we are not able to persuade ourselves to hold that the impugned second proviso either subverts or destroys the basic objectives of Rule 4 and that it is ultra vires. In this connection, it may be noted that the restric tion or embargo, as the one under consideration is not only placed on the candidates who on the basis of the result of the previous CSE had been allocated and appointed to IPS or Central Service Group 'A ' but also on the candidates ap pointed in the higher echelon of Civil Service, which we will presently deal with. There is a far more restrictive rule in existence, namely Rule 8 of the CSE Rules according to which a candidate who is appointed to the Indian Adminis trative Service (IAS) or the Indian Foreign Service (IFS) on the result of an earlier examination before the commencement of the ensuing examination and continues to be a member of that service will not be eligible to compete at the subse quent examination,. even if he/she is disillusioned and wants to switch over. In other words, this rule precludes the candidates who have been appointed to the IAS or IFS, from sitting in the ensuing examination while in service. Further, this rule states that in case, a candidate has been appointed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examina tion, but before the Main examination, that candidate, if continues to be a member of that service, shall not be eligible to appear in the ensuing main examination notwith standing that the said candidate has qualified himself in the preliminary examination. Similarly if a candidate is appointed to the IAS or IFS after the commencement of the Main Examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointments to any service/post on the basis of the result of this examination. The purpose for incorporating this uncompromising and strin gent provision is that the candidates appointed to the IAS and IFS are required to man the key positions both in the Central and State Services wherein the appointees have to combine their intellectual capacity and the requisite traits of personality and also to exhibit higher intellectual proficiency and leadership. Thus Rule 8 keeps up and main tains the phenomenon of the upper civil service, run under our constitution with all enduring features and facets of the said service on All India basis. But there is no bar for a candidate who is appointed to the lAS/FS resigning from that service and sitting in the examination for IPS or any Central Service Group 'A '. Under Rule 4 of CSE Rules not withstanding anything contained in Rule 8, a candidate who accepts allocation to a service and appointed to that 87 service shall not be eligible to appear again in the CSE unless he first resigns from that service. In other words, a candidate who is allocated and appointed to a service can sit in the ensuing examination provided he first resigns from that service. This restriction, in our view, is a reasonable one in order to achieve the desired result in the background of the situation and circumstances about which we have elaborately discussed albeit. In conclusion, we hold that the second proviso to Rule 4 of CSE Rules does not travel beyond the intent of the main rule putting any unjustifiable embargo and that the proviso is not ultra vires Regulation 4 (iii a) of Regulations 1955 on the ground it makes the candidates ineligible who are otherwise eligible in terms of clauses (i) to (iii) of the said Regulation and that the proviso to Rule 17 is not invalid. An enactment is never to be held invalid unless it be, beyond question, plainly and palpably in excess of legisla tive power or it is ultra vires or inconsistent with the statutory or constitutional provisions or it does not con form to the statutory or constitutional requirements or is made arbitrarily with bad faith of oblique motives or op posed to public policy. In our considered opinion, the second proviso to Rule 4 of CSE Rules cannot be held to be invalid on any of the grounds mentioned above. The next question that has arisen for consideration is, how far the principle of reasonable restriction can be applied in the formulation of the rules, keeping the rele vance of the recruitment scheme to the civil service. Nei ther an omnibus answer or a simplistic solution would carry us far to face the public service reality in the modern state, the governing consideration of which is the context of actual situation, circumstances, resources and the socie tal goals of the particular State/country. The further argument advanced in Civil Appeal Nos. 5506 5525 of 1990 (as appears from the written submission made by Mr. C.N. Sreekumar) is that on a correct interpreta tion of the impugned second proviso, the last clause of which reads "such candidate who accepts the service shall not be eligible to appear again in the Civil Services Exami nation unless he first resigns from the service" refers to only candidates, who on the basis of the result of the previous CSE had been allocated to the Central Services Group 'A ' but who expressed their intention to appear in the next CSE (Main) for competing for IAS, IFS, IPS or Central Services Group 'A ' and who are permitted to abstain from the probationary training in order to so appear and who joined Group 'A ' service subsequently on allocation either on the basis of the previous examination or the subsequent examina tion. According to him, in other words, the candidates who did not avail the benefit of abstaining from the probation ary training 88 with the permission of the Government in order to appear at the next Civil Services (Main) Examination do not fail within the scope of the impugned restriction and they cannot be asked to resign as a condition precedent to their appear ing again in the CSE. This tenuous argument does not appeal to us. Firstly the expression "such candidate", is not used in the proviso, on the other hand, the words used are "a candidate" (vide publication of Gazette of India dated 13 12 86). Secondly the last part of the proviso, as it stands, reads "a candidate who accepts allocation to a service and is appointed to a service shall not be eligible to appear again in the Civil Services Examination unless he has first resigned from the service. " Thirdly a correct and proper reading of the last limb of the proviso clearly demonstrates that the expression "a candidate" refers only to the candidate, mentioned in the earlier part of the proviso. Lastly, if such an interpretation is to be given on the wrong reading of the proviso, then the whole object of the proviso will be defeated. Question No. 7 Mrs. C.M. Chopra scathingly attacks the judgment of the Tribunal inter alia contending that the protection guaran teed to the candidates belonging to Scheduled Castes and Scheduled Tribes under the Constitution more particularly under Article 335 of the Constitution of India cannot be taken away by an arbitrary executive action by introducing the second proviso, thereby reducing the number of permissi ble attempts for appearing in the CSE hitherto enjoyed by such candidates; that the right statutorily and constitu tionally vested on the SC/ST candidates, permitting them to make unlimited attempts, of course, subject to the upper age limit cannot be easily whittled down and that the second proviso is an independent proviso, having no relation to the first proviso and apriori it cannot control and prevail upon the first proviso which declares "that this restriction on the number of attempts will not apply in the case of Sched uled Castes and Scheduled Tribes who are otherwise eligible." According to her, the reservation policy guaran teed to the SC/ST candidates cannot be obliterated by an unreasonable and arbitrary executive action. No doubt, it is true that while the substantive Rule 4 of the CSE Rules permits every candidate to appear for three attempts at the examination which is now increased to four the first proviso to this rule states that this restriction on the number of attempts at the examination is not applica ble in the case of SC/ST candidates who arc otherwise eligi ble. However, even in the case of SC/ST candidates, there is a specific restriction so far as the upper age limit is concerned as envisaged under Rule 6 (b) of the CSE Rules. Regulation 7(2) of Regulation, 1955 states that the 89 candidates belonging to any of the Scheduled Castes or the Scheduled Tribes may, to the extent of the number of vacan cies reserved for the Scheduled Castes and Scheduled Tribes cannot be filled on the basis of the standard determined by the Commission under sub regulation (1) be recommended by the Commission by a relaxed standard to make up the defi ciency in the reserved quota, subject to the fitness of these candidates for selection to the Service, irrespective of their ranks in order to merit at the examination. Sub Regulation (1) of Regulation 7 reads that subject to the provision of Sub Regulation (2) the Commission (U.P.S.C.) shall forward to the Central Government a list arranged in order of merit of the candidates who have qualified by such standard as the Commission may determine. In the normal course, a candidate belonging to SC/ST category can enjoy all the benefits under the rules and regulations. But the restriction imposed under the second proviso is only for a specified category of candidates by treating all such candidates at par and without making any exception to the candidates belonging to SC/ST. The submis sion made by Mrs. Chopra that the second proviso is an independent one does not merit consideration because the second proviso to Rule 4 begins with the words 'provided timber. " which expression would mean that a strict com pliance of the second proviso is an additional requirement to that of the substantive rule 4 and the first proviso. The expression "provided further" spells out that the first proviso cannot be read in isolation or independent of the second proviso but it must be read in conjunction with the second proviso. To put in other words, once the candidates belonging to SC or ST get through one common examination and interview test and are allocated and appointed to a service based on their ranks and performance and brought under the one and the same stream of category, then they too have to be treated among all other regularly and lawfully selected candidates and there cannot be any preferential treatment at that stage on the ground that they belong to SC or ST, though they may be entitled for all other statutory benefits such as to the relaxation of age, the reservation etc. The unrestricted number of attempts, subject to the upper age limit, is available to the SC/ST candidates in the normal course but that is subject to the second proviso because when once they are allocated and appointed along with other candidates to a category/post, they are treated alike. Ramaswami, J speaking for the Constitution Bench in C.A. Rajendran vs Union of India & Ors., ; at page 733 while interpreting Article 16(4) of the Constitution of India observed thus: 90 "Our conclusion therefore is that article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words, Art.16(4) is an enabling provision and confers a discre tionary power on the state to make a reserva tion of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State. We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case. " A seven Judges Bench in State of Kerala vs N.M. Thomas; , before which some important questions arose with regard to the intent of Article 16 of the Constitution, referred to and relied upon the observation in Rajendran 's case holding that reservation is not a constitutional com pulsion, but is a discretionary one. In that case Krishna lyer, J agreeing with the majority view expressed his opin ion thus: "The State has been obligated to promote the economic interests of harijans and like back ward classes, Articles 46 and 335 being a testament and Articles 14 to 16 being the tool kit, if one may put it that way. To blink at this panchsheel is to be unjust to the Constitution. " Further, the learned Judge held: "Indeed, Article 335 is more specific and cannot be brushed aside or truncated in the operational ambit vis a vis Article 16(1) and (2) without hubristic aberration." In Akhil Bharatiya Soshit Karmachari Sangh (Railway) vs Union of India & Others, [1981]1 SCC 246, Krishna lyer, J observed that Article 16(4) is not a jarring note but auxil iary to fair fulfilment of Article 16(1) and further said, "Article 16(4) is not in the nature of an exception to Article 16(1). It is a facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with spe cial reference to an underprivileged and deprived class of citizens to whom egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality). See also M.R. Balaji vs State of Mysore, [1963] Supp. 1 SCR 439, Triloki Nath vs State of J&K, ; and T. Devadasan vs Union of India, ; and Comp troller and Auditor General of India vs 91 K.S. Jagannathan; , at 684 (para 6). The Constitution, no doubt, has laid a special responsi bility on the Government to protect the claims of SC/ST in the matter of public appointments under various Constitu tional provisions of which we shall presently refer to a few. Article 16(4), as manifested from the various decisions of this court referred to hereinbefore, is an enabling provision conferring a discretionary power on the State for making any provision or reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the service under the State. The expression 'backward class ' obviously takes within its fold people belonging to SC and ST (vide Janki Prasad vs State of J&K, ; Clause 4 of Article 16 has to be interpreted in the back ground of Article 335 as ruled by this Court in General Manager vs Rangachari, ; and in Rajendran 's case referred to above. Article 335 enjoins that the claims of the members of the SC and ST shall be taken into consid eration, consistently with the maintenance of efficiency of administration, in the making of appointments to services or posts in connection with the affairs of the Union or of a State. Article 320(4) makes it clear that the Public Service Commission is not required to be consulted as respects the manner in which any provision referred to in article 16(4) may be made or as respects the manner in which effect may be given to Article 335. The query before us is not in respect of the reservation of backward classes or in respect of the claims of SC and ST services/posts, but it is whether the candidates belonging to SC and ST are entitled to any exception from the opera tion of the proviso. The answer to the above query would be an negative as we have aforesaid. It may be true, as fervently submitted by Mrs. Chopra there may be some hard cases, but the hard cases cannot be allowed to make bad law. Therefore, in the case on hand, as long as the second proviso does not suffer from any vice, it has to be construed, uniformly giving effect to all those falling under one category in the absence of any specific provision exempting any particular class or classes of candidates from the operation of the impugned proviso and no one can steal march over others falling under the same category. Hence, the right of candidates belonging to SC and ST competing further to improve their career opportunities is limited to the extent permissible under the second provi so to Rule 4 read with Rule 17 of the C.S.E. Rules. For the aforementioned reasons, we find no merits in the submission. 92 of Mrs. Chopra that the second proviso is not applicable to the candidates belonging to SC or ST. Mr. Gopal Subramanian appearing on behalf of some of the appellants supplemented by the arguments of other counsel, stating that the very structure of the recruitment policy is itself disturbed to the great disadvantage of the candidates who since then have been enjoying the right to appear for 3 attempts as conferred by the substantive Rule 4 and that one of the present restrictions that the candidates should severe from the service, if intends to appear for the third time, after he has been allocated and appointed to a service is unjust, unreasonable and it seriously transgresses on the main provision and virtually interdicts the candidates from availing their statutorily conferred and protected right. Therefore, such a serverance of status from the service is ex facie wrong, even if one can understand losing of senior ity. We have already discussed this interpellation in exten so while dealing with similar contentions and our considered view expressed albeit will clearly answer this contention. Hence, we hold that there is no question of severance of status as we have come to the conclusion that the restric tion imposed by the impugned proviso cannot be said to be unjust, unreasonable or arbitrary or change of any policy and moreover, the spirit of the main rule is not in any way disturbed. In the result, we conclude that there is neither any tenable reason nor any logic in the above submission. Question No. 8 Then a mordacious criticism was unleashed by all the learned counsel appearing on behalf of the appellants inter alia contending that the second proviso which is an administrative instruction is highly arbitrary and irration al having no nexus to the object of the scheme of recruit ment to the post of civil services and that there was inade quate attention paid to the nexus between the intent of the proviso and the object to be achieved. The learned Additional Solicitor General controverted the above argument stating that the working system of the civil service in relation to its logical relationship of recruitment rules on different aspects has been exclusively investigated bearing in mind the process of rapid economic development with a democratic framework of Government on Indian scenario and the present proviso is having a dynamic, reasonable and relative nexus with the object to be achieved in the present system of the civil services within its administrative framework. No denying the fact that the civil service being the top most service in 93 the country has got to be kept at height, distinct from other services since these top echelons have to govern a wide variety of departments. Therefore, the persons joining this higher service should have breadth of interest and ability to acquire new knowledge and skill since those joining the service have to be engaged in multiple and multifarious activities as pointed out supra. In order to achieve this object, the selectees of this higher civil services have to undergo .training in the National Academy/ Training institutes wherein they have to undergo careful programme of specialized training as probationers. The various schemes of training are based on the conviction that splendid active experience is the real training and the selectees are to be trained in the academies in all kinds of work they have to handle afterwards with a band of senior chosen officers. Training at the academy comprises a founda tion course followed by another course of practical train ing. The rationale underlying the course at the training centres is that the officers of civil services must acquire an understanding of the constitutional, social, economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the service to which/she is appointed. It is apparent that initial training is in the nature of providing young probationers an opportunity to counter act their weak points and at the same time develop their social abilities and as such the aspect of training is the most important of all. It was brought to the notice of the Government that the probationers who have been allocated to the IPS and Group 'A ' service were more often than not completely neglecting their training in the academies/Training Institutes and also have gone on enmass leave thereby creating a complete vacuum in the academy and the Training Institutes for the purpose of preparing for the next CSE (Main) in the hope of getting a better position and a more preferred service like IAS, IFS etc. without having a sense of involvement with the service to which they have been allocated and appointed on the basis of the earlier examination. It seems that the Government had been facing this disturbed problem of indiscipline and inattentiveness among the probationers undergoing training who were busy themselves with the preparation for the ensu ing CSE. As a result of this, bent on preparation for the CSE the training imparted was not seriously taken and the concentration of the probationers was only in the prepara tion of the next CSE. Consequently, the standard of officers turned out of the academy on completion of their training declined very much. Therefore, in order to overcome this problem it was suggested and considered that the probation ers selected and allocated to a service and sent for train ing should be debarred from appearing in the ensuing CSE so that they can 94 fully devote themselves to the training and take it more seriously. Resultantly, the matter was considered in consul tation with the Department of Personnel and Training and it was agreed that the relevant rules should be amended so as to prevent the IPS and Group 'A ' probationers from joining training at the academy in case they intend to take another CSE. These measures are taken for making probationers train ing more effective and meaningful. Hence for the aforementioned reasons, we hold that there is a dynamic nexus between the impugned second proviso and the object to be achieved. Question No. 9 We shall now pass on to the real and pivotal point in issue which has been hotly debated and eloquently articulat ed by all the learned counsel contending that the impugned proviso is discriminatory and violative of Articles 14 and 16 of the Constitution resulting in a disastrous effect. All the learned counsel appearing in all the batches of the appeals amplified the above contention stating thus: In all, there are 46 Group 'A ' Central Services listed in the CCS Rules of which only for 16 Group 'A ' Services, recruitment is made through the Civil Services Examination conducted by UPSC annually and it is only in respect of the candidates already allocated and appointed to the IPS or to one or other of these 16 Group 'A ' services, the impugned proviso imposes an onerous restriction that they should first resign in order to appear at the next Civil Service Examination whereas there is no such restriction so far as candidates recruited through the same open competition to the remaining Group 'B ' services are concerned despite the fact that the level of responsibility is the same and the qualifications prescribed are comparable. This kind of classification between these two groups has no rational nexus with the object of selection. The reasons attributed for such a classification on the ground of neglect of train ing, financial loss, unemployment situation, loss to service are all common to all the Central Service Group 'A ' listed in the CCS Rules, and therefore, the impugned second proviso is held to be discriminatory against the candidates appoint ed to the IPS and 16 Group 'A ' services and as such it is violative of Article 14. The impugned proviso makes a further discrimination vis a vis candidates appointed to Group 'B ' services, in that the said proviso by placing the onerous condition of resignation from service of candidates appointed to the IPS and Group 'A ' service in substance and effect and it 95 precludes them from competing for higher civil service with the candidates appointed to Group 'B ' service and thereby facilitates the selection of candidates with relatively inferior merit to posts of superior Group 'A ' services. In other words, the impugned proviso excludes the candidates appointed to group 'A ' services from competition on the one hand and on the other facilitates selection from amongst less meritorious candidates appointed to Group 'B ' services to the highest and prestigious All India Services. This defeats the very object of securing the services of most meritorious candidates to the most important All India Services and it is arbitrary for want of rational nexus between the classification of candidates with the proven superior merit and those of inferior merit and consequently the object of recruiting the most meritorious candidates to the top most All India Services is frustrated. In addition to the above submission, reliance was placed on the dictum laid down in R.K. Dalmia vs Justice Tendolkar, ; at pages 296 297 holding, "In order to pass the test of permissible classifications two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia with distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object, sought to be achieved by the statute in question. " According to Mr. P.P. Rao, the recommendations of the Kothari Committee and the Estimates Committee are not en forceable proprio vigore and the executive authorities who are expected to act justly and reasonably, cannot usurp the functions of the Parliament and arbitrarily put a restric tion through the impugned proviso which restriction is highly tainted with hostility and discrimination subjecting the candidates allocated and appointed to the IPS and Group 'A ' services to a harassing and oppressive treatment. Mr. Gopal Singh appearing for some of the appellants besides stating that he is adopting the submissions made by other learned counsel cited some decisions in support of his arguments that the discrimination now existing consequent upon the introduction of the second proviso offends Article 14 of the Constitution. At the risk of repetition, it may be stated that under the present system of civil services, all candidates are selected through one common examination preliminary and main and interview test. A list of selected candidates in the order of merit is published and thereafter the success ful candidates are allocated to different services namely IAS, IFS, IPS, Group 96 'A ' and Group 'B ' services based on their ranks and prefer ences. Of the candidates, IAS and IFS are top rankers in the merit list. In the notification dated 13.12.1986 issued by the Ministry of Personnel, there were only 28 services/posts of which the first three were IAS, IFS and IPS and of the remaining (iv) to (xviii) were Group 'A ' services and (xix) to (xxviii) were Group 'B ' services. In the list of Group 'A ' services, items (xvii) and (xviii) were Grade II and III respectively. In notification dated 19.12.1987, there were in total 27 services/posts of which the first three were the same and the services under (iv) to (xix) were Group 'A ' services and (xx) to (xxvii) were Group 'B ' services. In the nomenclature of Group 'A ' and Group 'B ' services, there was slight variation. In the subsequent notification issued on 17.12.1988, besides the first three services being the same, the total number of services in group 'A ' was 16 and in Group 'B ' the number of services was reduced to 7. In 1989, the first three services remaining the same, there were 16 services under items (iv) to (xix) in Group 'A ' services and 8 services/posts in Group 'B ' Services under item (xx) to (xxvii). In the notification issued on 5th January 1991, the total services were reduced from 27 to 26 and items (i) to (iii) remaining the same, there were 16 Group 'A ' services (iv to xix) and 7 services in Group 'B ' (xx to xxvi). Thus, it is seen that there was inclusion or exclusion of one service or other besides the change of nomenclature in one or two services in the notifications for the CSE every year. As envisaged in Rule 17, due consideration is given at the time of making appointments and on the results of the examination to the preferences expressed by a candidate for various services at the time of his application and the said appointments will be governed by the rules/regulations in force as applicable to the respective Services at the time of appointment. As pointed out in detail in the preceding part of this judgment, under the first proviso to Rule 17, a candidate who has been approved and appointed to IPS or Central Services Group 'A ' will be eligible to compete for appointment in services mentioned against that service in column No. 3 of the table given in the said rule. As per the second proviso appended to the said rule, a candidate who is appointed to a Central Service Group 'B ' on the results of an earlier examination will be eligible to compete for IAS, IFS, IPS and Central Services Group 'A ' and considered only for those appointments. The intent of the above proviso proceeds on the footing that all Central Services of Group 'A ' stand on equal footing and likewise all Group 'B ' serv ices also stand on equal footing within their respective group of services/posts and that there is no point in com peting for any one of the services by a candidate within the same Group 'A ' or Group 'B ' services as the 97 case may be when he has already been allocated and appointed to one of those services in either of the groups to which he has been selected on his merit. It cannot be disputed that the candidates allocated to Group 'A ' services are more meritorious compared to candi dates allocated to Group 'B ' services. Consequently, those allocated to Group 'B ' services get lower position compared to those allocated to Group 'A ' services. The pay scales in Group 'B ' services are comparatively less than those meant for IAS, IFS and IFS and Central Services Group 'A '. There is a clear cut separation on the basis of ranking and merit and, therefore, it cannot be said by any stretch of imagina tion that both Group 'A ' and Group 'B ' services fall under one and the same category but on the other, these services are two distinct and separate categories failing under two different classifications. The Additional Solicitor General refuting the arguments of Mr. P.P. Rao that there is a discrimination between Group 'A ' and Group 'B ' services, in that whilst an Under Secre tary, selected in Group 'A ' services, is not allowed to sit for examination by availing his third chance, a Section Officer coming under Group 'B ' services is permitted to sit for examination availing his chance without resigning from service, emphatically stated that this argument has no merit since in Group 'A ' services, there is a vertical movement. The learned ASG further clarified that Group 'A ' and Group 'B ' services are two separate services, having different status, prospects, conditions of services and pay scales and both the services under the two groups are not similarly situated, besides the candidates in Group 'A ' services standing in higher rank and merit. The Tribunal after deeply considering the similar con tention raised before it has concluded as follows: . . We do not see any reasonable basis to urge that Group 'A ' and Group 'B ' Services should be treated at par. Even their pay scales and conditions of service not the same as in the Group 'A ' Services. It is, there fore, not a question of comparing these two Services and placing them at par. In our opinion, there is no discrimination. It will be noticed that the alleged discrimination is not on the basis of religion, race, caste, sex, descent, place of birth, residence or any of them. The discrimination, if any, has a reasonable nexus with the objective for which it has been made. The objective is to create five categories of Services consisting of IAS, IFS, IFS, Central Services Group 'A ' and Central Services Group 'B '. We are fur 98 ther of the opinion that the Government having come across certain difficulties and problems in the matter of probationary training and the filling up of the vacancies in various Serv ices made these rules. We do not find the argument of discrimination between Group 'A ' and Group 'B ' Services to be valid. We, there fore, reject these arguments". One other argument advanced on behalf of the appellants was that 'he candidates who have been allocated in Group 'A ' services and whose raining is postponed at their request have to loose their seniority whereas .he candidates who have been appointed to Group 'B ' services do not suffer such kind of disability and that they can even after their train ing retain their original seniority which they had at the time of initial selection. This serious setback suffered by a candidate selected in Group 'A ' services, according to the counsel for the appellants, indicates that there is an apparent discrimination between the two sets of candidates. This contention of the appellants, according to ASG, cannot be countenanced because the services under Group 'A ' and Group 'B ' are different services and, therefore, the condi tions of service of a particular service cannot be compared with other service especially when the services are not at par and more so when the other service, namely, Group 'B ' service is less in rank and merit to that of Group 'A ' Service. In passing, all the learned counsel in assailing the validity of the impugned second proviso drew our attention to various Service Rules, such as Central Secretariat Serv ice Rules, Indian Revenue Service Rules, 1988, Indian Cus toms and Central Excise Service Group 'A ' Rules, 1987, Department of Revenue (Customs Appraiser) Recruitment Rules, 1988, Indian Railway Personnel Service (Recruitment) Rules, 1975 and Delhi and Andaman and Nicobar Islands Civil Service Rules, 1971 all made under Article 309 of the Constitution of India and attempted to show that various provisions of those rules relating to the recruitment and service condi tions go in support of their submissions that there is a hostile discrimination between the candidates of Group 'A ' services and Group 'B ' services. In our considered opinion,. this abortive attempt made by the learned counsel does not loom large and assume any significance in examining the broad aspect of the main issues involved and in testing the constitutionality of the said proviso. Now, it necessarily follows whether the classification of these two services, one falling under Group 'A ' and another failing under Group 'B ' are based on intelligible differentia. 99 The Constitution Bench of this Court in R.K. Dalmia 's case (supra) after reiterating the legal principle enunciat ed by a Constitution Bench of Seven Judges of this Court in Budhart Choudhry vs State of Bihar, ; , has ruled thus: "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. " Having regard to the objective in that case, it has been held: "In determining whether there is any intelli gible differentia on the basis of which the petitioners and their companies have been grouped together it is permissible to look not only at the facts appearing in the notifica tion but also the facts brought to the notice of the Court upon affidavits. The facts in the present case afford sufficient support to the presumption of constitutionality of the noti fication and the petitions have failed to discharge the onus which was on them to prove that other people or companies similarly situated have been left out and that the petitioners and their companies have been singled out for discriminatory and hostile treatment. " In Kumari Chitra Ghosh and Another vs Union of India and Others, ; , the facts were thus: The appellants filed a Writ Petition in the High Court challenging the authority of the Central Government to select candidates for certain reserved seats on the ground that they having secured 62.5 per cent marks would have got admission but for the reservation of seats which were filled by nominations by the Central Government. The High Court dismissed the Writ Petition as well as the Review Petition. Aggrieved by the judgment of the High Court, the appellants appealed to this Court. Grover, J speaking for the Constitu tion Bench approved the dictum in R.K. Dalmia 's case (cited above) laying down the fulfilment of the two conditions as the test of permissible classification and held that the classification in that case was based on intelligible dif ferentia, observing thus: "It is the Central Government which bears the financial burden of running the medical col lege. It is for h to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Gov ernment cannot be denied the right to 100 decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assess ment and survey of the requirements of resi dents of particular territories and other categories of persons for whom it is necessary to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasona ble basis it is not for the Courts to inter fere with the manner and method of making the classification. " In the above case, the Court has distinguished the decision in Rajendran 's case (referred to above). Y.V. Chandrachud, J as he then was speaking for the Constitution Bench in State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; in which it was contend ed on behalf of the State that is always open to the Govern ment to classify its employees so long as the classification is reasonable and has nexus with the object thereto, stated as follows: "Thus, it is no part of the appellants ' burden to justify the classification or to establish its constitutionality. Formal education may not always produce excellence but a classifi cation founded on variant educational qualifi cations is for purposes of promotion to the post of an Executive Engineer, to say the least, not unjust on the fact of it and the onus therefore cannot shift from where it originally lay. . . . . . . Classification is primarily for the legisla ture or for the statutory authority charged with the duty of framing the terms and condi tions of service, and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasona ble basis, it has to be up held. . . Discrimination is the essence of classifica tion and does violence to the constitutional guarantee of equality only it rests on an unreasonable basis. Equality is for equals . That is to say that those who are similarly circumstanced are entitled to an equal treatment. . Judicial scrutiny can therefore extend only to the considera tion whether the classification rests on a reasonable basis whether it bears nexus with the object in view. It cannot extend to em 101 barking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rule making authority on the need to classify or the desirability of achieving a particular object. " P.N. Bhagwati, J and Krishna lyer, J have concurred with the view expressed by chandrachud, J though they have added some more concurring observations of their own. It will be apposite to recall an observation of this Court in A.S. Sangwan vs Union of India, [1980] Supp. SCC 559 at 561 reading as follows: "A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the impera tives of national considerations. We cannot, as Court, give directives as to how the De fence Ministry should function except to State that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because if functions under the Constitution and not over it . . . It is entirely within the reasonable discre tion of the Union of India. It may stick to the earlier policy or give it up. But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. ' ' See also Akhil Bharatiya Soshit Karamchari Sangh (Rail wav) 's case (already referred to). In Deepak Sibal vs Punjab University, ; M.M. Dutt, J speaking for the Court has held thus: "In order to consider the question as to the reasonableness of the classification, it is necessary to take into account the objective for such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unrea sonable. Surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature. But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved. A classification by the identification of a source must 102 not be arbitrary, but should be on a reasona ble basis having a nexus with the object sought to be achieved by the rules for such admission. A classification need not be made with mathematical precision but, if there be little or no difference between the person or things which have been grouped together and those left out of the group, the classifica tion cannot be said to be a reasonable one . . . . . . It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification can not be said to be a rea sonable one . . . . . It is submitted that in making the classification the surrounding circumstances may be taken into account . . . . . follows from the observation that surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature. But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved. In the instant case, the circumstances which have been relied on by the respondents, namely, the possibility of production by them of bogus certificates and insecurity of their services are not, in our opinion, such circumstances as will justify the exclusion of the employees of private establishments from the evening classes. " What falls instantly for determination is whether the differentia on which the classification is sought to be made has a rational relation with the object to be achieved. We have already discussed this question in detail when we have separately examined the question as to whether the second proviso is related to the purposes stated therein. Whereas Mr. Kapil Sibal has urged that it is always open to the Government to classify its employees as long as the classification is reasonable and has nexus to the object thereto, the rival contention is that there is no nexus between the classification and the object to be achieved thereby, that in fact the classification defeated that object, that if chances of sitting for examination are denied to a few with equals, there is inherent vice attached to such classification and that in such circumstances, the unreasonableness of the classification becomes patent. It is further urged 103 on behalf of the appellants that this classification foments frustration amongst the selectees of group 'A ' services and produces inefficiency by placing men of lower efficiency in a very advantageous position. Mr. P.P. Rao would urge that if there is a vertical movement in group 'A ' services as stated by Mr. Kapil Sibal, how can candidates in group 'B ' services be permitted to sit for examination of IAS, IFS and IPS by passing the meritorious candidates under group 'A ' and therefore the classification is per se irrational, unjust and discriminatory and as such ultra vires Article 14. We shall now bestow out judicious thought over this matter and carefully examine the rival contentions of the rival parties in the light of the guiding principles, lucid ly laid down by this Court in a series of decisions, a few of which we have already referred to hereinbefore. The selections for IAS. IFS and IPS group 'A ' services and group 'B ' service are made by a combined competitive examination and viva voce test. There cannot be any dispute that each service is a distinct and separate cadre, having its sepa rate field of operation, with different status, prospects, pay scales, the nature of duties, the responsibilities to the post and conditions of service etc. Therefore, once a candidate is selected and appointed to a particular cadre, he cannot be allowed to say that he is at par with the others on the ground that all of them appeared and were selected by a combined competitive examination and viva voce test and that the qualifications prescribed are comparable. In our considered view, the classification of the present case is not based on artificial inequalities but is hedged within the salient features and truly founded on substantial differences. Judged from this point of view, it seems to us impossible to accept the submission that the classification rests on an unreal and unreasonable basis and that it is arbitrary or absurd. In this connection, it may be noted that in fact the civil services in foreign countries too, such as United States of America, Great Britain, France and Canada grew up by degrees from time to time in tune with the concept of new ideas under the pressure of some necessity or influence of particular theories linked with the changing political ideology and social conditions and with a view to trimming the civil service scheme and this process of development is by way of evolution rather than revolution. We may again hark pack to the case of the appellants and examine whether this classification offends Articles 14 and 16 of the Constitution of India. Article 14 declares that the State shall not deny to any person 104 equality before the law or the equal protection of the law within the territory of India. The cherished principle underlying the above Article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation, their position is the same. Vide Chiranjit Lal vs Union of India, ; or in other words its action must not be arbitrary, but must be based on some valid principle, which in itself must not be irrational or discriminatory (Vide Kasturi vs State of J & K (albeit). As ruled by this Court in Ameeroonissa vs Mah boob, and Gopi Chand vs Delhi Administration, ; that differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the differentiation. Thus Article 14 condemns discrimination and forbids class legislation but permits classification founded on intelligible differentia having a rational relationship with the object sought to be achieved by the Act/Rule/Regulation in question. The Government is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logically complete. As observed by this Court more than once, every classification is likely in some degree 10 produce some inequality. The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases but we feel that in the present case, it is not neces sary to go in for any lengthy discussion as 10 the origin, meaning and the gradual development of the concept of prin ciples and enlargement of the scope and effect of this Article. Suffice to mention a few decisions of this court relating to the issue under consideration, namely Chiranjit Lal Chowdhury vs The Union of India; Budhart Choudhry and Others vs The State of Bihar; R.K. Dalmia vs Justice Tendol kar (all cited above); E.P. Royappe vs State of Tamil Nadu, ; ; Maneka Gandhi vs Union of India, [1978] 1 SCC 248; Ramana vs International Airport Authority of India, AIR 1979 SC 1928; Union of India vs Tulsiram Patel, ; ; Swadeshi Cotton Mills vs Union of India, ; ; and Central Inland Water Transport Corpo ration vs Brojo Nath, AIR 1986 SC 1971. In Devadasan vs Union of India, ; wherein Subba Rao, J as he then was, has dissented from the majority and pointed out that the expression "equality before the law or the equal protection of the laws '* means equality among equals and that Article 14 does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circumstance of the differences. 105 In Birendra Kumar Nigam and Others vs Union of India,Writ Petition Nos. 220 222 of 1963 decided on 13.3.1964, three writ petitions were filed under Article 32 of the Constitution raising a common question regarding the constitutional validity of certain rules framed by the Union Ministry of Home Affairs and certain directions issued by it relative to the appearance of Assistants employed in the Central Secretariat Service in the competitive examination held by the Union Public Service Commission for recruitment to certain All India Services. In each of the above three petitions, grounds of challenge was same viz., that the impugned rules and directions were violative of Articles 14 and 16 (1) of the Constitution. The facts in relation to the three petitions were slightly different. Therefore, by way of illustration we will tersely state the facts in Writ Petition No. 220 of 1963. The petitioner in that case was appointed to the post of an Assistant in the Central Secretariat Service from 1956 and he joined the same on 29.8.56. But in March of that year, he had already submitted his application to be includ ed as a candidate for competing in the combined examination for the several All India Services IAS, IFS, IPS and the several categories of the All India Central Services, the Examination for which was held in September 1956 but before that date he received an information from the Home Ministry that he could not appear for that examination because he was still on probation. prior to the date on which he completed his probation and was confirmed as an Assistant, the Minis try of Home Affairs issued the impugned notification on 14.3.1957 pointing out that there was an acute shortage of Grade IV Assistants in the Secretariat Service and that the Assistants would not be permitted to compete at the examina tion to be held in 1957 and that those who were desirous of competing their candidature would be restricted to an ap pointment to Grade III of the Central Secretariat alone. We are not giving the facts of other two writ petitions since the common question decided was the same. Rajagopala Ayyangar, J while speaking for the Constitu tion Bench in that case has held: "If, as must must be, it is conceded that the existencies, convenience, or necessity or a particular department might justify the impo sition of a total ban on the employees in that department, from seeking employment in other departments, a partial ban which permits them to seek only certain posts in the 106 same department cannot be characterised as illegal as being discriminatory. The mere fact therefore that under the rules officers in certain other departments are permitted to compete for a Class I post is no ground by itself for considering such a variation as an unreasonable discrimination, violative of Articles 14 and 16 (1) of the Constitution as not based on a classification having a ration al and reasonable relation to the object to be attained. Of course, no rule imposes a ' ban on these employees resigning their posts and competing for posts in the open competition along with 'open market 'candidates." As we have repeatedly held that each of the civil services, namely IAS, IFS, IPS, Group 'A ' Services and Group 'B ' Services is a separate and determinate service forming a distinct cadre and that each of the services is founded on intelligible differentia which on rational grounds distinguishes persons grouped together from those left out and that the differences are real and substantial having a rational and reasonable nexus to the objects sought to be achieved and that there is no question of unfairness or arbitrariness in the executive action in adding the second proviso to the substantive rule 4 of CSE Rules. When the submission of the learned counsel for the appellants is carefully exam ined in the backdrop of the legal principles and the factual position, we are in full agreement with conclusion arrived at by the Tribunal that the impugned second proviso to Rule 4 is not violative of Articles 14 or 16 of the Constitution of India. In Summation: The impugned second proviso to Rule 4 of the CSE Rules introduced by Notification llll No. 13016/4/86 AIS(1) dated 13.12.1986 is legally and constitutionally valid and sus tainable in law and the said proviso neither travels beyond the intent of the main rule, namely, Rule 4 of the CSE Rules nor it is ultra vires Regulation 4 (iii a) of Regula tions, 1955 that it is neither arbitrary nor unreasonable and that there is a dynamic and rational nexus between the impugned second proviso and the object to be achieved. There is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires Article 14 or Article 16 of the Constitution of India. Before parting with the judgment, we feel that it has become necessary to give a specif ic direction to the respondents inclusive of the Union Public Service Commission in pursu ance of the earlier directions given in our order dated 7.12.1990 (vide Annexure 'A ') which directions were given in pursuance of various interim orders passed by the Central Administrative Tribunal, Principal Bench, New Delhi and thereafter finally in its final 107 judgments dated 20.8.90, 4.10.90 and 5.10.90. For ready reference and to have a proper perspective, we would like to proliferate the following passage from our earlier order dated 7.12.1990: "Hence we permit all those candidates failing under Para Nos. 5 (ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union Public Service Commission. that ' he/she falls within these categories and that the concern candidates have passed the preliminary exami nation of 1990 and have also applied for the main examination within the due date. This permission is only for the ensuing examina tion. As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examination on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those condi tions as mentioned under paras 5(ii), 6 and 7. " On the strength of the above order, we direct the re spondents inclusive of the Union Public Service Commission that all those candidates who have appeared for the Civil Services (Main) Examination, 1990, pursuant to our permis sion given in the order dated 7.12.90 and who have come out successfully in the said examination and thereby have quali fied themselves for the intervieW, that if those candidates completely and satisfactorily qualify themselves by getting through the written examinations as well as the interview shall be given proper allocation and appointment on the basis of their rank in the merit list, notwithstanding the restriction imposed by the second proviso and our present judgment upholding the validity of the said proviso since the respondents have not questioned and challenged the directions given by CAT, Principal Bench, Delhi in para graphs 5(ii), 6 and 7 of its judgment dated 20.8.1990. We would like to make it clear that the unchallenged direction given by the CAT in its judgment as well as directions given by us in our order dated 7.12.90 are not controlled by any rider in the sense that the said directions were subject to the result of the cases and hence those directions would be confined only to those candidates who appeared for CSE, 1990 and no further. The seniority of those successful candidates in CSE, 1990 would depend on the service to which they have qualified. The seniority of the left out candidates would be maintained in case they have joined the service to which they have been allocated on the result of previous CSE and such candidates will not be subjected to suffer loss of seniority as held by the CAT, Delhi in its judgment. 108 In the result for the reasons aforementioned the judg ments of the Tribunal are confirmed subject to the above directions and all the appeals are dismissed accordingly. No order as to costs. ORDER We have heard all the learned counsel appearing in their respective appeals and also the learned Additional Solicitor for respondents for a very considerable length of time. The main thrust of the argument advanced on behalf of all the appellants is that the second proviso to Rule 4 of the Civil Services Examination Rules (published in the Gazette of India, Extraordinary, Part I Section, dated December 17, 1988) is offending Article 14 of the Constitution of India and is contrary to law. As the above question requires a careful examination with regard to the individual cases listed for consideration and as we are informed that the Central Services Examination Commences on 17.12.1990, we arc constrained to give the following directions on the basis of the conclusions arrived at by the Central Administrative Tribunal, Principal Bench, New Delhi in its judgment dated 20th August 1990. The relevant conclusions as they appear from the concluding portion of the judgment of the Tribunal are as follows: 5(ii). A candidate who has been allocated to the I.P.S. or to a Central Services, Group 'A ' May be allowed to sit at the next Civil Service Examination, provided he is within the permissible age limit, without having to resign from the service to which he has been allocated, nor would he lose his original seniority in the service to which he is allo cated if he is unable to take training with his own Batch. Those applicants who have been allocated to the I.P.S. or any Central Services, Group 'A ', can have one more attempt in the subse quent Civil Services Examination for the services indicated in Rule 17 of the C.S.E. Rules. The Cadre Controlling Authorities can grant one opportunity to such candidates. All these candidates who have been allo cated to any of the Central Services, Group 'A ', or I.P.S. and who have appeared in Civil Services Main Examination of a subsequent year under the interim orders of the Tribunal for the Civil Services Examination in 1988 or 1989 and have succeeded, are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules. But this exemp tion will not be available for any subsequent Civil Services Examination. 109 It is pertinent to note that the respondent has not challenged the above directions given in the concluding part of the judgment. So far as the conclusions under para Nos. 6 and 7 reproduced above, the learned Additional Solicitor General states that the respondent has no objection to have them sustained. So far as the directions under para No. 5 (ii) is concerned, the Tribunal has allowed the candidates who have been allocated to the I.P.S or the Central Serv ices, Group 'A ' to sit at the next Civil Service Examination subject to the condition that they must be within the per missible age limit and without having to resign from the service to which they have been allocated nor would they lose their original seniority in the service to which they are allocated if they are unable to take training with their own Batch. The Tribunal has used their expression "may be allowed to sit at the next Civil Service Examination but it did not restrict it only with regard to the preliminary examination as now contended by the learned Additional Solicitor, according to whom those candidates are not eligi ble to sit for the main examination since the Tribunal has upheld the validity of the second proviso to Rule 4 of the CSE Rules. In order to properly understand and appreciate the conclusions arrived at by the Tribunal under para 5(ii), we shall reproduce some interim orders made by the Tribunal during the hearing of the O.As. In M.P. No. 1269/90 in OA No. 1074/90 dated 31.5.1990 which has given rise to SLP (Civil) Nos. 13525 38/90, the C.A.T., New Delhi has passed the following order: "We have heard the learned counsel for the parties and considered the matter. In our opinion, a direction should be issued to the respondents to permit the applicants to appear in the preliminary C.S.E. 1990 without press ing for their resignations from the service and respondents may also grant them necessary leave etc. This interim order will be subject to the order in O.A. 206/1989 and connected cases. " Interim order passed on 4.6.1990 in Regn. No. 0A/160/90 by CAT, New Delhi which has given rise to Civil Appeal No. 5470/90 reads thus: "The learned counsel for the applicant states that the applicant has applied for the 1990 Civil Services Preliminary Examination well in time and has also received Roll Number from the Union Public Service Commission and that he is not being allowed to appear in the Examination in view of the power conferred by the second proviso to Rule 4 of the Civil Services Examination 1987. The examination is going to be held on 10.6.1990. In view of this, we direct that if it is convenient and administratively possible, the respondents shall allow the ap 110 plicant provisionally to appear in the said examination. Respondents may also consider granting him necessary leave etc. for the purpose. Issue dasti. " In M.P. No. 1251/90 in O.A. No.944/1989 which has given rise to Civil Appeal No. 5471/90, CAT, New Delhi has passed the following order: "We have heard learned counsel for the parties and we think it will be in the interest of justice to allow the prayer for interim order to enable the petitioner to sit in the prelim inary C.S.E. 1990. Learned counsel for the petitioner states that the petitioner has received the admission card. He is directed to give the Registration No./Roll No. to the Secretary, UPSC by 4.6.1990. We direct the respondents to permit the petitioner to appear in the preliminary C.S.E. 1990 without press ing for his resignation from the service and also grant him necessary leave etc. for ap pearing in the said examination. This interim order will be subject to the order in OA. 944/1989. The Misc. Petition is accordingly disposed of. Order dasti. " In OA 913/90 (MP 1133/90) and CA No. 914/90 (MP 1134/90), which have given rise to Civil Appeal Nos. 5506 5525/90 the Tribunal has passed the following order on 17.5.1990: "As regards interim relief, the respondents are directed to permit the appli cants to appear in the Civil Services Examina tion 1990 and to provide necessary facilities like leave etc. to enable them to appear in the ensuing Civil Services Examination, 1990 subject to the decisions in the Bunch of eases including O.A.No. 206/89 Alok Kurnar& Ors. vs U.O.I. List the matter on 29.5.1990. Orders (Dasti)" It seems no clarification has been sought for from the Tribunal by the respondents as to whether the expression "next Civil Service Examination" is confined only to the preliminary or whether it includes the main examination also. Though some of the interim orders passed by the Tribunal which we have extracted above show that the said interim orders were passed permitting the candidates to sit for the preliminary Central Service Examination of 1990 subject to the decisions of the O.As, in the final judgment, no restriction is shown. In other words, the conclusion under para 5(ii) is 111 not limited subject to any contingency; but on the other hand, it is absolute. Therefore, that expression in the absence of any specif ic restriction, has to include both the preliminary as well as the main examinations. Hence in the absence of any chal lenge to the directions embodied in the impugned judgment, we hold that all those candidates falling under para No. 5(ii) can sit both for the preliminary as well as the main examinations Subject to their eligibility otherwise. The condition incorporated in the later part of the impugned proviso that they should resign from the service to which they have been allocated would not operate against them for the main examination of 1990 lest that direction would be meaningless. Hence we permit all those candidates falling under Para Nos.5(ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union Public Service Commission that he/she falls within these categories and that the concerned candidates have passed the preliminary examination of 1990 and have also applied for the main examination within the due date. This permission is only for the ensuing examination. As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examina tion on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those conditions as mentioned under paras 5(ii), 6 and 7. The Secretary, Union Public Service Commission will make the necessary arrangements enabling the candidates to sit for the main examination of 1990. We will give the judgment touching on the constitution ality of the second proviso to Rule 4 of CSE Rules later. We would once again like to state that the above directions are given only on the basis of the unchallenged conclusions arrived at by the Central Administrative Tribunal, Principal Bench, New Delhi. T.N.A Appeals dismissed.

Rule 4 of the Civil Services Examination Rules provide that every candidate appearing at the examination, who is otherwise eligible, shall be permitted three attempts at the examination. (The attempts are now increased to four). Under Proviso to the said Rule the restriction on the number of attempts is not applicable in the case of Scheduled Castes and Scheduled Tribes candidates who are otherwise eligible. By a notification dated 13.12.1986 the Central Executive Authority inserted second proviso to Rule 4. The said second proviso provided that a candidate who on the basis of the results of the previous Civil Services Examination, had been allocated to the I.P.S. or Central Services, Group 'A ' but who expressed his intention to appear in the next Civil Services Main Examination for competing for IAS, IFS, IPS or Central Services, Group 'A ' and who was permitted to abstain from the probationary training in order to so appear shall be eligible to do so, subject to the provisions of Rule 17 and that the said candidate when allocated to a service on the basis of the next Civil Services (Main) Examination can either join that service or the service to which he has already been allocated on the basis of the previous CSE and that if he fails to join either of the services, his alloca tion based on one or both the examinations, as the case may be, will stand cancelled. Further, notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and is appointed to that service shall not be eligi ble to appear again in the CSE unless he has first resigned from the service. In other words, a candidate failing within the ambit of this proviso can appear in the CSE for all the permitted attempts subject to his age limit if he intends to appear again in the CSE provided he first resigns from the service which he accepts on allocation and to which he is appointed. Rule 8 of the Civil Services Examination Rules precludes the candidate who have been appointed to the IAS, or IFS from sitting in the ensuing examination while in service. The said rule provide that a candidate who is appointed to the Indian Administrative Service (IAS) or the Indian For eign Service (IFS) on the basis of result of an earlier examination before the commencement of the ensuing examina tion and 48 continues to be a member of that service will not be eligi ble to compete at the sub sequent examination, even if he is disillusioned and wants to switch over. Further, this rule states that in case, a candidate has been appointed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination, but before the main examination, the candidate, if continues to be a member of that service, shall not be eligible to appear in the ensu ing main examination notwithstanding that the said candidate has qualified himself in the preliminary examination. Simi larly if a candidate is appointed to the IAS or IFS after the commencement of the Main examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointment to any service/post on the basis of the result of this examination. Rule 17 of the Civil Services Examination Rules provide that if a candidate has been approved for appointment to IPS and expresses his intention to appear in the CSE (Main) for higher civil service, the services for which he is eligible to compete are IAS, IFS and Central Services Group 'A '. Similarly, a candidate who has been approved for appointment to the Central Services Group 'A ' and expresses his inten tion to appear in the next CSE (Main) the services to which he will be eligible to compete are IAS, IFS and IPS. The second proviso to Rule 17 provides that a candidate who is appointed to a Central Services Group 'B ' on the result of an earlier examination will be considered for appointment to IAS, IFS, IPS and Central Services Group 'A '. The eligibility of a candidate to appear in the Civil Services Examination with regard to nationality, age and qualifications is given under Regulation 4 of the IAS (Appointment by Competitive Examination) Regulations, 1955. Clause (iii a) of the said Regulation provides that unless covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, every candidate appearing for the examination after 1st January, 1979, who is otherwise eligible, shall be permitted three attempts at the examination, and the appearance of a candi date at the examination will be deemed to be an attempt at the examination irrespective of his disqualification or cancellation as the case may be, of his candidature. The legality and constitutionality of second proviso to Rule 4 and 49 Rule 17 was challenged before the Central Administrative Tribunal. The Tribunal held that the second proviso to Rule 4 and Rule 17 were valid and were not hit by Article 14 and 16 of the Constitution. In appeals to this court, it was contended on behalf of the appellants (1) that second proviso to Rule 4 of the CSE Rules was invalid because: (a) it puts embargo restricting the candidates who are seeking to improve their position vis a vis their career in government service; (b) it travels beyond the intent of main rule viz. Rule 4; (c) it is ultra vires to clause (iii a) of regulation 4 of the I.A.S (Appointment by competitive Examination) Regulation, 1955 in as much as the power to notify exceptions do not include the power to make candidates ineligible who are otherwise eligi ble in terms of clause (i) to (iii) of Regulation 4; (d) it is bad since the authorities have stepped out of the consti tutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the House of Parliament; (e) it is arbitrary and irrational having no nexus with the object of recruitment to the post of civil services; (f) it is violative of Articles 14 and 16 of the Constitution because it discriminates between group 'A ' and group 'B ' services i.e. it excludes the candidates appointed to group 'A ' services from competition while no such embargo is placed restricting the candidates to Group 'B ' services; (2) that the second proviso is not applicable to the candidates belonging to SC or ST; (3) Proviso to Rule 17 of the Civil Services Examination is invalid since it places restriction on candidates who are seeking to improve their position vis a vis their career. DismiSsing the appeals, this Court, HELD: 1. If Rule 4 of Civil Services Examination Rules is examined in juxtaposition of clause (iii a) of Regulation 4, it is clear that both Rule 4 of CSE Rules and Clause (iii a) of the Regulation 4 show that every eligible candi date appearing at the Civil Services Examination should be permitted three attempts at the examination which are now increased to four under Rule 4 of the CSE Rules. The eligi bility of a candidate to appear in the CSE with regard to nationality, age and educational qualifications is given under clauses (i) to (iii) of Regulation 4 but the Govern ment by exercise of its executive power has imposed certain restrictions under some specified circumstances. A plain and grammatical reading of clause (iii a) of Regulation 4 shows that if the number of 50 attempts are covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, then the notification will become enforceable and only in the absence of such notification, every candidate normally can appear for all permitted attempts at the examination whether three or four. The impugned second proviso does not restrict or put an embargo on the number of attempts in the normal course. But the restriction is only when the conditions enumerated in the impugned proviso are satisfied. The restriction imposed by the impugned proviso cannot be said to be unjust, unreasonable or arbitrary or change of any policy. Moreover, the spirit of the main rule is not in any way disturbed. [80 B F, 92 D] 1.1 The restriction or embargo, as the one under consid eration is not only placed on the candidates who on the basis of the result of the previous CSE had been allocated and appointed to IPS or Central Services Group 'A ' but also on the candidates appointed in the higher echelon of civil service. There is a far more restrictive rule in existence, namely Rule 8 of the CSE Rules which precludes the candi dates who have been appointed to the IAS or IFS, from sit ting in the ensuing examination while in service. Further, this rule states that in case, a candidate has been appoint ed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination, but before the Main examination, that candidate if continues to be a member of that service, shall not be eligible to appear in the ensuing main examination notwithstanding that the said candidate has qualified himself in the preliminary examina tion. Similarly if a candidate is appointed to the IAS or IFS after the commencement of the main examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointment to any service/post on the basis of the result of this examination. But there is no bar for a candidate who is appointed to the IAS/IFS resigning from that service and sitting in the examination for IPS or any Central Service Group 'A '. [86 B F, 86 G H] Under Rule 4 of CSE Rules notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and appointed to that service shall not be eligible to appear again in the CSE unless he first resigns from that service. In other words, a candidate who is allocated and appointed to a service can sit in the ensuing examination provided he first resigns from that service. This restric tion, is a reasonable one in order to 51 achieve the desired result. Thus the second proviso to Rule 4 of the CSE Rules does not travel beyond the intent of the main rule putting any unjustifiable embargo and the proviso is not ultra vires Regulation 4(iii a) of Regulations 1955 on the ground that it makes the candidates ineligible who are otherwise eligible in terms of clauses (i) to (iii) of the said Regulation and the proviso to Rule 17 is not in valid. [86H, 87 A C] 2. An enactment is never to be held invalid unless it be, beyond question, plainly and palpably in excess of legislative power or it is ultra vires or inconsistent with the statutory or constitutional provisions or it does not conform to the statutory or constitutional requirements or is made arbitrarily with bad faith or oblique motives or opposed to public policy. [87 C D] 2.1 While interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, the court is bound to construe them in their ordinary sense with reference to other clauses to the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statutes/Rules/Regulations relating to the subject mat ter. Added to this, in construing a statute, the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intendment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation. [83 F G] Maxwell on the "Interpretation of statutes" 10th Edn. page 7; Craies on Statute Law, 5th Edn.; 6th Edn., page 89; referred to. King Emperor vs Benoari Lal Sharma, AIR 1945 PC 48; Wardurton vs Loveland, [1832] 2 D & CH. (H.L.) 480;Suffers vs Briggs, ,8; Commissioner of Income Tax vs section Teja Singh; , ; M. Pentiah and Ors. vs Muddala Veeramallappa and Ors., ; ; It. Col. Prithi Pal Singh Bedi etc. vs Union of India & Ors. , ; A.R. Auntlay vs R.S. Nayak; , ; Maharashtra State Board of Secondary and Higher Secondary Education and Anr. vs Paritosh Bhupesh Kurmar sheth etc. , [1985] I S.C.R. 29; Philips India Ltd. vs Labour Court, Madras and Ors., ; ; Balasinor Nagrik Cooperative Bank Ltd. vs Babubhai Shankerlal Pandya and Ors., ; 52 Dr. Ajay Pradhan vs State of Madhya Pradesh and Ors. , ; ; LIC vs Escorts, ; , referred to. 2.2 A Proviso to a Section/Rule is expected to except or qualify something in the enacting part and presumed to be necessary. When the impugned second proviso to Rule 4 of the CSE Rules is interpreted in its grammatical meaning and cognate expressions and construed harmoniously with the substantive rule, it is pellucid that the said proviso only carves out an exception to Rule 4 of the CSE Rules in given circumstances and under specified conditions and, therefore, the second proviso cannot be read in isolation and inter preted literally. On the other hand the substantive Rule 4 is be read in conjunction with the two provisos appended thereto so as to have a correct interpretation. [83H, 85 E F] 2.3 In the Proviso, in dispute, there are no positive words or indications which would completely exclude the operation of the substantive rule the spirit of which is reflected in Regulation 4 of the Regulations, 1955. The restriction imposed by the second proviso is only under certain circumstances. Although the notification introducing the impugned proviso, has to be strictly construed, the Court cannot overlook the very aim and object of the proviso thereby either defeating its purpose or rendering it redun dant or inane or making it otiose. Judged from any angle, it is not possible to hold that there is a violent breach of the provisions of the substantive Rule 4 of CSE Rules and Regulation 4 (iii a) and it cannot. be held that the im pugned second proviso either subverts or destroys basic objectives of Rule 4 and that it is ultra vires. [85F H, 86 A B] Maxwell on "The Interpretation of statute", 11th edn. page 155; Kent 's Commentary on American Law, 12th Edn. 1 463, referred to. Gen. vs Chelsea Waterworks Co., [1731] Fitzg. 195; Piper vs Harvey,[1958] I Q.B. 439: R. vs Leeds Priso (Gover nor), ; Ram Narain Sons Ltd. and Ors. vs Assit. Commissioner of Sales Tax and Ors, ; ; Abdul Jabar Butt & lint. vs State of Jammu and Kashmir, ; ; Commissioner of Income Tax vs section Teja Singh, ; ; The Commissioner of Income Tax Mysore Travancore Cochin and Coorg., Bangalore vs The Indo Mercantile Bank Ltd., ; ; Madras & Southern Mahratta Railway Co. vs Bezwada Municipality, [1944] L.R. 71 I.A. 113, Corpn. of the City of Toronto vs Attorney General for Canada, [1946]A.C. 32; Mackinnon Mack enzie & Co. Ltd. vs Audrey D ' Cost and Anr., [1987] 2 SCC 469, referred to. The argument that the second proviso is bad since the authorities have stepped out of the constitutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the Houses of the Parlia ment, has to be rejected because the proviso has been intro duced by the Central Executive Authority under the powers flowing from Article 73(1) (a) of the Constitution, accord ing to which the executive power of the Union subject to the provisions of the Constitution shall extend to the matters with respect to which Parliament has power to make laws, but of course subject to the proviso made thereunder. Needless to point out that whilst by virtue of clause 1 (a) of Arti cle 73, the executive power of the Union which is co exten sive with the legislative power of Parliament can make laws on matters enumerated in List I (Union List) and List II (Concurrent list) to the Seventh Schedule of the Constitu tion, under Article 162 of the Constitution, the executive power of the State Executive which is coextensive with that of the State legislature can make laws in respect of matters enumerated in List III ( State List) and also in respect of matters enumerated in List II (Concurrent List), subject to the provisions of the Constitution. [77 D G] 3.1 In the instant case, the Central executive authority has not either expressly or impliedly changed the policy of the Government by exercising unreasonable and arbitrary discretion and the present Rule 4 with its newly added second proviso does not repeal the essential features of the pre existing Rule 4 but only limits the ambit of the opera tion of the price 4 under a given situation. Hence, there is no substance in the contention that the second proviso is bad and that the central executive authority has trans gressed the constitutional limits. [77 H, 78 A] 4. Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The cherished principle underlying the above Article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation, their posi tion is the same. [103 H, 104 A] 4.1 Differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the dif ferentiation. Thus Article 14 condemns discrimination and forbids class legislation but permits classification 54 founded on intelligible differentia having a rational rela tionship with the object sought to be achieved by the Act/Rule/Regulation in question. The Government is legiti mately empowered to frame rules of classification for secur ing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logi cally complete. Every classification is likely in some degree to produce some inequality. [104 B D] R.K. Dalmia vs Justice Tendolkar, ; ; Budhan Choudhry vs State of Bihar, ; ; Kumari Chitra Ghosh and Anr. vs Union of India and Ors, ; ; State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; ; A.S. Sangwan vs Union of India, ; Akhil Bhartiya Soshit Karamchari Sangh (Railway) vs Union of India & Ors., vs ; ; Deepak Sibal vs Punjab University ; ; Chiranjit Lal vs Union of India ; Ameeroo nissa vs Mahboob, ; Gopi Chand vs Delhi Admin istration; , ; E.P. Royappe vs Stale of Tamil Nadu, ; ; Maneka Gandhi vs Union of India [1978] 1 SCC 248; Ramana vs International Airport Authority of India, AIR ; Union of India vs Tulsiram Patel, ; ; Swadeshi Cotton Mills vs Union of India,[1981] 2 SCR 533; Central Inland Water Transport Corporation vs Brojo Nath, ; Devadasan vs Union of India; , ; Birendra Kumar Nigam and 0rs. vs Union of India, W.P. Nos. 220 222 of 1963 decided on 133.64, referred to 4.2 The selections for IAS, IFS, and IPS Group 'A ' services and group 'B ' service are made by a combined com petitive examination and viva voce test. There cannot be any dispute that each service is a distinct and separate cadre, having its separate field of operation, with different status, prospects, pay scales, the nature of duties, the responsibilities to he post and conditions of service etc. Each of the services is founded on intelligible differentia which on rational grounds distinguishes persons grouped together from those left out and that the differences are real and substantial having a rational and reasonable nexus to the objects sought to be achieved. Therefore, once a candidate is selected and appointed to a particular cadre he cannot be allowed to say that he is at par with the others on the ground that all of them appeared and were selected by a combined competitive examination and viva voce test and that the qualifications prescribed are comparable. The classification of services is not based on artificial in equalities but is hedged within the salient features 55 and truly founded on substantial differences. Judged from this point of view, it is not possible to hold that the classification rests on an unreal and unreasonable basis and that it is arbitrary or absurd. [103C, 106C, 103 D E] 43 It cannot also be disputed that the candidates allocated to Group 'A ' services are more meritorious com pared to candidates allocated to Group 'B ' services. Conse quently, those allocated to Group ' B ' services get lower position compared to those allocated to Group A ' services. The pay scales in Group 'B ' services are comparatively less than those meant for IAS, IFS and IPS and Central Services Group 'A '. There is a clear cut separation on the basis of ranking and merit and, therefore, it cannot be said by any stretch of imagination that both Group 'A ' and Group 'B ' services fail under one and the same category but on the other these services are two distinct and separate catego ries falling under two different classifications. Therefore, there is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires of Article 14 or Article 16 of the Constitution of India. [97 B C, 106G] 5. In the normal course, a candidate belonging to SC/ST category can enjoy all the benefits under the rules and regulations. But the restriction imposed under the second proviso is only for a specified category of candidates by treating all such candidates at par and without making any exception to the candidates belonging to SC/ST. The submis sion that the second proviso is an independent one does not merit consideration because the second proviso to Rule 4 begins with the words 'provided further . . " which expression would mean that a strict compliance of the second proviso is an additional requirement to that of the substan tive rule 4 and the first proviso. The expression "provided further" spells out that the first proviso cannot be read in isolation or independent of the second proviso but it must be read in conjunction with the second proviso. [89 C E] 5.1 Once the candidates belonging to SC or ST get through one common examination and interview test and are allocated and appointed to a service based on their ranks and performance, and brought under the one and the same stream of category, then they too have to be treated among all other regularly and lawfully selected candidates and there 56 cannot be any preferential treatment at that stage on the ground that they belong to SC or ST, though they may be entitled for all other statutory benefits such as to the relaxation of age, the reservation etc. The unrestricted number of attempts, subject to the upper age limit, is available to the SC/ST candidates in the normal course but that is subject to the second proviso because when once they are allocated and appointed along with other candidates to a category/post, they are treated alike. Therefore, there is no merit in the submission that the second proviso is not applicable to the candidates belonging to SC or ST. [89 E G,91H, 92 A] 5.2 There may be some hard cases, but the hard cases cannot be allowed to make bad law. As long as the second proviso does not suffer from any vice, it has to be con strued, uniformly giving effect to all those falling under one category in the absence of any specific provision ex empting any particular class or classes of candidates from the operation of the impugned proviso and no one can steal march over others failing under the same category. Hence the right of candidates belonging to SC and ST competing further to improve their career opportunities is limited to the extent permissible under the second proviso 10 Rule 4 read with Rule 17 of the C.S.E. Rules. [91 F G] C.A. Rajendran vs Union of India & Ors '. , ; ; State of Kerala vs N.N. Thomas, ; ; Akhil Bharriya Soshit Karamchari Sangh/Railway) vs Union of India [1963] Suppl. 1 SCR 439; Triloki Nath vs State of J&K ; ; T. Devadasan vs Union of India, ; ; Comptroller and Auditor General of India vs K.S. Jaganna than; , ; Janki Prasad vs State of J&K, ; ; General Manager vs Rangachan, AIR [1962] SC. 36, referred to. There is no denying the fact that the civil service being the top most service in the country has got to be kept at height, distinct from other services since these top echelons have to govern a wide variety of departments. Therefore, the person joining this higher service should have breadth of interest and ability to acquire new knowl edge and skill since those joining the service have to be engaged in multiple and multifarious activities. In order to achieve this object, the selectees of this higher civil services have to undergo training in the National Academy/Training institutes wherein they have to undergo careful programme of specialized 57 training as probationers. The various schemes of training are based on the conviction that splendid active experience is the real training and the selectees are to be trained in the academies in all kinds of work they have to handle afterwards with a band of senior chosen officers. [92 H, 93 A B] 6.1 The rationale underlying the course at the training centres is that the officers of civil services must acquire an understanding of the constitutional, social, economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the service to which he is ap pointed. The initial training is in the nature of providing young probationers an opportunity to counter act their weak points and at the same time develop their social abilities and as such the aspect of training is the most important of all. [93 C D] Hermer Fines, the Theory and Practice of Modern Govern ment; United Nations Handbook on Civil Service Laws and Practice, referred to. Lila Dhar vs State of Rajasthan & Ors., [1981] 4 SCC 159, referred to. 6.2 The effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the top most service of the country is not wasted and does not become fruitless during the training period is in consonance with the provi sions of Article 51 A (j) of the Constitution. [77 A] 63 There is a dynamic and rational nexus between the impugned second proviso and the object to be achieved.

vil Appeal No. 683 of 1968. Appeal under section 116 A of the Representation of the People Act, 1951 from the Judgment and order dated January 10, 1968 of the Judicial Commissioner of Manipur in Election Petition Case No. 2 of 1967. D. Goburdhun, for the appellant. K.R. Chaudhuri, K. Rajendra Chaudhuri and C.S. Sreenivasa Rao, for respondent No. 1. The Judgment of the Court was delivered by Hidayatullah, C.J. This is an appeal from the Court of the Judicial Commissioner for Manipur at Imphal under section 116A of the Representation of People Act. The appeal arises 'from an election to the Outer Mareput Parliamentary Constituency at which the appellant, who was the returned candidate, and five others were the contesting candidates. This Outer Mareput Constituency comprised 14 Assembly constituencies. The dates of poll were 15th, 20th, 24th, 28th February, and 6th March, 1967 and the time of poll was from 7 30 A.M. to 4 30 P.M. This constituency had 2,19,554 registered voters. The total number of votes polled was 1,20,008. Of these 4,166 votes were declared invalid. The returned candidate received 30,403 votes as against the next candidate who received 28,862 votes. There was thus a majority of 1,541 votes in favour of the returned candidate. The result of the poll was declared on March 10, 1967. The candidate who secured the second largest number of votes filed this election petition on April 20, 1967. The main ground of attack, which succeeded in the Judicial Commissioner 's Court, was that the poll was disturbed because of numerous circumstances. These were that the polling centres were in some cases changed from the original buildings to other buildings of which due notification was not issued earlier with the result that many of the ' voters who went to vote at the old polling booths found no arrangement for poll and rather than go to the new polling station, went away without casting their votes. 'The second ground was that owing to firing by the Naga Hostiles, the voting at some of the polling stations was disturbed and almost no votes were cast. It was lasfly contended that the polling hours at some stations were reduced with the result that some of the voters who went to the polling station were unable to cast their votes. 639 It is hardly necessary to set down here the names of the polling stations at which these things happened. In any event, these pelting stations carry rather strange names and it would not help to state them here. The net result may be stated. It was this there were 12 polling centres, at 4 of which the venue for the poll was altered. There were 6 others at which the firing disturbed the poll and In 2 of the polling. centres not a single vote was cast and lastly in one of the polling centres out of 513 voters only one voted. The following chart discloses the break up of the figures at these polling centres: SR. No. of No. of No. Name of the polling stations voters votes (as notified) attached actually to the cast station 1.Tungam Khullen High School . . 1,242 522 2.ChandelJunior Basic School . . 1,060 172 3. Purum Pantha L.P. School . . 654 338 4. Litan L.P. School . . 449 347 5. Toupokpi M.E. School . 584 128 6.Chakpikarong M.E School. . 715 67 7.Bolyang Tampak L.P. School. . . 868 249 8.Oklu L.P.School . . . . 725 17 9.Lorong Khullen J.B.School. . 581 53 10.Lakhmei M.E.School. . . 665 11.Nagri Khullen M.E.School . . 564 12.Karong Dak Bumgalow. . . 513 1 It will be noticed from this chart that out of 8,620 votes which could have been polled, only 1,894 votes were actually received. In other words, 6,726 voters did not vote or could not vote. The election petitioner who ran a deficit of 1,541 votes claimed in the election petition that the result of the poll was prejudicial to him in particular and friar by the non compliance with the provisions of the Act and its rules, the result of the election in so, far as the returned candidate was concerned had been materially affected. The Judicial Commissioner after examining a large number of witnesses on both sides, came to the conclusion that there was this flaw in the election for this constituency. He went further and held that the result of the election in so far as it concerned the returned candidate had been materially affected. He, therefore, avoided the election and ordered fresh poll in the 12 polling stations. In this appeal, the returned candidate attempted to establish that polling was not so disorganised that it could be said that 340 it did not take place. He attempted to show that even where the polling station was shifted, it was a matter of few hundred yards and the people went to vote knew the new location of the polling booths. He also submitted that, in any event, this had, affected all the contesting candidates equally and the election. petitioner could not, therefore, be said to have suffered more ' than the other candidates. Lastly, the returned candidate contended that it had not been established in accordance with the ruling of this Court in Vashist ,Narain Sharma vs Dev Chandra and others(1) that the result of the election had been materially affected so far as his election was concerned. In this connection, the returned candidate relies upon the majority which he had already obtained and refers to the votes which had not been cast, pointing out that on the general pattern of the voting as disclosed in the case it cannot possibly be said that the election petitioner would have carried such a majority from those votes as to neutralise the successful lead he had already established. The election petitioner as the answering respondent tried to establish that the pattern of the voting clearly showed that the returned candidate had obtained a fortuitous lead which was capable of being wiped off if the voting had proceeded according to the Act and the Rules. Both sides relied upon statistics to establish their cases. The election petitioner in addition relied upon the evidence of witnesses which he pointed out had been accepted by the Juclicial Commissioner and upon the observations of this Court contended that we should not lightly depart from the findings given by the learned Judicial Commissioner. This case without entering into the numerous details, is confined to the above contentions of the rival parties. To begin with, it is hardly necessary for us to go over the evidence with a view to ascertaining whether there had been or not a breach of the Act and the rules in the conduct of the election at this constituency. We may say at once that having read the evidence we are in entire agreement with the decision of the learned Judicial Commissioner that by the change of venue and owing to the firing, a number of voters probably failed to record their votes which they would have gone if the poll had gone on smoothly and according to rules. This shows that the matter is governed by section 100(1) (d) (iv). The question remains still whether the condition precedent to the avoidance of the election of the returned candidate which requires proof from the election petitioner 'that the result of the election had been materially affected in so far as the returned candidate was concerned, has been established in the present case. This part of the case depends upon the ruling of this Court in (1) [1955] 1 section C.R. 509. 641 Vashist Narain Sharmas case(1). In that case there was a difference of 111 votes between the returned candidate and the candidate who had obtained the next higher number of votes. One candidate, by name Dudh Nath Singh, was found not competent to stand and the question arose whether the votes wasted on Dudh Nath Singh, if they had been polled in favour of the remaining candidates, would have materially affected the fate of the election. Certain principles were stated as to how the probable effect upon the election of the successful candidate of votes which were. wasted (in this case not cast) must be worked out. Two witnesses were brought to depose that if Dudh Nath Singh had not, been a candidate for whom no voting had to be done, the voters would have voted for the next successful candidate. Ghulam Hasan, J. did not accept this kind of evidence. It is observed as follows: "It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner. is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. " In another passage, it is observed: "It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and ' it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the. duty has been discharged. " Further it is pointed out that the burden of proof in England the exact reverse of that laid down by the Indian statutes. There, the returned candidate has to prove that the non compliance or mistake does not affect the result of the election. In our country, the burden is upon the election petitioner to 'show affirmatively that the result of the 'election has been materially ' affected. (1) ; 642 Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the. poll would have gone against the returned candidate if the breach the rules had not occurred and proper poll had taken place at ' all the polling stations including those at which it did not. The evidence in tiffs case which led by the election petitioner is the kind of evidence which was criticised by this Court. Witnesses have stated that a number of voters did not vote because of the change of venue or because of firing and that they had decided to vote en bloc for the election petitioner. This kind of evidence is merely an assertion on the part of each witness, and he cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates. We cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others. This conclusion is further fortified if one examines the polling pattern in this election. To begin with, it is wrong for the election petitioner to contend that of the 6,726 votes which were not cast, he would have received all of them. The general pattern of poll not only in this constituency but in the whole of India is that a11 the voters do not always go to the polls. In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes. Even if we were to add to them the 6,726 votes, it is obvious that not more than 5 5 % of the voters would have gone to the polls. This immediately cuts down the figure of 6,726 to a little over half and the margin from which the election petitioner could claim additional votes therefore. becomes exceedingly small. When we turn to the pattern of voting, as is disclosed at the various polling booths at which the voters had in fact gone, we get reasonably clear picture. At 9 polling centers, 1893 votes were actually polled. Of these, 524 votes were received by the election petitioner and 413 by the returned candidate and 1,097 votes went to the other candidates. In other words, out of 20 votes, 11 went to other candidates, 5 to the election petitioner and 4 to the returned candidate. If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast, it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he labored and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes. It is pointed out that at Tungam Khullen High 643 School, he received 401 out of 522 votes. If this had been the general pattern, one could say that he would have got almost the votes that had not been cast. But look at the other polling stations. At Litan L.P. School, he obtained 41 out of 347, at Chandel Junior Basic School he got 34 out of 172, at Purum Pantha L.P. School he got 11 out of 338, at Toupokpi M.E. School 18 out of 128, at Oklu L.P. School 8 out o.f 17, at Chakpi Karong M.E. School 2 out of 67, at Larong Khullen L.P. School 1 out of 53 and at Bolyang Tampak L.P. School 8 out of 249. While we do not think that statistics can be called in aid to prove such facts, because it is notorious that statistics can prove anything and made to lie for either case, it is open to us in reaching our conclusion to pay attention to the demonstrated pattern of voting. Having done so, we are quite satisfied that 1,541 votes could not, by any reasonable guess, have been taken off from the lead of the returned candidate so as to make the election petitioner successful. In so far as the other contesting candidates are concerned, they had received so few votes that even if they had received all the votes that had not been cast, it would not have mattered little to the result of the election. The learned Judicial Commissioner reached his conclusion by conrefitting the same error which was criticised in Vashist Narain Sharing 's(1)) case. He took the statement of the witnesses at their word and held on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner. For this, there is no foundation in fact; it is a surmise and it is anybody 's guess as to how these people, who did not vote, would have actually voted. In our opinion, the decision of the learned Judicial Commissioner that the election was to contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to section 100( 1 )(d)(iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it. is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged. The result is Sup. Cl/69 10 644 that the appeal must succeed and it is allowed. The election of the returned candidate will stand. The costs in the Judicial Com.missioner 's Court will be as ordered. The election petitioner who apparently was not so much at fault as the Government in changing the polling stations, shall bear only half the costs of the appellant in this Court. Y.P. lippeal allowed.

One T filed a suit claiming Rs. 3 lacs damages for libel against a newspaper. The suit was decreed by a Judge of the Bombay High Court. Thereafter, an article was published in a publication brought out by the first appellant and of which the second appellant was the editor, printer and publisher. The article contained insinuations that there was a connection between a loan of Rs. 10 lacs, granted to a firm in which the Judge 's brother was a partner, and the judgment m the defamation case; and that the Judge knew, about the loan having been granted to the firm. The appellants were found guilty of contempt of court. In appeal to this Court, it was contended that: (1) In the article no aspersion was cast on the integrity of the Judge nor was any imputation of dishonesty made; (2) Proceedings for contempt for scandallzing a Judge have become obsolete, the proper remedy being for the/judge to take action for libel; (3) The allegations were made in the bona fide belief that they were truthful and there was no evidence that the Judge did not know about the transaction; and (4) The statements, if at all, amounted to a charge of bias against the Judge and could not be regarded as contempt. HELD: (1 ) The obvious implications and institutions made in the various paragraphs of the article, read as a whole, create a strong judicial impact on the mind of the reader about the Jack of honesty, integrity and impartiality on the part of the Judge in deciding the defamation suit. [785 C D] It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a Judge in his judicial capacity or even to make a proper and fair comment on any decision given by him. But, if an article attributes improper motives to the Judge, it not only transgresses the limits of fair and bona fide criticism but has a clear tendency to affect the dignity and prestige of the court and would amount to contempt of court. [785 A, 791 F] (2) It will not be right to say that committals for contempt of court for scandalizing the court have become obsolete. [791 D] (a) But such summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. [791 E] (b) There is a distinction between a mere libel or defamation of a judge and what amounts to contempt of court. The tests are: (i) Is the impugned publication a mere defamatory attack. on the Judge or is it calculated to interfere with the due course of Justice or the proper administration of law by his court? and (ii) Is the wrong done to the Judge personally or is it done to the public? The publication of a disparaging 780 statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the courts administration of justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. [791 G H; 792 A C] B.R. Reddy vs State of Madras, ; , Re: The Editor. Printer and Publisher of the 'Times of India ' and in re: Aswini Kumar Ghose vs Arabinda Bose, ; , Brahm Prakash Sharma vs State of U.P., ; Re: Hira Lal Dixit & Ors. ; and State of M.P. vs Revashankar , followed. Re: Read and Huggonson, 2 Atk. 471, In the matter of a Special Reference from the Bahama Islands , McLeod vs St. Aubyn, , Reg. vs Gray, ; Rex vs Editor of the New Statesman ; Ambard vs Attorney General for Trinidad and Tobago, (.1936) A.C. 322, Debi Prasad Sarma .v. The 'King Emperor. 70 I.A. 216 and Reg. vs Commissioner of Police the Metropolis, Ex parte Blackburn, , referred to. (3) Assuming good faith can be held to be a defence in a proceeding for contempt, in the present case, no attempt was made to substantiate 'that the facts stated in the article were true or were rounded on correct data. On the other hand, it was established that some of the material allegations were altogether wrong and incorrect. [792 E F] B.R. Reddy 's case; , , referred to. (4) The mere fact that his brother happened to have a pecuniary interest in the firm could not per se establish that the Judge would also have a financial interest therein so as to constitute legal bias. [792 H; 793 A]

Criminal Appeal No. 480 of 1988. From the Judgment and Order dated 23/24.7.1987 of the Bombay High Court in Crl. W.P. No. 356/1987. Dr. Y.S. Chitale, A.M. Khanwilkar ad A.S. Bhasme for the Appellants. U.R. Lalit, V.N. Ganpule and S.K. Angihotri for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Leave granted. Being more concerned with the law adumerated by the High Court of Bombay rather than with the quashing of the order of detention passed against a detenu by name Bhadresh Mafatlal Shah, son of respondent No. 1 herein, under Section 3(1) of the (hereinafter called the COFEPOSA Act) the State of Maharashtra has filed this appeal by special leave against the order of the High Court in Crl. Writ Petition No. 356 of 1987. The High Court has quashed the order of detention on the ground that Shri D.N. Capoor, Officer on Special Duty and Ex officio Secretary to the Government of Maharashtra, Home Department (hereinafter referred to as D . N .Capoor only) who had passed the order of detention had only communicated to the detenu that "he had a right to make a representation to the State Government as also to the Government of India against the order of detention" and had failed to communicate that "he had also a right to make a representation to the Detaining Authority him self" the constitutional safeguards and imperatives under Article 22(5) had been violated in as much as the detenu had been deprived of his right to make a representation to the Detaining Authority himself before availing of his right to make further representation to the State Government and the Central Government. The principal challenge in this appeal is to the proposition of law enunciated by the High Court. We may now have a look at the facts. On 21.8.86 the detenu was caught in the act of transporting ten gold biscuits of foreign origin. On 23.10.86 the Collector of Central Excise and Customs sent a proposal to the State Government for action being taken against the detenu under PG NO 831 the COFEPOSA Act and on 17.11.86 he furnished, in response to Government 's query, some additional information about the detenu. On 2.2.87 an order of detention under Section 3(1) of the COFEPOSA Act was passed by D.N. Capoor in exercise of the powers specially conferred upon him by the Government of Maharashtra for the purpose of Section 3 of the Act. In the grounds of detention the detenu was informed that he had a right to make a representation to the State Government as also to the Government of India against the order of detention. On 15.2.87 the order of detention as well as the grounds of detention were served on the detenu. On 14.3.87 the detenu preferred a representation addressed to D.N. Capoor and it was forwarded by the Superintendent, Central Prison, Nasik with a covering letter dated 17.3.87 to the Government. The Government after calling for remarks from the Assistant Collector of Customs and Central Excise, Pune rejected the representation of the detenu by order dated 3.4.87 and the said order was communicated to the detenu on 4.4.87 through the Superintendent of the Central Prison, Nasik. In the meanwhile on 12.3.87 the case of the detenu was referred to the Advisory Board. On 8.5.87 the Advisory Board considered the detenu 's case and sent a report justifying the detention and thereafter the State Government confirmed the detenu 's detention. In the month of March, 1987 the first respondent being the Detenu 's mother, filed a petition under Article 226 of the Constitution before the High Court of Bombay for a writ being issued for the order of detention being quashed. Though several grounds were set out in the writ petition, they were all given up and the counsel appearing on behalf of the detenu confined the challenge to the validity of the detention order on one ground alone. The ground of attack was to the following effect: "as the order of detention had been passed by D.N.Capoor in his capacity as a person specially empowered by the Government of Maharashtra to issue the order of detention under Section 3(1) of the COFEPOSA Act, the detenu had a right to make a representation to him in the first instance and only thereafter to make representation to the State Government or to the Central Government if need be. In the grounds of detention the detenu had only been informed that he had a right to make a representation to the State PG NO 832 Government as also to the Government of India against the order of detention, but he had not been communicated that he had also a right to make a representation to the Detaining Authority i.e. D.N. Capoor him self. Failure to notify the detenu of his right to make a representation to the Detaining Authority violated the constitutional provisions of Article 22(5) inasmuch as the detenu had been deprived of his right to make a second representation to the State Government in the event of the Detaining Authority D.N. Capoor rejecting his representation. This contention found acceptance with the High Court and the High Court made the Rule absolute and quashed the order of detention. The challenge in this appeal is not only to the release of the detenu but to the principle of law formulated by the High Court to set aside the order of detention. Before proceeding further we may state for purposes of record, that an attempt was made by the State before the High Court that D.N. Capoor had not passed the order of detention solely in exercise of his powers as a specially empowered officer of the State to make an order under Section 3(1) but also as an officer authorised to act On behalf of the Government under the Standing Rules framed under the Rules of Business of the Government of Maharashtra. The High Court declined to accept this contention as there was no proof that D.N. Capoor had been empowered under the Standing Rules to act on behalf of the Government and furthermore the Central Government counsel had also conceded that no such authorisation had been made in favour of D.N. Capoor under the Rules of Business. No attempt was made before us to dispute this finding of the High Court and therefore the settled position is that the detention order had been passed by D.N. Capoor solely in his capacity as an officer specially empowered by the Government to exercise powers under Section 3(1) of the COFEPOSA Act and not as one empowered to act on behalf of the Government under the Rules of Business. Therefore what falls for consideration in the appeal is whether by reason of D.N. Capoor having passed the order of detention only in exercise of his special empowerment to act under Section 3(1) of the Act and not in exercise of any right given to him under the Rules of Business of the Government, he was under a constitutional obligation to communicate to and afford opportunity to the detenu to make a representation to himself in the first instance before the detenu availed of his right to make representations to the State Government PG NO 833 and the Central Government. It was urged by Dr. Chitale on behalf of the State, that neither Article 22(5) of the Constitution nor the provisions of the COFEPOSA Act afford scope for any differentiation being made between an order of detention passed by a specially empowered officer of the State Government or the Central Government as the case may be, and an order of detention passed by the State Government or the Central Government itself, as the case may be, and for holding that if an order of detention falls under the former category, the Constitution obligates a different kind of procedure to be followed in the matter of affording opportunity to the detenu to make his representations against the order of detention. He also stated that the theory that a detenu had a right to have his representation considered by the very same officer who had passed the order of detention has been exploded in Kavita vs Maharashtra, ; Smt. Masuma vs State of Maharashtra & Anr., and therefore the High Court was not right in holding that the detenu had such a right. He also urged that if the view taken by the High Court was not corrected it would lend to several anomalies and even to the defeasance of the COFEPOSA Act itself in certain situations. Refuting Dr. Chitale 's contentions, Mr. U.R. Lalit, learned counsel appearing for the detenu stated that unlike in other Preventive Detention Acts such as the National Security Act. , there is no provision in the COFEPOSA Act for confirmation by the Government of an order of detention passed by an officer specially empowered under Section 3(1) of the COFEPOSA Act and as such the officer issuing an order of detention under the Act constitutes the Detaining Authority of the detenu and hence the Detaining Authority is under an obligation to afford opportunity to the detenu to make a representation to himself in the first instance before the detenu avails of his right to make representation to the State Government and then to the Central Government. Mr. Lalit relied upon the decisions of this Court in Santosh Anand vs Union of India, and Pushpa vs Union of India, [1980] suppl. scc 391 for sustaining the judgment of the High Court. Yet another argument of Mr. Lalit was that since Article 22(5) mandates the affording of opportunity at the earliest point of time to the detenu to make his representation, it must be interpretatively construed that the Detaining Authority is under an obligation to inform the detenu and afford him opportunity to make a representation to the very Authority concerned and failure to give such an opportunity would PG NO 834 amount to a denial to the detenu of his constitutional rights. We shall now examine the divergent contentions advanced before us in greater detail. The questions that fall for consideration may broadly be enunciated as under. (1) Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of Section 3(1) by the respective Government, make him the Detaining Authority and not the State Government or the Central Government as the case may be, and obligate him to inform the detenu that he has a three fold opportunity to make his representations i.e. the first to himself and the other two to the State Government and the Central Government. (2) Whether for the purposes of the Act, there is any difference between an order of detention passed by an officer of the State Government or the Central Government, solely in exercise of the powers conferred on him under Section 3 by the respective Government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to conferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the Government, to act on behalf of the Government: (3) Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act under Section 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government. The Constitution, while recognising the necessity of laws to provide for preventive detention, has also prescribed the safeguards which should be observed for detaining persons without trial under laws enacted for placing persons under preventive detention. Article 22 sets out the imperatives that should be observed, but for our purpose, it is enough if Clause (S) of the Article is alone extracted. It is in the following terms. "22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention PG NO 835 the authority making the order shall, as soon as may be, communicate 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." Article 22(5) has been construed as under in Abdul Karim vs W. Bengal; , at page 486. "A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of article 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The Constitution of an Advisory Board under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was no express language in article 22(5) requiring the State Government to consider the representation of the detenu. But it is a necessary implication of the language of article 22(5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by article '2(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. " Vide also John Martin vs State of West Bengal, ; at 839; Jayanarayan Sukul vs State of W.B., ; and Haradhan Saha vs State of W. B., [ ; We can, therefore, conclude without further discussion that on the plain language of Article 22(5) that Article 22(5) does not provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Article 22(5) to make a representation PG NO 836 to D.N. Capoor himself as he had made the order of detention. Turning now to the COFEPOSA Act, the relevant provisions to be noticed are Sections 2, 3, 8 and 11. In Section 2 which is the definition section, the words "appropriate government" and "detention order" have been defined as under: "Section 2. (a) "appropriate Government" means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or a person detained under such order, the State Government: (b) "detention order" means an order made under section 3". Section 3 is the Section which confers powers on the Central Government and the State Government to make an order, either by itself or through one of its officers having the prescribed rank and specially empowered for the purpose of the section by the Government to which he belongs for detaining a person under preventive custody without trial. The section reads as follows: "Section 3 . ( 1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from (i) smuggling goods. or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or PG NO 837 (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained. (2) When any order of detention is made by a State Government or by an officer empowerd by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. " Section 8, which has been enacted to comply with the constitutional imperative in Article 22(4) enjoins the Central Government and the State Government to constitute one or more Advisory Boards and obligates the concerned government to refer to the Advisory Board the case of every detenu ordered to be detained by the said government within a period of five weeks from the date of detention. For our purposes it would suffice if clause (b) of section 8 alone is quoted. The clause reads as follows: "Section 8(b) Save as otherwise provided in Section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub clause (a) of clause (4) of Article 22 of the Constitution. " section 11 which is the last of the section requiring PG NO 838 notice per tains to the powers of revocation of the State Government or the Central Government as the case may be. The relevant is in the following terms: Section 11(1) Without prejudice to the provisions of Section 21 of the , a detention order may, at any time, be revoked or modified (a) Notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; (b) Notwithstanding that the order has been made by an officer of the Central Government or by a State Government. by the Central Government. (2 omitted) ' ' On a reading of the abovesaid provisions, it may be seen that the power to detain a person under the Act has no; only been conferred on the Central Government and the State Government but provision had also been made for the Central Government and the State Government to specially empower any of its officers holding the minimum prescribed rank to pass an order of detention under Section 3(1). We may now examine the scheme of the Act and have a closer look at the provisions set out above to find out whether the Act provides for a differentiation being made between detention orders made by the Government and those made by specially empowered officers so as to confer an additional right of representation to detenus subjected to detention under detention orders falling in the latter category. At the outset, it needs no saying, that in Government be it Central or State, has to function only through human agencies, viz. its officers and functionaries and that it cannot function by itself as ar. abstract body. Such being the case, even though Section 3(1) provides for an order of detention being made either by the Central Government or one of its officers or the State Government or by one of its officers, an order of detention has necessarily to be made in either of the situations only by an officer of the concerned Government. It is in acceptance of this position we have to see whether an order of detention, if passed by an officer of the Government specially empowered under Section 3(1) but not further empowered under the Rules of of the Government to act would PG NO 839 have the effect of making the concerned officer the Detaining Authority and not the concerned Government itself. The answer to the question has to be necessarily in the negative for the following reasons. It has been specifically provided in Section 2(a) that irrespective of whether an order of detention is made by the Central Government or one of its duly authorised officers, the "apropriate Government" as regard the detention order and the detenu will be the Central Government only and likewise whether an order of detention is made by a State Government or one of its duly authorised officers the "appropriate Government" would be the State Government only as regards the detention order and the detenu concerned. Secondly, irrespective of whether an order of detention is made by the State Government or by one of its officers, the obligation to forward, within ten days a report to the Central Government in respect of the order is cast only upon the State Government. Thirdly, in the matter of making a reference of the case of a detenu to the Advisory Board under Section 8(b), the duty of making the reference is cast only on the Central Government or the State Government as the case may be, and not on the officer of the Central Government or the State Government if he makes the order of detention in exercise of the powers conferred on him under Section 3(1). Lastly, Section 11, which deals with the powers of revocation of the State Government and the Central Government provides that notwithstanding that on order of detention had been made by an officer of a State Government, the concerned State Government as well as the Central Government are entitled to revoke or modify the order of detention. Similarly, as per Clause (b) notwithstanding that an order of detention has been made by an officer of the Clentral Government or by a State Government, the Central Government has been empowered to revoke or modify an order of detention. The Section does not confer any power of revocation on an officer of the Central or State Government nor does it empower the Central or State Government to delegate the power of revocation to any of its officers. We may further add that even though Section 11 specifies that the powers of revocation conferred on the Central Government/State Government are without prejudice to the provisions of Section 11 of the , this reservation will not entitle a specially empowered officer to revoke an order of detention passed by him because the order of the specially empowered officer acquires deemed approval ' of the State or Central Government, as the case may be, automatically and by reason of such deemed approval the powers of revocation, even in terms of Section 21 of the will fall only within the domain of the State Government and/or Central Government. In satpal v.state of Punjab, at page 17 the nature of the power of revocation PG NO 840 conferred on the State and the Central Government came to be construed and the Court held that the power of revocation conferred on the appropriate Government under Section 11 of the Act is independent of the power of cofirming or setting aside an order of detention under Section 8(f). " It was further adumbrated as follows. "The power under Section 11(l)(b) may either be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Section 3(2), or, from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or not, it should revoke the order of detention in a particular case. The use or the words 'at any time ' under Section 11, gives the power of revocation an over riding effect on the power of detention under Section 3. " These observations were made by the Court when considering the question whether a detenu was entitled to concurrently make representations to the State Government and the Central Government against an order of detention passed by the State Government and whether in such circumstances the State Government could contend that the question of the Central Government considering the representation would arise only after the State Government had considered the representation and rejected it. Consequently, the resultant position emerging from the Act is that even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be, the said order will give rise to obligations to be fulfilled by the Government to the same degree and extent to which it will stand obligated if the detention order had been made by the Govenment itself. If that be so, then it is the concerned Government that woud constitute the Detaining Authority under the Act and not the officer concerned who made the order of detention, and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though an order of detention. his constitutional obligation is only to communicate expeditiously to the deter;u the grounds of detention and also afford him opportunity to make representation to the appropriate Governments against his detention. The only further duty to be performed thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules of PG NO 841 Business of the Government to deal with such representation if the detenu addresses his representation to the officer himself. We may point out that unlike in other Preventive Detention Acts such as the National Security Act, Maintenance of Internal Security Act, Preventive Detention Act etc. the COFEPOSA Act does not provide for any approval by the Government of an order of detention passed by an officer specially empowered to make a detention order. In all the above said Acts, an order of detention passed by an officer specially empowered under the Act will cease to have force after the expiry of the number of days prescribed under the relevant Act unless the said order is approved by the Government within that period. On the contrary, the COFEPOSA Act does not provide for the State Government or Central Government passing an order of approving of a detention order made by one of its officers and therefore the detention order will continue to be operative for the full period of detention unless the order is revoked by the State Government or the Central Government or is quashed by the Court for any reason. This is an additional factor to show that an order of detention passed by an officer has the same force and status as an order of detention passed by the Government itself and this could happen only if an order of detention made by an officer is treated as an order of detention made by the Government itself, although through the instrumentality of an officer empowered under Section 3. It is also relevant to clarify at this juncture the position as regards an order of detention passed by an officer specially empowered under Section 3(1) vis a vis an order of detention passed t y another officer who besides being empowered to act under Section 3(1) i also conferred authority under the Rules of Busines of the Government to act on behalf of the Government this difference in the conferment of powers upon the officers falling under the two categories can not have any impact on the nature of the detention orders respectively passed by them because the common factor entitling the officers falling in the two classes is their empowerment under Section 3(1) of the Act. Without such empowerment an officer, even if he be empowered to act on behalf of the Government under the Rules of Business, cannot pass an order of detention against anyone. If this position is realised. then it follows that there is no scope for contending that the deiention order made by an officer empowered to act under the Act but not having additional empowerment under the Rules of Business of the Government will not have the effect of making the Government the detaining authority and instead would make the officer PG NO 842 alone the detaining authority and by reason of it stand obligated to afford opportunity to the detenu to make a representation to himself before making his representation to the State Government and the Central Government. It is also relevant to note that the Act confers powers of revocation only upon the State Government and the Central Government and no provision is made for an officer making an order of detention to exercise powers of revocation. When such is the case, any insistence upon the officer making the detention order considering the representation of the detenu himself will be nothing but a futile and meaningless exercise. It will therefore, not be to the advantage of the detenu if it were to be held that in all cases where an order of detenution is passed by an officer, the very officer should consider the representation in the first instance and only thereafter the detenu can approach the State Government and the Central Government. Moreover, if for argument 's sake it is to be assumed that an officer passing an order of detention is uder a duty to afford the detenu an opportunity to make a representation to himself in order to give relief to him, it may lead to the abuse of powers vested in the officer. The possibility of an officer misusing his powers and passing an order of detention against a person and then revoking it in order to seek profit for himself or for other ignoble means, however remote it may be, cannot be ruled out. This aspect of the matter has been touched upon in Raj Kishore Prasad, and the Court which was dealing with the case of a detenu detained under the Natioal Security Act has set out the need as to why a representation made by a detenu against an order of detention made by an officer of the Government should be considered by the Government itself and not by the officer concerned. The relevant passage reads as follows: "The contention is that constitutionally speaking a duty is cast on the detaining authority to consider the representation. That is of course true. But in view of the scheme of the Act, Parliament has now made it obligatory on the appropriate Government to consider the representation. This is done presumably to provide an effective check by the appropriate Government on the exercise of power by subordinate officers like the District Magistrate or the Commissioner of Police. Therefore, if the appropriate Government has considered the representation of the detenu it cannot be said that there is contravention of Article 22(5) or there is failure to consider the representation by the detaining authority. " PG NO 843 We have already pointed out that unlike in other preventive detention acts, the COFEPOSA Act does not provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and, consequently, an order of detention passed by an officer acquiries 'deemed appvoal ' by the Government from the time of its issue and by reason of it, the Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition. We shall now see whether there is any logic or rational behind the contention that since D.N. Capoor had made the order of detention, the detenu was entitled, as of right to make a representation to the very same officer and have the same considered by him, in the first instance before the detenu availed of his right to make a representation to the State Government and then if need be to the Central Government also. The fallacy and misconception underlying such a contention has been lucidly brought out in Kavita vs Maharashtra, at 146 and again in Masuma vs Maharashtra, at 293. The relevant passage in Kavita 's case reads as under: "It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant. There is no substance in this suggestion. The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentality of Shri Samant, a Secretary to Government auhorised to so act for the Government under the Rules of Business. Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. In Masuma 's case the same view has been expressed: "It was the State Government which made the order of PG NO 844 detention and not P.V. Nayak in his individual capacity. The representation made by the detenu against the order of detention was also therefore required to be considered by the State Government and either it could be disposed of by P.V. Nayak acting for the State Government under the earlier Standing Order dated 18th July, 1980 or the Minister of State for Home could dispose it of under the later Standing Order dated 18th July. Whether P.V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and whatever be the instrumentality, whether P.V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation. The only requirement of Article 22(5) is that the representation of the detenu must be considered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government. There is no requirement express or implied in any provision of the COFEPOSA that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu: In fact, as pointed by Chinnappa Reddy, J. in Smt. Kavita vs state of Maharashtra, [1982] l SCR 138 a Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction. however, advantageous it may be to do so. if Moreover it would really be to the advantage of the detenu if his representation is not considered by the same individual but fresh mind is brought to bear upon it. We do not therefore, see any constitutional or legal infirmity in the representation having been considered by the Minister of State for Home. ' Mr. Lalit sought to distinguish these decisions by saying that in both the cases the Secretary to Government issuing the order of detention had the authority to act on behalf of the Government under the Rules of Business but D.N. Capoor had no such authority. Since we have pointed out that a detention order passed by an officer having PG NO 845 empowerment under the COFEPOSA Act to make an order of detention would also constitute an order of the Government by reason of deemed approval, we find no merit in the contention of Mr. Lalit. The ratio in these cases would have equal application to cases of the nature we have on hand. Leaving aside for a moment the absence of any basis in law or rationale for the contention that if an order of detention is made by a specially empowered officer of the Government, the detenu acquires a right to have his representation considered in the first instance by the very same officer and if he is not afforded such an opportunity, it will amount to a deprivation of his constitutional rights, let us view the matter from a practical aspect and on pragmatic considerations. If an order of detention is made by a specially empowered officer and if by the time the representation of the detenu is received by him, the officer is not there to consider the representation either by reason of his proceedinng on leave or falling sick or transfer or retirement or being placed under suspension or death, then the inevitable consequence would be that the detenu has to be invariably set at liberty solely on the ground that his representation had not been considered by the very same officer who had passd the order of detention. Can we conceive of such a situation or permit such consequences to follow when it is common knowledge that the services of a government officer in the same post for any length of time can never be guaranteed. As already stated, the officer may fall sick or he may proceed on leave on other grounds or he may retire from service or he may be transferred elsewhere due to exigencies of service etc. If therefore, we are to sustain the view taken by the High Court, it would lead to the position that even if an order of detention is made on very valid and justifiable grounds by a specially empowered officer, the sustainment of the order would depend upon extraneous factors such as the officer not falling sick or going on leave or retiring from service or being transrred etc. Surely, the Act and the Constitution do not envisage such situations. I. is because of these factors Dr. Chitale contended, and in our opinion very rightly, that if the view of the High Court is to be accepted it would often lead to a defeasance of the COFEPOSA Act itself and the purpose for which it was enacted. We will now consider the decisions relied on by Mr. Lalit for contending that the High Court has not balzed a new trail in holding that since D.N. Capoor was the detaining authority he should have communicated to and afforded opportunity to the detenu to make the representation to himself in the first instance while informing him that he had a right to make representations to PG NO 846 the State Government and the Central Government. The first two cases Jayanarain vs W. Bengal, ; and P.K. Chakrabarty vs W. Bengal, ; were cases pertaining to detention orders passed under the Preventive Detention Act by District Magistrate empowered under the Act to pass the detention orders. In both the cases the detention orders were quashed on the ground that the government had failed to consider the detenu 's representation expeditiously and instead had sought umbrage for its action on the ground it had awaited the opinion of the Advisory Board to which it had forwarded the detenu 's representation. While upholding the detenu 's contentions in each of the two cases it was observed in passing that "though Clause 5 (of Article 22) does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make representation and to consider it when so made . . " Abdus Sukkur vs The State of West Bengal, was a case relating to a detention order passed under the West Bengal (Prevention of Violent Activities) Act, by the District Magistrate, Bardna. Since the State Government had failed to consider the representation made by the detenu for a period of 27 days without giving satisfactory explanation for the delay, the detention order was quashed. In so doing the Court observed that 'the requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity." Vimal Chand vs Shri Pradhan & Ors., [ ; was a case where an order of detention was passed under the COFEPOSA Act by the Secretary, Government of Maharashtra, Home Department in exercise of the power conferred on him under Section 3(1) of the Act. The detention order was quashed by this Court on the ground that the Government had failed to consider the detenu 's representation expeditiously and instead had postponed consideration of the representation till the report of the Advisory Board was received. In the Course of the judgment it was observed that the detenu must be afforded the earliest opportunity of making a representation would be rendered illusory "unless there is a corresponding obligation of the detaining authority to consider the representation of the detenu as early as possible. " In Tarachand vs State of Rajasthan, AIR 1980 SC 2133 the PG NO 847 grievance of the detenu detained under the COFEPOSA Act was that he had sent representations to the detaining authority viz. The State Government and the Central Government on 23.2.1980 but there was a delay of 1 month and 5 days in his representation reaching the State Government and even then the State Government had failed to consider his representation and pass orders. While striking down the detention order the Court observed that "it is well settled that in case of preventive detention of a citizen, Article 22(5) of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority (State Government in that case) to afford the earliest opportunity to make a representation and to consider the representation speedily." The attempt of Mr. Lalit was to highlight the reference to the "detaining authority" in the general observations in the abovesaid cases by taking them out of their context and build up an argument that in all those decisions it has been laid down that there is a constitutional obligation on every detaining authority to afford opportunity to the detenu to make a representation to the detaining authority himself before making representations to the State Government and the Central Government. In order to point out the mis conception in the argument of Mr. Lalit we have set out in brief the facts of each case as well. There was no controversy in any of those cases as to whether the detenu 's representation should have been considered by the officer passing the order of detention or by the Government. On the other hand the challenge made in all those cases to the detention orders was on the ground there had been delay or failure on the part of the concerned Government in considering the representation. The observations in these decisions, therefore, do not have any relevance to the debate in this case. We then come to two other decisions of this Court which apparently lend support to Mr. Lalit 's contention. The more decisive one is Santosh Anand vs Union of India, L1981] 2 SCC 420. In that case an order of detention made by the Chief Secretary, Delhi Administration, acting as an officer specially empowered under Section 3 of the COFEPOSA Act was challenged on two grounds, viz. (a) that it was obligatory upon the detaining authority (Administrator) to consider the representation before sending it to the Advisory Board and (b) that in any event the detenu 's representation ought to have been considered and rejected by the detaining authority itself, namely, by the Chief Secretary but the same had been straight away considered and rejected by the Administrator, who under Section 2(f) of the Act was the State Government PG NO 848 for the Union Territory of Delhi, thus depriving the detenu of his remedy to approach the Administrator as a higher authority after the rejection of his representation by the detaining authority. The Court came to the view "that the continued detention of the detenu under the order dated April 3, 1979 is liable to be quashed on the second ground about which facts are clear and there is no difficulty in accepting the same. " The Court further held as follows: "Under Article 22(5), as interpreted by this Court, as also under the provisions of Section 11 of the COFEPOSA it is clear that a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach the Central Government to get the detention order revoked. " The Court further observed as follows: "It is thus very clear to us that the representation could be said to have been considered by the Chief Secretary at the highest but he did not take the decision to reject the same himself and for that purpose the papers were submitted to the Administrator who ultimately rejected the same. There is no affidavit filed by the Chief Secretary before us stating that he had rejected the representation The representation was, therefore, not rejected by the detaining authority and as such the constitutional sateguard under Article 22(5), as interpreted by this Court, cannot be said to have been strictly observed or complied with. " The next decision is Pushpa vs Union of India, The decision was rendered by a single judge constituting the Vacation Bench of the Supreme Court. That was also a case of a detenu under the COFEPOSA Act against whom an order of detention had been passed by the Chief Secretary to the Delhi Administration who was specially empowered under Section 3 of the Act. The detention was challenged on the ground that the representation sent by the detenu had been considered by the Chief Secretary himself, though he was not Competent to reject the representation and the representation had not been considered and rejected by the appropriate Government viz. the Administrator. The Court rejected the contention and held as follows: PG NO 849 "There is nothing in the scheme of Article 22 or the provisions of the COFEPOSA which requires that the representation ought always to be considered by the appropriate Government notwithstanding the fact that the order of detention has been made by an officer specially empowered in that behalf. Undoubtedly the power to revoke the detention order under Section 11 is conferred on the State Government and the Central Government whenever an order of detention is made by an officer of the State Government but that does not imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him, must of necessity be made and considered by the State Government. In fact, the representation can and ought to be made to the detaining authority because it is he who has to apply his mind to the facts of the case and it is he who has furnished the grounds of detention on which he has acted and it is he who has to be convinced that the action taken by him is unjustified and required reconsideration. After all the purpose of a representation is to convince the authority to reconsider its decision which has resulted in the detention of the detenu. The representation is not in the form of an appeal to the higher authority and, therefore ipso facto it must go to the State Government. Undoubtedly it would be open to the detenu to make a representation under Section 11 requesting either the State Government or the Central Government, as the case may be, to revoke the order of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to re consider the same. Therefore, if the detenu made the representation to the third respondent who had passed the detention order it was open to him to consider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the detaining authority and considered by him, to the State Government, would not vitiate the detention order." PG NO 850 Though these authorities lend apparent force to the contentions of Mr. Lalit we are of the view that they cannot be taken as decisive pronouncements on the question of law raised for consideration before us. In Santosh Anand 's case (supra) the challenge to the order of detention was on the grounds and this aspect of the matter has been noticed in Raj Kishor Prasad 's case (supra), while differentiating the decision. The Bench, however, did not go further into the matter for not following the ratio in Santosh Anand 's case (supra) because it was dealing with an order of detention passed under the National Security Act and Section 8 of the said Act specifically provided that the detenu must be afforded opportunity at the earliest point of time to make a representation to the appropriate Government and to the detaining authority. Apart from this fact we have to point out that we do not find any material to substantiate the view taken by the Bench that Article 22(5) has been interpreted by the Court and furthermore Section 11 of the COFEPOSA Act envisages that a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order etc. On the contrary, it has been held by a Bench of three judges in N.P. Umrao vs B.B. Gujral, [197912 SCR 315 at page 321 that "it is, therefore, well settled that in case of preventive detention of a citizen, the Constitution by Article 22(5) as interpreted by this Court, enjoins that the obligation of the appropriate Government to afford the detenu the opportunity to make a representation and to consider that representation is distinct from the Government 's obligation to constitute a Board and to communicate the representation amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. " It is pertinent to note that in that case the order of detention was made by the Additional Secretary to the Government of India, Ministry of Finance (Department of Revenue) but even so the Court held that the Government was the appropriate authority to consider the representation made by the detenu and the Government had fulfilled its constitutional obligation in that behalf. Besides we have already pointed out that Section 11 confers powers of revocation only on the State Government and the Central Government and the Act does not envisage or contemplate an officer of the State Government or the Central Government passing an order of detention also exercising powers of revocation. We must, therefore, hold that the decision in Santosh Anand 's case (supra) must stand confined to the facts of that case and it cannot be PG NO 851 treated as one in which a principle of law of general application in all cases has been enunciated. In fact we may appositely refer in this connection to a decision by a Bench of three Judges of this Court in Devji Vellabbhai Tandal vs Administrator, where it was held that it is only the administrator in the Union Territory of Delhi who is entitled to consider the representation of a detenu and reject the same or accept the same and revoke the order of detention. The pronouncement in this case, being one made by a Bench of three Judges, carries with it more binding force than the view taken in Santosh Anand 's case. Turning now to Pushpa 's case, apart from being a judgment rendered by a single judge constituting the Vacation Bench of the Court, can be distinguished on facts. The two representations made by the detenu, in that case, one through an advocate and the other by the detenu himself were both addressed to the Chief Secretary himself and secondly no representation was made by the detenu to the appropriate Government. These factors had influenced the Court to hold that the Chief Secretary had acted within his competence in considering the representation addressed to him and in rejecting the same and that if the detenu had any grievance he should have moved the State Govenment under Section 11 to invoke its powers of revocation. In such circumstances this decision cannot also be treated as one having precedential value. In the light of our discussion our answer to the three posers formulated earlier has to be in the negative. It, therefore, follows that we cannot accept or sustain the view taken by the High Court for quashing the order of detention passed against the detenu. Having settled the position of law, it only remains for us to consider whether the order of detention should be restored and the detenu sent back to custody. On this aspect of the matter Mr. Lalit fervently pleaded that this was not a case where the ends of justice required the detenu being arrested and placed in custody for the rest of the period of detention. He stated that the detenu was a young boy of 19/20 years and that he had already been in custody for 5 months and 3 weeks. It was further stated by him that no adverse information against the detenu had come to the notice of the authorities after he was set at liberty by the High Court. In such circumstances Mr. Lalit pleaded that the Court may allow the appeal by the State only in so far as the settlement of the question of law is concerned and not going to the extent of ordering the re arrest of the detenu. In support of his submission the learned counsel placed PG NO 852 reliance on State of Bombay vs Purshottam Jog Nayak, ; ,at 676 where the Court, following the precedent in King Emperor vs Vimal Bhai Deshpande, ILR 1946 Nagpur 651 at 655 proceeded to decide the appeal after making it clear that the State shall not in any event re arrest the detenu B who had earlier been detained under Section 3 of the Preventive Detention Act of I950. Dr. Chitale had no serious objection to the Court following the same procedure in this case. We, therefore direct that notwithstanding our holding that the High Court was in error in quashing the order of detention made against the detenu, he will not be re arrested and placed in custody for the rest of the period of detention. In the result the appeal is allowed and the judgment and order of the High Court are set aside but, however, the detenu 's release will not be effected. R. S . Appeal allowed.

The detenu, D.N. Shah, was caught on 23.10.1986 in the act of transporting ten gold biscuits of foreign origin. On 2.2.1987 D.N .Capoor, Officer on Special Duty and ex officio Secretary to the Government of Maharashtra, in exercise of the powers specially conferred upon him by the Government of Maharashtra, passed an order of detention against D.N. Shah under section 3(1) of the COFEPOSA Act. In the grounds of detention served on the detenu he was informed that he had a right to make a representation to the State Government as also to the Government of India. ^ The detenu 's representation addressed to D.N. Capoor was forwarded by the Superintendent, Central Prison, Nasik to the State Government who rejected the same. In March, 1987, the detenu 's mother, respondent No. 1, filed a petition in the High Court of Bombay challenging the detention order inter alia on the ground that the order of detention having been passed under section 3(1) by D.N. Capoor in his capacity as a specially empowered person, the detenu had a right to make a representation, in the first instance, to D.N. Capoor himself as the detaining authority before availing of his right to make further representation, and failure to notify him of this right in the grounds of detention violated article 22(5) of the Constitution. The PG NO 827 PG NO 828 High Court accepted this contention and quashed the order of detention. Before this Court the appellant contended that: (1) neither Article 22(5) of the Constitution nor the provisions of the COFEPOSA Act afforded scope for holding that if an order of detention was passed by a specially empowered officer of the State Government or the Central Government, a different kind of procedure had to be followed in the matter of affording opportunity to the detenu to make his representation against the order of detention, and (2) the High Court was not right in holding that the detenu had a right to have his representation considered by the very same officer who had passed the order of detention. The respondent, on the other hand, contended that unlike other Preventive Detention Acts such as the National security Act, etc. there was no provision in the COFEPOSA Act for confirmation by the Government of an order of detention passed by a specially empowered officer under section 3(1) of the Act and as such the officer issuing an order of detention constituted the Detaining Authority of the detenu. Allowing the appeal, it was, HELD: (1) On the plain language of Article 22(5), that article does not provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Article 22(5) to make a representation to D.N. Capoor himself as he had made the order of detention. [835G H; 836A] (2) Even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be, it is the concerned Government that would constitute the Detaining Authority under the Act and not the officer concerned who made the order of detention, and it is for that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5). and not to the officer making the order of detention. [840E G] (3) Though by reason of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to Communicate expeditiously to the detenu the grounds of detention and PG NO 829 also afford him opportunity to make representation to the appropriate government against his detention. [840G H] (4) Unlike in other preventive detention acts, the COFEPOSA Act does not provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and, consequently, an order of detention passed by an officer acquired 'deemed approval ' by the Government from the time of its issue, and by reason of it, the Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition. [843A B] (5) In view of the fact that the Act confers powers of revocation only upon the State Government and the Central Government and no provision is made for an officer making an order of detention to exercise powers of revocation, any insistence upon the officer making the detention order considering the representation of the detenu himself will be nothing but a futile and meaningless exercise. (6) Since it has been pointed out that a detention order passed by an officer having empowerment under the COFEPOSA Act to make an order of detention would also constitute an order of the Government by reason of deemed approval, this Court cannot accept or sustain the view taken by the High Court that a detenu had a right to have his representation considered by the very same officer who had passed the order of detention. [844H; 845A B] Kavita vs State of Maharashtra, ; ; Smt. Masuma vs State of Maharashtra. [1982] I SCR 288; Santosh Anand vs Union of India, ; Pushpa vs Union of India, [1980] Supp. SCC 391; Abdul Karim vs State of W. Bengal; , ; John Martin vs State of West Bengal, [ ; ; Jayanarayan Sukul v . State of W.B., ; Haradhan Shah vs State of W B. ; ; Satpal vs State of Punjab, ; Raj Kishore Prasad, ; P.K. Chakraharty vs State of W. Bengal; , ; Abdul Sukkur vs State of West Bengal ; Vimal Chand vs Shri Pradhan, [l979] 3 SCK 1007; Tarachand vs State of Rajasthan, AIR 1980 SC 2133; N.P. Umrao vs B.B. Gujral, ; ; Devji Vellabhai Tandal vs Administrator, ; State of Bombay vs Purshottam Jog Nayak, ; and King Emperor vs Vimal Bhai Deshpande. ILR 1946 Nagpur 651. PG NO 830

Special Leave Petition (Civil) Nos. 15054 57 of 1985. From the Judgment and Order dated 30.1.1985 of the Allahabad High Court in Sales Tax Revision No. 334, 418, 285 and 332 of 1984. S.C. Manchanda, R.S. Rana and Ashok K. Srivastava for the Petitioner. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an application for leave to 448 appeal under Article 136 of the Constitution against the Judgment and order of the High Court of Allahabad, dated 30th January, 1985. The respondent carried on the business at the relevant time in Tendu leaves. The respondent 's case was that there was no inter state sales of Tendu leaves in question. On the contrary, its case was that the entire sales of Tendu leaves were effected in Uttar Pradesh. This contention was not accepted by the assessing authority. Having failed in the first appeal, the assessee went up in second appeal and the Tribunal allowed the appeal and quashed the orders passed by the assessing authority as well as the Assistant Commissioner (Judicial). The Tribunal exhaustively discussed the facts. They found that the assessee carried on business in Tendu leaves and for the year 1976 77 the assessee had been assessed under Section 21 of the U.P. Sales Tax Act on inter state sales of Rs.21,050 to a tax of Rs.2,105 whereas the case of the assessee was that the inter state sales were nil. It was contended on behalf of the assessee that the assessee had effected the sales in U.P. According to the assessee, out of the above sales of Rs.21,050, Tendu leaves worth Rs. 10,000 were sold on 24th April, 1976 to Sri Gulam Mohammad of Kanpur and those worth Rs.11,050 were sold in cash at Lalitpur on 5th May, 1976. It was further contended that the assessee did not know if the purchasers had taken these Tendu leaves to places outside U.P. and even if they had so taken, the assessee could not be assessed to tax under the as the contract between him and the purchaser was to purchase goods in U.P. The Tribunal took notice of T.P. Form IV which is a transport permit issued by the Forest Department. The Forest Department had given in writing that this transport permit did not relate to sale but it was a certificate regarding the validity of Nikasi of Tendu leaves from the forest. It is well settled that even if it is established that the assessee had obtained T.P. Form IV that by itself will not show that the assessee had entered into inter state sales. Merely because T.P. Form had been issued, it does not follow that there were inter state sales. The principles of inter state sales were well settled. In Bengal Immunity Co. vs State of Bihar, (6 STC 446) Justice Venkatarama Ayyar had held that sale could be said to be in the course of inter state trade only if two conditions concur, namely, (1) a sale of goods and (2) a transport of those goods from one State to another. Unless both these conditions were satisfied. there could be no sale in the course of 449 inter state trade. There must be an evidence that the transportation was occasioned by the contract and as a result goods moved out of the bargain between the parties from one State to another. It is apparent from the facts found by the Tribunal that the assessee had since the very beginning been contending that he had effected only local sales. He had also filed an affidavit stating that he had not effected any sales of Tendu leaves during the course of inter state trade and commerce and that the had never applied to the Forest Department for issue of Form T.P. IV and that no such Form was ever issued to him and the Tendu leaves in dispute were not booked by him through railways or trucks for places outside U.P. The Tribunal found nothing to discredit this version of the assessee. The onus lies on the Revenue to disprove the contention of the assessee. The Tribunal found no material to do so. On these facts the Tribunal rejected the contention of the assessee. On these contentions the Revenue went up in appeal before the High Court. The question posed before the High Court was as follows: "Whether on the facts and under the circumstances of the case the Tribunal Sales Tax, Kanpur, was legally justified in knocking off the tax imposed by the assessing authority?" The High Court addressed itself to the question whether the sales effected by the respondent, were inter state sales or not. On an analysis of the findings of the Tribunal, the High Court found that the goods were not moved out of U.P. in pursuance of an agreement for sale entered into between the assessees and their customers. The existence of T.P. Form IV was taken note of but that did not conclude the matter. The condition precedent for imposing sales tax under the , is that the goods must move out of the State in pursuance of some contract entered into between the seller and the purchaser. If that is a correct principle in law, the Tribunal applied this correct principle of law to the facts of this case taking into cognizance the existence of T.P. Form. In view of the facts of this case, the High Court found no material to interfere and dismissed assessee 's contention. We are of the opinion that the High Court was right. In the premises this application for leave must fail and is accordingly dismissed. N.V.K. Petition dismissed.

% The respondent assessee carried on business in Tendu leaves. He contended before the Assessing Authority that there was no inter state sale of Tendu leaves, that the entire sales of Tendu leaves were effected in Uttar Pradesh, and that he did not know if the purchasers had taken these Tendu leaves to places outside Uttar Pradesh, and even if they have so taken the assessee could not be assessed to tax under the , as the contract between him and the purchaser was to purchase goods in U.P. This contention was not accepted and the Assessing Authority assessed the respondent. The Assistant Commissioner (Judicial) having dismissed the appeal against the order of the Assessing Authority, the respondent went in Second Appeal to the Sales Tax Appellate Tribunal. The Tribunal took notice of T.P. Form IV which was a transport permit issued by the Forest department, regarding the validity of Nikasi of Tendu leaves from the forest, and came to the conclusion that merely because T.P. Form had been issued, it does not follow that there were inter state sales. The Tribunal allowed the appeal and quashed the order passed by the assessing authority as well as First Appellate Authority. The Revenue went up in appeal to the High Court, which held that the goods were moved out of U.P. in pursuance of an agreement of sale entered into between the assessee and their customers and that the condition precedent for imposing sales tax under the Central Sales Tax 447 Act was not present and dismissed the appeal. Dismissing the Special Leave Petitions of the Department, this Court, ^ HELD: 1. Sale could be said to be in the course of inter state trade only if two conditions concur, viz. (1) a sale of goods, and (2) transport of those goods from one State to another. Unless both these conditions are satisfied, there could be no sale in the course of interstate trade. There must be evidence that the transportation was occasioned by the contract, and as a result goods moved out of the bargain between the parties from one State to another. [448H; 449A] Bengal Immunity Co. vs State of Bihar, 6 STC 446 referred to 2. The condition precedent for imposing sales tax under the , is that the goods must move out of the State in pursuance of some contract entered into between the seller and the purchaser. [449F G] 3. T.P. Form IV is a transport permit issued by the Forest Department. The Forest Department has given in writing that this permit did not relate to sale but was a certificate regarding the validity of Nikasi of Tendu Leaves from the forest. Merely because T.P. Form has been issued, it does not follow that there were inter state sales. [448F G] 4. The onus lies on the Revenue to disprove the contention of the assessee, that a sale is a local sale and to show that it is an inter state sale. [449C]

ivil Appeal Nos. 231.0 & 1826 of 1968. (From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh High Court in Misc. First Appeals Nos. 219 and 220 of 1965) and Civil Appeal No. 132 of 1969 (From the Judgment and Decree dated the 30th August, 1967 of the Madhya Pradesh. High Court in Misc. First Appeal No. 203 of 1965). G.L. Sanghi, Talat A nsari, R.K. Sanghi and K.J. John. In CAs. 132/69 & 1826/68 for the Appellant in 132 & in 1826/ 68. G.S. Chatterjee & D.P. Mukherjee. for Respondents 1 3. 1. N. Shroff & H.S. Parihar for Respondent No. 8. H.K. Puri and A.G. Ratnaparkhi. for Respondent No. 6 for Respondents 9 to 11. G.S. Chatterjee & D.P. Mukherjee, in CA No. 2310 of 1968 for the appellants. G.S. Sanghi, Talat Ansari, R.K. Sanghi and K.J.John for respondent No. 1. H.S. Parihar & 1. N. Shroff for respondent No. 3. H.K. Puri for respondent No. 4. The Judgment of the Court was delivered by FAZAL ALI, J. With the emergence of an ultra moderd age which has led to strides of progress in all spheres of tile, we have switched from fast to faster vehicular traffic which has come as a has boon to many, though some times in the case of some it has also 946 proved to be a misfortune. Such are the cased of the victims of motor accidents resulting from rash and negligent driving which take away quite a number of precious lives of the people of our Country. At a time when we are on the way to progress and prosperity, our country can iII afford to lose so 'many precious lives every year, for though the percentage of deaths caused by motor accidents in other countries is high, in our own country the same is not by any means negligible, but is a factor to be reckoned with. Our lawmakers being fully conscious of the expanding needs of our nation have passed laws and statutes to minimise motor accidents and to provide for adequate compensation to the families who face serious socio economic problems if the main bread earner loses his life in the motor accident. The time is ripe for serious consideration of creating no fault liability. Having regard to the directive principles of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nationalisation of bus transport, the law of torts based on no fault needs reform. While section 110 of the Motor Vehicles Act provides for the constitution of Claims Tribunals for determining the compensation payable, section 110 A provides for the procedure and circumstances under which the family of a victim of a motor accident can get compensation and lays down the var ious norms, though not as exhaustively as it should have. The Courts, however, have spelt out and enunciated valuable principles from time to time which guide the determination of compensation in a particular situation. Unfortunately, however, section 95(2)(d) of the Motor Vehicles Act limits the compensation to be paid by an Insurance Company to Rs. 2,000/ only in respect of death to any third party and this is one disconcerting aspect on which we shall have to say something in a later part of our judgment. With this little preface we now take up the facts in the appeals by certificate filed by B.L. Gupta and Smt. Manjus hri Raha in this ' Court, and which after being consolidated have been disposed of by one common judgment both by the Claims Tribunal as also by the High Court. Manjushri Raha, the main appellant in Civil Appeal No. 2310 of 1968 will, in short, be referred to hereafter aS "Raha", whereas respond ents Oriental Fire & General Insurance Company would be referred to as "Oriental Company" and the New India Insur ance Company as "New India Company". Manjula Devi Bhuta representing the owner of vehicle No. MPG 4615 will be referred to as "Bhuta", whereas B.L. Gupta the owner of vehicle No. MPG 4307 belonging to the M.P. Speedways Company would be referred to as "Gupta". Padmavati Shastri, the respondent in one of the appeals, would be referred to as "Shastri". The appeals arise in the following circum stances. Claim Case No. 6 of 1962 was filed by Raha along with her two minor children against Bhuta, Sushil Kumar driver of vehicle No. MPG 4615, Oriental Company, New India Company, Gupta owner of the M.P. Speedways Company and Ram Swaroop driver of vehicle No. MPG 4307. The applicant Raha claimed compensation for a 947 sum of Rs. 3,00,000/ against the respondents Under section 110 A of the Motor Vehicles Act. Similarly Shastri filed Claim Case No. 5 of 1962 against the respondents mentioned above claiming Rs. 1,20,000/ as compensation from the aforesaid respondents. Both these claims were consolidated and heard and decided by one common judgment by the Claims Tribunal, Gwalior. The facts giving rise to the claims of Raha and Shastri were that on April 10, 1962 Satyendra Nath Raha the husband of Raha and Uma Shanker Shastri the husband of Shastri were travelling in vehicle No. MPG 4397 (owned by Gupta of the M.P. Speedways Company) from Bhind to TM Gwali or. When the bus travelled a distance of about 26 miles on the Bhind Gwalior road another bus bearing No. MPG 4615 belonging to Bhuta was seen coming from the opposite direc tion. The driver of the M.P. Speedways Company was Ram Swaroop while that of the bus belonging to Bhuta was Sushil Kumar. When the two buses were approaching in opposite directions, both the drivers being negligent and having failed to take the necessary precautions of keeping to their left led to a head on collision of the two buses as a conse quence of which the two persons, namely, Satyendra Nath Raha and Uma Shanker Shastri sustained fatal injuries to which they succumbed on the 'same day in the Gohad Hospital. The facts and circumstances under which the accident took place have not been disputed by counsel for the parties, nor have the essential findings of fact given by the Claims Tribunal and the High Court been challenged before us. The appeal, therefore, lies within a very narrow compass. But before dealing with the appeals, it may be necessary to indicate the reliefs granted by the Claims Tribunal to the parties concerned. The Claims Tribunal decreed the claim of Raha to the extent of Rs. 60,000/ only against all the respondents holding that the drivers of both the buses were negligent. The claim of Shastri was decreed only to the extent of Rs. 40,000/ against Bhuta, Sushil Kumar driver and Oriental Company. No decree was passed against Ram Swaroop driver of the M.P. Speedways Company and New India Company because there was no allegation of negligence against these persons in the claim flied by Shastri. Against the decision the Claims Tribunal, Gupta field Miscellaneous First Appeal No. 203 of 1965 against Bhuta, Raha and others which was dismissed by the High Court. Civil Appeals Nos. 1826 of 1968 and 132 of 1969 in this Court arise out of the aforesaid appeal before the High Court. Miscellaneous First Appeal No. 219 of 1965 was filed by Bhuta against Raha, Gupta and others which was also dismissed by the High Court, but Bhuta has not filed any appeal to this Court against the decision of the Tribunal and the High Court in that appeal. But Bhuta had flied an appeal in the High Court being Miscellaneous First Appeal No. 220 of 1965 against Shastri which was allowed by the High Court to this extent that the decree against Gupta and Ram Swaroop was made joint and several along with the appel lant Bhuta. Miscellaneous First Appeal No. 222 of 1965 was flied before the High Court by Oriental Company against Shastri but that was also dismissed. Similarly Miscellane ous First. Appeal No. 223 of 1965 was flied before the High Court by Oriental Company against Raha which was also dis missed along with the cross objection 948 which was filed by Raha for enhancement of the compensation. The High Court, however, held in Miscellaneous First Appeal No. 223 of 1965 that Oriental Company was to pay a total compensation of Rs. 20,000/ out of which Rs. 8,000/ was to be paid to Shastri and Rs. 12,000/ to Raha. The present appeals in this Court have been filed by Gupta and Raha. Neither Shastri, nor Bhuta, nor any of the Insurance Companies have filed any appeal before this Court. The short point raised by Mr. Sanghi appearing for Gupta was that in the circumstances the compensation awarded by the Claims Tribunal to Raha was too high and at any rate the High Court ought not to have made the appellant Gupta liable jointly and severally with others. In the appeal filed by Raha it is claimed that the compensation granted by the Claims Tribunal was grossly inadequate and should be enhanced. It has been stated before us by Mr. Sanghi, though not admitted by the other side, that Gupta and the Insurance Companies have paid a total amount of Rs. 29,000/ (Rs. 15,000/ by Gupta and Rs. 14,000 by insurance Companies) in full and final settlement of the claim of Raha and, there fore, the appeal should be decreed in terms of the compro mise. It was further contended that even if the amount awarded by the Claims Tribunal to Raha is enhanced that should be payable by Bhuta alone and not by the appellant Gupta, who has settled the claim with the appellant Raha. There can be no doubt that if really a settlement has been reached between Gupta and Raha then no further decree can be passed as against Gupta. The appellant further undertook to pay Rs. 10,000/ to Shastri in fulfilment of her claim. As Rs. 10,000/ has already been paid to Shastri with the result that Bhuta has yet to pay Rs. 20,000/ being her share to Shastri. Finally, it was contended that as there was no allega tion of negligence against Ram Swaroop the driver of the M.P. Speedways Company the High Court ought not to have decreed the c1aim of Raha against the appellant Gupta. We have perused the plaint before the Claims Tribunal, which is rather loosely drafted, but it clearly contains the relief of compensation even against Gupta and Ram Swaroop driver. The High Court has pointed out that even though there is no clear plea of negligence in the claim of Raha, the facts alleged and proved in the case dearly show that Ram Swaroop the driver of the M.P. Speedways Company was both rash and negligent. Pleadings have to be interpreted not with forma listie rigour but with latitude or awareness of low legal literacy of poor people. We fully agree with the finding of the High Court and see no reason to disturb it. We also agree with the order of the High Court by which it makes Gupta and Bhuta jointly and severally liable. That was the only decree which could have been passed in the circum stances. Coming now to the 'appeal filed by Raha, counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is grossly inadequate and certain important factors have not been taken into consideration. On a perus al of the judgment of the Claims Tribunal it would appear that the only basis on which the compensation has been awarded is the total salary which the deceased Satyen 949 dra Nath Raha would have got upto the age of 55 years which has been taken at Rs. 1,20,000/ and after deducting half which would normally have been spent, the actual income lost to the family was Rs. 60,000/ . It seems to us, however, that in making the calculation, the Claims Tribunal and the High Court overlooked two important and vital considera tions. In the first place, while the admitted position was that the deceased Satyendra Nath Raha was working in the grade of Rs 590 30 830 35 900 and was getting a salary of Rs. 620/ p.m. at the time of his death, the Courts below have not taken into account the salary which he would have earned while reaching the maximum of his grade long before his retirement. It is admitted that the deceased Satyendra Nath Raha was 37 years of age at the time of the accident and at this rate he would have reached the maximum of the grade of Rs. 900/ at the age of 46 years i.e. full 9 years before his superannuation. The claimant has produced a certificate Ext. P 4 from the office of the Accountant General, Madhya Pradesh, Gwalior, which shows that from April 11, 1962 (i.e. the date next to the date of the death of Satyendra Nath Raha) to October 15, 1980 which would be the last working day of the deceased Raha, the deceased Raha would have drawn Rs, 1,89,402 including the increments earned and the maximum grade drawn. This figure may be rounded off to Rs. 1,88,000/ . Even if half of this be deducted as being rightly taken to have been spent by the deceased to cover day to day domestic expenses, payment of incometax and other charges, the actual income lost to the family including the value of the estate and the loss to. the dependents would be Rs. 94,000/ . This will be a fair estimate which does not take into account the economic value of the deprivation to the wife of her husband 's company for ever and the shock felt by the children. It was suggested by the High Court that as the deceased Raha was not a perma nent employee, the amount taken into account by the Compen sation Tribunal was correct. This is, however, not a con sideration which could have weighed with the Claims Tribunal in making the assessment because it was purely contingent. On the other hand with the rise in price index it could well have been expected that there would be several revisions in the grade by the time the deceased Raha had attained the age of superannuation, which, if taken into account, would further enhance the amount. In these circumstances, there fore, we think that the amount of Rs. 90,000/ would represent the correct compensation so far as the salary part of the deceased Raha is concerned. The Courts below have also not considered the effect of the. pensionary benefits which the deceased Raha would undoubtedly have got after retirement, and in fact the Claims Tribunal has restricted the span of the life of the deceased only to the age of 55 years i.e. the age of super annuation, whereas in the present economic conditions the life of an average Indian has increased more than two fold. It is, therefore, reasonable to expect that if the deceased had not died due to accident, he would have lived up at least upto the age of 65 years, if not more, so as to earn the pensionary benefits for 10 years after retirement. According to the certificate Ext. P 4 the deceased Raha would have been entitled to a monthly pension of Rs. 337 50 which 950 would mean about Rs. 4,050/ per year. There can be no doubt that whole of this amount would have to be spent, there being no other source of income and, therefore, this amount cannot be said to be lost to the estate. The certif icate Ext. P 4 further shows that the deceased Raha would have got death cum retirement gratuity to the extent of Rs. 13,500/ calculated on the basis of the presumptive aver age emoluments and presumptive last emoluments. If the deceased had lived after superannuation, he might probably have got this amount. After adding this amount of Rs. 13,500/ to. Rs. 90,000 the total amount would come to Rs. 1,03,500/ which may be rounded off to roughly Rs. 1,00,000/ . In any view of the matter, therefore, the appellant Raha was entitled to a compensation of Rs. 1,00,000/ , and the Courts below erred in completely over looking these two important aspects which we have dis cussed. It appears that the appellants Raha as also Padmavati Shastri could have got heavier compensation from the Insur ance Companies, but unfortunately the Motor Vehicles Act has taken a very narrow view by limiting the liability of the Insurance Companies under section 95 (2) (d) to Rs. 2,000/ only in case of a third party. While our Legislature has made laws to cover every possi ble situation, yet it is well nigh impossible to make provi sions for all kinds of situations. Nevertheless where the social need of the hour requires that precious human lives lost in motor accidents leaving a trail of economic disas ter in the shape of their unprovided for families. call for special attention of the law makers to meet this social need by providing for heavy and adequate compensation par ticularly through Insurance Companies. It is true that while our law makers are the best judges of the requirements of the society, yet it is indeed surprising that such an important aspect of the matter has missed their attention. Our country can ill afford the loss of a precious life when we are building a progressive society and if any person engaged in industry, office, business or any other occupa tion dies, a void is created which is bound to result in a serious set back to the industry or occupation concerned. Apart from that the death of a worker creates a serious economic problem for the family which he leaves behind. In these circumstances it is only just and fair that the Legis lature should make a suitable provision so as to pay ade quate compensation by properly evaluating the. previous life of a citizen in its true perspective rather than deval uing human lives on the basis of an artificial mathematical formula. It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a com pensation of Rs. 1,00,000/. or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2,000/ . Does it indicate that the life of a passenger travelling by plane becomes more, precious merely because he has chosen a par ticular conveyance and the value of his life is considerably reduced if happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet section 95(2)(d) of the Motor Vehicles Act seems to. suggest such a distinction. We hope and trust that our law makers will give. serious attention to this aspect of the matter and remove this serious lacuna in section 95(2)(d) of the Motor 951 Vehicles Act. We would also like to. suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a Court in the special circumstances of each case. We further hope our suggestions will be duly implemented and the observa tions of the highest Court of the country do not become a mere pious wish. In M/s. Sheikhupura Transport Co. Ltd. vs Northern India Transporters Insurance Co. Ltd. (1) this Court has clearly held that an Insurance Company is not liable to pay any sum exceeding Rs. 2,000/upto a maximum of Rs. 20,000/ on the plain words of section 95 (2) (d) of the Motor Vehicles Act and the only remedy to provide for adequate compensation for a precious life of a human life is for the Legislature to take a practical view of the loss of human life in motor acci dents. In P.B. Kader & Ors. vs Thatcharoma and Ors.(2) a Division Bench of the Kerala High Court, while dwelling on this aspect observed as follows: "It is sad that an Indian life should be so devalued by an Indian law as to. cost only Rs. 2,000/ , apart from the fact that the value of the Indian rupee has been eroded and Indian life has become dearer since the time the statute was enacted, and the consciousness of the comforts and amenities of life in the Indian community has arisen, it would have been quite appropriate to revise this fossil figure of Rs. 2,000/ per individual, in volved in an accident, to make it more realis tic and humane, but that is a matter for the legislature; and the observation that I have made is calculated to remind the lawmakers that humanism is the basis of law and justice. " We find ourselves in complete agreement with the obser vations made by the Kerala High Court in the aforesaid case and we would like to remind the law makers that the time has come to take a more humane and practical view of things while passing statute like the Motor Vehicles Act in regu lating compensation payable by Insurance Companies to vic tims of motor accidents. We have not the slightest doubt that if the attention of the Government is drawn, the lacuna will be covered up in good time. The result is that Civil Appeals Nos. 1826 of 1968 and 132 of 1969 are dismissed and Civil Appeal No. 2310 of 1968 is allowed to this extent that the claim preferred by Raha is enhanced from Rs. 60,000/ to Rs. 1,00,000/ . As no authentic proof of any settlement between Gupta and Raha has been produced before us, the decree passed by us will be jointly and severally recoverable from Gupta and Bhuta after giving credit for the amounts received by Raha. It will, however, be open to the executing court on proof of any full and final settlement of the claims of Raha with Gupta or any other Judgment debtor to adjust the claims accordingly under 0.23 r. 3 of the Code of Civil Procedure. In the circum stances of the case, the parties will bear their own costs in this Court. P.H.P. C.A. 1826 of 1968 and 132 of 1969 dismissed. C.A. No. 2310 of 1968 allowed. (1) ; (2) A.I.R. 1970 Kerala 241.

Gurdev Singh had certain complaints about the Consolida tion Scheme. He was not present when his application was being considered. Therefore, the application was dis missed by the Additional Director, Consolidation. Thereaf ter, Gurdev Singh respondent No. 3 filed an application for restoration supported by an affidavit attributing his ab sence to his illness. The Additional Director accepted the ground of respondent No. 3 about illness and granted necessary relief to him. The appellant filed a writ.peti tion in the High Court under Articles 226 and 227 of the Constitution. The High Court held that the assertion of rights by the appellant merely because of some report con tained in the "Fard Badar" could not take away the effect of the entries in the revenue records The High Court also held that no injustice was caused to the appellant and, there fore, there was no ground for interference under Article 226. In an appeal by Special Leave, the appellant contended that the Additional Director had no power to review his previous order. The power to review conferred by section 42 of the Act has to be exercised only after hearing the interested parties. Since respondent No. 3 was not given an opportunity of being heard on account of his illness, it shows that the order passed was non est and can be ignored at any stage. The court dismissed the appeal on the ground that this was not a fit case for interference under Article 136. the Court, however, observed that if the appellant has any right on account of long possession or otherwise he can assert them by adopting proper proceedings and that his rights would not be affected by whatever is stated m the Judgment of this Court as well as the High Court.

Criminal Appeal No. 264 of 1971 (Appeal by Special Leave from the Judgment and Order dated 19/20th August, 1971 of the Bombay High Court in Cr.A. No. 650 of 1970 with Crl. Rev. No. 886/70). B.R. Agarwala and P.B. Agarwal, for the appellant. H.R. Khanna and M.N. Shroff, for the respondent. The Judgment of the Court was delivered by BHAGWATI, J. The appellant was tried before the Presi dency Magistrate, 25th Court, Mazgaon, Bombay for offence under clauses (a) and (b) of section 135 read with section 135(ii) of the and Rule 126H(2)(d) read with Rule 126P(2)(iv) of the Gold Control Rules 1963. The prosecution case against the appellant was that on 7th September, 1965 about 3.45 p.m. Inspector Tilwe, who was at the material time Senior Grade Inspector of Customs attached to Gold Circle, Central Excise, Bombay, received information that two persons would be coming down from a building known as Hira Mahal, situated at Kalbadevi Road, and they will be carrying gold in the handle, of a cane basket and also in their shoes 17 1104SC1176 520 Inspector Tilwe, on receipt of this information, sent for Inspector Nichani and both of them kept guard outside Hira Mahal building from about 8.00 p.m. Around 8.45 p.m., the appellant accompanied by his material uncle 's son Dwarkapra sad, his son Dalip aged 9 years and his servant by the name of Mahadev, came out of Hira Mahal building. The appellant was carrying a basket in his hand and after coming out of the building, the appellant and his companions got into a Victoria and proceeded towards Victoria Terminus Station. Inspector Tilwe and Inspector Nichani followed these persons and when the appellant and his companions got down from the Victoria and entered the platform, Inspector Tilwe accosted them and took them to the office of the Assistant Station Master and searched them there in the presence of three panchas. Two of the panchas were selected by Inspector Tilwe while the third volunteered to act as Pancha. On taking search, it was found that the shoes worn by the appellant and Dwarkaprasad had specially made cavities and four gold biscuits with foreign markings were found in the shoes of each of these two persons. The basket carried by the appellant also contained 27 gold biscuits with foreign markings concealed in the handle which was made of brass and which had a specially made cavity in it for concealing gold biscuits. While the search was going on, one Ticket Collec tor called Tharandas Bhatia arrived on the scene and he also witnessed the search. Inspector Tilwe seized the gold biscuits which were recovered from the appeIIant and Dwar kaprasad, in the reasonable belief that they were smuggled and hence liable to confiscation under section 111 of the . This search and seizure was recorded in a Panchanama exhibit X, which was witnessed by the three pan chas. Inspector Tilwe also seized from the appellant two first class Railway Tickets for the journey from Bombay to Kanpur, one Reservation Card and two Platform Tickets and so also were the basket and the shoes seized under the same Panchanama exhibit X. Inspector Tilwe then took the appellant and Dwarkaprasad to the Central Excise Office and recorded their statements in the presence of Inspector Nichani under section 107 of the . The statement of the appellant which is marked exhibit W was written by Dwarkaprasad in Hindi and was signed by the appellant. The appellant admitted in his statement that he was carrying smuggled gold concealed in the handle of the basket and shoes for being handed over to a firm called M/s Pannalal Durgaprasad at Kanpur and that he had been doing this work for the last six months ever since his business as a goldsmith was closed down. Another statement of the appellant was also subsequently recorded by Inspector Tilwe on 22nd November, 1966 at the shop of the appellant and this statement was written by one MaganIal, an employee of the appellant, in Gujarati and was signed by the appellant. Both the appel lant and Dwarkaprasad were thereafter prosecuted for of fences under clauses (1) and (b) of section 135 read with section 135(ii) of the , and Rule 126H(2)(d) read with Rule 126P(2)(iv) of the Gold Control Rules, 1963. Dwarkaprasad pleaded guilty to the charge and was convicted and we are not concerned in this appeal with the conviction and sentence recorded against him. The appel 521 lant denied the charge and hence he was tried before the leraned Presidency Magistrate. The only evidence led on behalf of the prosecution against the appellant was that of Inspector Tilwe and Tharandas Bhatia. None of the panchas was examined as a witness to prove the search and seizure. The learned Presidency Magistrate observed that in view of the fact that Tharandas Bhatia had not signed the Panchanama exhibit X nor his statement had been recorded by the Customs Authorities or the Railway Police, and his name had also not been shown as a witness in the complaint, it would not be desirable to rely on his evidence against the appellant. But the learned Presidency Magistrate found the evidence of Inspector Tilwe satisfactory and convincing and on the strength of this evidence, he held the charge proved against the appellant and convicted. the appellant of the offence under clause (b) of section 135 read with section 135(ii) of the and Rule 126H(2)(d) read with Rule 126P(2) (iv) of the Gold Control Rules, 1963 and sentenced him to suffer rigorous imprisonment for two months and to pay a fine of Rs. 500/ or in default to suffer rigorous imprisonment for two months for each of these two offences. Since there was no evidence to show that the appellant himself had smuggled the seized gold into India, he was acquitted of the charge under clause (a) of section 135 read with section 135(ii) of the . The appellant preferred an appeal against his convic tion and sentence but the High Court agreed with the view taken by the learned Presidency Magistrate and dismissed the appeal of the appellant. Hence the present appeal with special leave obtained from this Court. It is true that the conviction of the appellant rests solely on the evidence of Inspector Tilwe. There were three pan chas who witnessed the Panchanama exhibit X regarding search and seizure of gold from the appellant but unfortunately none of the three panchas could be examined, as they were not trace able in spite of efforts made by the prosecution. Two of the panchas undoubtedly remained present in the course of the adjudication proceedings but that was in December 1967. The trial before the learned Presidency Magistrate commenced in April 1969 and evidence was given by Inspector Tilwe in December 1969 and at that time none of the three panchas could be traced and brought for the purpose of giving evi dence. The statement of Inspector Tilwe that "all the three panchas are now not traceable in spite of great efforts" was not challenged in cross examination and we must, there fore, proceed on the basis that none of the three panchas was available and if that be so, no adverse inference can be drawn against the prosecution for not examining any of the three panchas. Tharandas Bhatia was no doubt examined but the learned Presidency Magistrate preferred not to rely on his evidence and we think, he was right in doing so. In spector Nichani could, of course, have been examined as a witness, since he was present at the time of search and seizure, but his non examination cannot help the appellant, since he was also an Inspector in. the Customs Department like Inspector Tilwe and once Inspector Tilwe gave evidence, it would not have added to the weight of prosecution evi dence by also examin 522 ing him. The prosecution case against the appellant must, therefore, in the ultimate analysis stand or fall by the evidence of Inspector Tilwe. The learned Presidency Magistrate as well as the High Court accepted the evidence of Inspector Tilwe and we do not see any reason to interfere with the concurrent view taken by both these courts as regards the appreciation of his evidence. It was not the case of the appellant that he and Dwarkaprasad along with Dalip and Mahadev did not proceed from Hira Mahal building to Victoria Terminus or that they were not taken by Inspec tor Tilwe to the office of the Assistant Station Master for purpose of search or that gold was not found as a result of the search, but his defence was that the seized gold was found from Dwarkaprasad and not from him and that both the basket and the shoes belonged to Dwarkaprasad and he had nothing to do with the same. Now, it is difficult to see why Inspector Tilwe should have falsely implicated the appellant if, in fact, the seized gold was found only from the person of Dwarkaprasad and the appellant was completely innocent. It may also be noticed that the case of the appellant was that Mahadev was the servant of Dwarkaprasad and it was Dwarkaprasad who was going from Bombay to Kanpur along with his servant Mahadev and the two Railway Tickets from Bombay to Kanpur were meant for Dwarkaprasad. But it is difficult to understand why in that event there should have been two first class Railway Tickets. Mahadev could not possibly be travelling by first class along with his master. The fact that there were two first class Railway Tickets shows that the appellant and Dwarkaprasad were going to travel from Bombay to Kanpur. This is also. borne out from the statement exhibit H given by the appellant to Inspector Tilwe. The appellant tried to wriggle out of the statement exhibit H by showing that it was taken from him under threat and was not a voluntary statement containing the true facts. But it is evident from the contents of the statement exhibit H that it is a genuine document. There are several details in the statement exhibit H which could never have been dictated by Inspector Tilwe. There is inherent evidence in the contents of the statement exhibit H showing that the statement is true. It was admitted in the statement exhibit H, that the appellant was carrying gold from Bombay to M/s Pannalal Durgaprasad at Kanpur and this statement is clearly support ed by the seizure of two First Class Railway Tickets from Bombay to Kanpur. It is true that the reservation card seized at the time of search did not show in whose name the reservations were made and it would have been better, if the prosecution had summoned the railway authorities to produce the Reservation Chart of the train for the purpose of show ing in whose name the reservations were made. But even so, the fact that the reservation card was seized from the appellant shows that the appellant was travelling from Bombay to Kanpur. We do not see any cogent reasons for taking a different view from that taken concurrently by the learned Presidency Magistrate and the High Court in regard to the evidence of Inspector Tilwe and we think this evi dence is sufficient to found the conviction of the appel lant. The appellant, however, contended that even if it be held that gold was found from the person of the appellant, as alleged by the 523 prosecution, it was smuggled gold and hence not covered by the Gold Control Rules, 1963 and, in the circumstances, no offence under Rule 126H(2)(d) read with Rule 126P(2)(iv) could be said to have been committed by the appellant in acquiring such gold. The argument of the appellant was that the Gold Control Rules, 1963 apply only in relation to what may be called legal gold or non smuggled gold and smuggled gold is outside their scope and ambit and hence acquisition of smuggled gold would not constitute an offence under the Gold Control Rules, 1963. This is an argument of despair and cannot be sustained even for a moment. Rule 126H(2)(d) provides, inter alia, that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may make in this behalf. The word 'gold ' is defined in clause (c) of the Explanation to Rule 126A to mean gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form, of a purity of not less than nine carats and include any gold coin (whether legal tender or not), any ornament and any other article of gold". This definition does not restrict the meaning of the word 'gold ' to legal or non smuggled gold. It is wide enough to include any kind of gold, whether smuggled or non smuggled. The restrictions imposed by the Gold Control Rules, 1963 could not have been intended merely to apply to legal gold. The object and purpose of the restrictions. would be frustrated by exclud ing from their ambit and coverage smuggled gold. The Gold Control Rules, 1963 seek to control and regulate dealings in gold and 'gold ' within the meaning of these rules must include not only non smuggled gold but also smuggled gold, We fail to see on what principle of construction can smug gled gold. which is 'gold ' within the meaning of the defini tion, be excluded from the operation of these Rules. There is no scope for inferring any such exclusion nor is there anything in the Rules which supports such exclusion. Take, for example, Rule 126 B which says that a dealer shall not make or manufacture any article of gold other than ornament. Can it be suggested for a moment that this Rule does not prohibit a dealer from making or manufacturing articles out of smuggled gold? Then again, look at Rule 126 C. It provides, inter alia, that no dealer shall make, manufacture or prepare any ornament having gold of a purity exceeding fourteen carats. Can a dealer make an ornament of smuggled gold having purity exceeding fourteen carats without commit ting a breach of this Rule? Rule 126 1 provides that every person shall make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him. How can a person, who has smuggled gold, say that he is not bound to make a declaration under this Rule? The object of requiring a declaration is that the Government should know what is the gold possessed by each person, so that dealings in gold can be controlled and regulated and this object would be thwarted if smuggled were not subject to the requirement of declaration. Then consid er Rule 126 D which says that no person shall make advance or grant any loan to any other person on the hypothecation, pledge, mortgage or charge of any gold other than ornament, unless such gold 524 has been included in a declaration. If smuggled gold were outside the scope of this rule, it would be open to a person to advance moneys on the security of smuggled gold without involving any violation of this rule. That surely could not have been the intention of the Government in making the Gold Control Rules, 1963. We are aware that there is a decision of the Calcutta High Court in Aravinda Mohan Sinha vs Proh lad Chand Samenta(1) where a Division Bench has taken the view that "declaration under Rule 126. P is in respect of legal gold as opposed to smuggled gold and no question of declaration in respect of smuggled gold can arise under Gold Control Rules, 1963," but we do not think this decision represents the correct law on the point. We are of the view that the Gold Control Rules 1963 are applicable alike to smuggled gold as to non smuggled gold, and the inhibition of Rule 126H(2) (d) that no person other than a licensed dealer shall acquire gold except in accordance with a permit or authorisation granted by the Administrator is not con fined in its operation to non smuggled gold but applies equally in relation to smuggled gold. The learned Presiden cy Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2)(d) read with Rule 126 P(2) (iv) of the Gold Control Rules, 1963. Since the appellant is convicted of the offence under Rule 126P (2) (iv) of the Gold Control Rules, 1963, the sentence of imprisonment to be imposed on him cannot be less than .six months and the High Court was right in enhancing the sentence to six months imprisonment. But so far as the sentence of fine is concerned, we do not think that the facts and circumstances of the case justify a heavy fine of Rs. 3,000/ for each of the two offences for which the appellant is convicted. It appears from the statement of the appellant exhibit H that he was a carrier of gold for M/s Pannalal Durgaprasad of Kanpur and the purchase price of Gold was provided substantially by this Kanpur firm and the appellant was merely to receive some commission. The appel lant was a goldsmith who had lost his business for the last six months and perhaps economic necessity drove him to carry on this nefarious activity. The sentence of imprisonment which has been imposed on the appellant would be sufficient deterrent to him and many others who indulge in this anti social activity which is calculated to disrupt the economy of the country. We feel that in the circumstances, the ends of justice would be met if the sentence of fine is reduced from Rs. 3,000/ to Rs. 500/ for each of the two offences. We accordingly confirm the conviction of the appellant as also the sentence of imprisonment imposed on him but reduce the sentence of fine from Rs. 3,000/ to Rs. 500/ for each of the two offences for which the appellant is convicted with a direction that in default of payment of fine, the appellant will suffer rigorous imprisonment for a period of two months. The appeal is allowed to this limited extent. M.R. Appeal partly allowed.

The appellant was found carrying smuggled gold with foreign markings, concealed on his person. He was convicted by the Presidency Magistrate under Section 135(b) read with Section 135(ii) of the , and Rule 126H (2)(d) read with Rule. 126 P(2)(iv) of the. Gold Control Rules, 1965. The High Court upheld the convictions. The appellant con tended that the gold, allegedly recovered from him was smug gled gold, and hence not covered by the Gold Control Rules, 1963. Dismissing the appeal the Court. HELD: The Gold Control Rules, 1963, seek to control and regulate dealings in gold, and are applicable alike to smuggled gold as to non smuggled gold, and the inhibition of Rule 126 H(2)(d) that no person other than a licensed dealer shall acquire gold except in accordancee with a permit or authorisation granted by the Administrator, is not confined in its operation to nonsmuggled gold but applies equally in relation to smuggled gold. The object and pur pose of the restrictions imposed by the Gold Control Rules, 1963, would be frustrated by excluding from their abmit and coverage, smuggled gold. [523 A D; 524 B C] Aravinda Mohan Sinha vs Prohlad Chand Samenta AIR 1970 Cal 437 over ruled.

ivil Appeal No. 809 of 1966. Appeal by special leave from the judgment and order dated February 13, 1965 of the Assam and Nagaland High Court in Civil Rule No. 127 of 1963. Niren De, Solicitor General, A.N. Kirpal, S.P. Netyar for R.N. Sachthey for the appellants. M.C. Setalvad and D.N. Mukherjee, for the respondent. D.M. Sen, Advocate General for the State of Nagaland, A.R. Barthakur and R. Gopalakrishnan, for the intervener. The Judgment of the Court was delivered by Hegde, J. The only question that arises for decision in this appeal is whether the exclusion of the government servants from the exemption given under section 4(3)(xxi) of the Indian Income Tax Act, 1922 and later on under section 10(26) of the Income Tax Act, 1961 is violative of article 14 of the Constitution. For our present purpose it may be taken that the said two provisions are similar. The respondent who is a government servant serving in the State of Assam has been assessed to income tax for the assessment years 1959 60, 1960 61, 1961 62 and 1962 63. He challenged the legality of his assessments in civil rule No. 127 of 1963 on the file of the High Court of Judicature of Assam. The Assam High Court accepted his petition and quashed the assessments in question holding that section 4(3)(xxi) of the Indian Income tax Act. 1922 as well as section 10(26) of the Income Tax Act, 1961 to the extent they excluded government servants from the benefit of the exemption given thereunder are void. The income tax authorities as well as the Union of India have come up to this Court in appeal by special leave. The facts of this case lie within a narrow compass. The respondent belongs to Mikir Scheduled Tribe and is a permanent inhabitant of United Khasi Jaintia Hills District, an autonomous, District included in Part 'A ' of the Table appended to Paragraph 167 20 of the Sixth Schedule of the Constitution of India. He is a government servant. All these are admitted facts. The respondent in his petition before the High Court averred (in para. 7 of the petition) that "in all the autonomous districts under Table, Part A of paragraph 26 of the Sixth Schedule of the Constitution of India, there are a large number of persons belonging to Scheduled Tribe who derive considerable income from trade, commerce and business and other sources and employments and immovable properties". In the return filed by the appellants those allegations were not denied. Adverting to those allegations this is what was stated in the affidavit filed by Shri S.K. Dutta, Income tax Officer (the first appellant in the appeal): "With reference to the statements made in paragraph 7 of the petition I say that the petitioner being a government servant his case stands on a different footing other than the general public of the Scheduled Tribe. " It may be remembered till 15 8 47, Khasi and Jaintia Hills were not parts of British India. They were under native States. They merged with British India only after this country got independence. Till their merger, none of the Indian laws applied to those areas. The Finance Act of 1955 incorporated into the Indian Income Tax Act,1922, s.4(3) (xxi). The relevant portion of section 4(3) reads thus: 4(3). "Any income profits, or gains falling within the following classes shall not be included in the total income of the person receiving them." (xxi). "Any income of a member of a Scheduled Tribe, as defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part`A or Part B of the table appended to paragraph 20 of the Sixth Schedule to the Constitution, provided that such member is not in the service of Government." Sec. 10(26) of the income tax Act of 1961 which corresponds to section 4(3)(xxi) of the Indian Income Tax Act, 1922, reads thus : "In the case of a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area 'specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government. any income which accrues or arises to him, (a) from any source in the area or Union Territories aforesaid, or (b) by way of dividend or interest on securities. " 168 Part of the impugned assessments were made under the Indian Income Tax Act, 1922 and the rest, under the Income Tax Act, 1961. If the aforementioned provisions are valid, then the assessments in question are beyond challenge. Therefore the only question for decision is whether the legislature had no power to exclude the government servants from the benefit of the exemptions given under the aforementioned ss.4(3) (xxi) and 10(26). It is seen that the income of the members of a scheduled tribe included in cl. 25 of article 366 of the Constitution and residing in my area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution, excepting 1hat of government servants is exempt from income tax. in other words, the government servant alone is excluded from the, benefit of the exemption given under the provisions quoted above. It is agreed that the respondent is a member of the scheduled tribe included in cl. 25 of article 366 of the Constitution, residing in an area specified in Part A of the Table appended to para. 20 of the Sixth Schedule to the Constitution, but yet he had been denied the benefit of the exemption in question on the sole ground that he is in the service of the government. It may be noted that exemption both under section 4(3)(xxi) of the Indian Income Tax Act, 1922 and under s.10(26) of the Income Tax Act, 1961 was given to the members of certain scheduled tribes. For the purpose of the exemption in question the classification was made on the basis of persons being members of a particular tribe. That being so, some of the members of that tribe cannot be excluded from the benefit of those provisions unless they can be considered as belonging to a well defined class for the purpose of income tax. The respondent 's contention which has been accepted by the High Court is that the government servants cannot be considered as a separate class for the purpose of income tax. On the other hand it is contended on behalf of the Department that the classification made is a reasonable one, taking into consideration administrative convenience as well as the past legislative practice and history. It is not in dispute that taxation laws must also pass the test of article 14. That has been laid down by this Court in Moopil Nair vs State of Kerala(1). But as observed by this Court in East India Tobacco Co. vs State of Andhra Pradesh(2), in deciding whether a taxation law is discriminatory or not it is necessary to bear in mind that the State has a wide discretion in selecting persons or objects it will tax, and that a statute is not open to attack on the ground that it taxes some persons or objects and not others; it is only when within the range of its selection, the law operates un (1) ; (2) ; , 409. 169 equally, and that cannot be justified on the basis of any valid classification, that it would be violative of article 14. It is well settled that a State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably. The complaint in this case is that within the range of the selection made by the State for the purpose of exemption, namely, members of certain scheduled tribes residing in specified areas, the law operates unequally and the inequality in question cannot be justified on the. basis of any valid classification. There can be no distinction between the income earned by government servant and that earned by a person serving in a company or under a private individual. More or less similar is the case in respect of the income earned by persons practising one or more of the professions. Admittedly the income earned by the members of the scheduled tribes residing in Khasi Jaintia Hills. excepting in the case of government servants is exempt from income tax be it as salaried officers, lawyers, doctors or persons other walks of life. Is there any legal basis for this differentiation ? Prima facie it appears that the government servants have been discriminated against and the discrimination in question is writ large on the face of the provisions in question. The learned Solicitor General contended that the classification in question can be justified on administrative grounds. He urged that a classification based on administrative convenience is a just classification in the matter of levying taxes. According to him it is easy to collect taxes from government servants. Therefore, it was permissible for the legislature to deny them the exemption extended to the other members of their tribes. This contention appears to be without merit. It may be that for the purpose of taxation a classification can be made on the basis of administrative convenience. But we fail to see how the case of the government servants stands on a footing different from that of the employees in statutory corporations or even well recognised firms. That apart, administrative convenience which can afford just basis for classification must be a real and substantial one. We see no such administrative convenience. The learned Solicitor General, next contended that 'the classification can be justified on the basis of past legislative practice and history. In this connection he invited our attention to the fact that before this country got independence, the income of the persons in the service of the government 'but serving outside British India such as in Baluchistan, or native States was subject to tax under the Indian Income Tax laws though other persons residing in those places were not subject to the income tax laws in force in British India. The L10 Sup C1/67 12 170 reason for the same is that the Indian legislature had No. legislative competence to tax the residents of those areas, but it had competence to tax the income of the persons in government service though they might be serving outside British India. The learned Solicitor General next invited our attention to a notification issued by the Government of India as long back as 6 6 1890, under which the income earned by members of certain scheduled tribes other than those serving under the government was exempted from income tax. He also invited our attention to Finance department Notification No. 788F dated 21 3 1922 under which the income of indigenous hill men other than persons in the service of government, residing in certain areas were exempt from tax. On the basis of those notifications, he wanted us to spell out a well recognised legislative practice and history under which the government servants as a class were excluded from the benefit of income tax exemption extended to other persons similarly situated. In this connection, he placed reliance on the decision of this Court in Narottam Kishore Dev Varma and Ors. vs Union of India and another(1). Therein this Court was called upon to consider the validity of section 87B of the Code of Civil Procedure which prescribed that a Ruler of a former Indian State cannot be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to the Government. The validity of that provision was challenged on the basis of article 14. This Court upheld the. validity of that provision having regard to the legislative and historical background of that provision, but at the same time observed that considered in the light of basic principles of equality before law, it would be odd to allow the section to continue prospectively for all time to come. After setting out the legislative background of that provision, this Court observed: "The legislative background to which we have referred cannot be divorced from the historical background which is to be found for instance, in article 362. This Article provides that in the exercise of the power of Parliament or of any legislature of any State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (1) of article 291 with respect to the personal rights, privileges and dignities of a Ruler of an Indian State. This has reference to the covenants and agreements which had been entered into between the Central Government and the Indian Princes before all the Indian States were politi (1) ; 171 cally completely assimilated with the rest of India. The privilege conferred on the Rulers of former Indian States has its origin in these agreements and covenants. One of the privileges is that of extra territoriality and exemption from civil jurisdiction except with the sanction of the Central Government. It was thought that the privilege which was claimed by foreign Rulers and Rulers of Indian States prior to the independence of the country should be continued even after independence was attained and the States had become part of India, and that is how in 1951, the Civil Procedure Code was amended and present sections 86, 87, 87A and 87B came to be enacted in the present form. " In the background set out above this Court upheld the validity of section 87B of the Code of Civil Procedure. We know of no legislative practice. or history treating the government servants as a separate class for the purpose of income tax. The government servants ' income has all along been treated in the same manner as the income of other salaried officers. We not know under what circumstances the notifications dated 5 6 1890 and 21 3 1922, referred to. earlier, came to be issue& But they are insufficient to prove a well established legislative practice. At the time those notifications were issued the power of the legislature to grant or withhold any exemption from tax was not subject to any constitutional limitation. Hence the validity of the impugned provisions cannot be tested from what our legislatures or governments did or omitted to do before the Constitution came into force. If that should be considered as a true test then article 13(1) would become otiose and most, if not all, of our constitutional guarantees would lose their content. Sri Setalvad learned counsel for the respondent is justified in his comment that classification based on past legislative practice and history does not mean that because in the past the legislature was enacting arbitrary laws it could do so now. It was the contention of the learned Solicitor General that exemption from income tax was given to members of certain scheduled tribes due to their economic and social backwardness; it is not possible to consider a government servant as socially and economically backward and hence the exemption was justly denied to him. According to the Solicitor General, once a tribal becomes a government servant he is lifted out of his social environment and assimilated into the forward sections of the society and therefore he needs No. more any crutch to lean on. This argument appears to us to be wholly irrelevant. The exemption in question was not given to individuals either on the basis of their social status or economic resources. It was given to a class. Hence 172 individuals as individuals do not come into. the picture. We fail to see in what manner the social status and economic resources of a government servant can be different from that of another holding a similar position in a corporation or that of a successful medical practitioner. lawyer, architect, etc. To over paint the picture of a government servant as the embodiment of all power and prestige would sound ironical Today his position in the society to. put it at the highest is no higher than, that of others who in other walks of life have the same income. For the. purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction, having regard to the purpose of the law. It was lastly contended by the learned Solicitor General a contention which was not taken either in the return or before the High Court or in the appeal memo. that it is not possible to strike down only a portion of section 4(3)(xxi) of the Indian Income Tax Act. 1922 and section 10(26) of the Income Tax Act, 1961, namely, the words "provided that such member is not in the service of government" found in section 4(3)(xxi) of the Indian Income Tax Act, 1922 and the words "who. is not in, the1 service of government" in section 10(26) of the Income Tax Act, 1961, as those words are not severable from the rest of the provisions in which they appear. Further; according to him it cannot be definitely predicated that the legislature would have granted the exemption incorporated in those provisions without the exception made in the ' case of government. servants. Therefore if we hold that those provisions as they stand are violative of ' article 14 then we must strike down the aforementioned sections 4(3)(xxi) and 10(26) in their entirety. We are unable to accept the contention that the words mentioned above are not severable, from the rest of the provision in which they appear. They are easily severable. Taking into consideration the reasons which persuaded the legislature to grant the exemption in question we have no doubt that it would have granted that exemption even if it was aware of the fact that it was beyond its competence to exclude the government servants from the exemption in question. For the reasons mentioned above this appeal is dismissed with costs. V.P.S. Appeal dismissed.

The predecessors in interest of the respondent executed usufrutory mortgage deeds in 1898 in favour of the predecessors in interest of the appellants in respect of certain 'sir ' land. In 1940 one of the mortgagors, R, the husband of respondent, was declared insolvent and his share in the proprietary rights which vested in the Insolvency Court was purchased by the mortgagee. Some disputes arose about the amount and the right of redemption under the mortgage between the mortgagee and the other mortgagor S, the matter was referred to arbitration. In pursuance of the decree in this award, the mortgagee purchased the share of 'S ' including his rights in 'sir '. R died, and when his widow the Respondent was dispossessed from the land in pursuance of the mortgage decree passed in terms of the award, she filed an application to the Revenue Court under section 12 and section 13 of the Central Provinces Tenancy Act for restoration of possession of her occupancy rights in the land, which was allowed. Thereupon the appellants filed the suit claiming possession, which was partly allowed. Both the parties appealed and in appeals the suit was dismissed, which in further appeals, was upheld by the High Court. HELD : The appellants were not entitled to claim possession in this suit. The mere mention of the 'sir ' land as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the 'sir ' land were subject of the mortgages, so the cultivator rights continued to remain with the mortgagors. The circumstance was further borne out by the fact that even after execution of the usufructuary mortgages in 1895, the mortgagors continued to cultivate this land and actual possession over this land for the purposes of cultivating it was not obtained by the mortgagee. In the circumstances, it was clear that the mortgagors must have become ex proprietary occupancy tenants of this land in the year 1895. [273 G. H] Even if the mortgagors become ordinary tenants in 1895, it was clear that by the time the Act came into force in the year 1920, they must have become occupancy tenants as defined in section 10 of the Act. So the claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages in 1895, in these circumstances, must fail. [274 D] The appellants ' claim that the rights of S passed to them when they purchased his rights in execution of the decree under the award and that the share of R passed to them when his rights were transferred by the insolvency Court, fails in view of the provisions of section 12 or section 49 of the 271 Act, as they then stood. As a result of these provisions, the rights of the ex proprietory occupancy tenant could not have been transferred in favour of the mortgagees. Section 50, as it was at that time, did permit transfer of certain rights of an ex proprietory occupancy tenant; but, to be valid such transfers required permission of the appropriate revenue authority. In this case, there is no suggestion that, when transfers were obtained by the mortgagees in pursuance of the decree in the award and in pursuance of the insolvency proceedings against R, the transfers purported to. be affected were made with the permission of the appropriate authority. Consequently under section 49 those transfers would be void. [274 H 275 C] Section 12 barred the transfer of cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings. In fact, such rights did not vest in the Insolvency Court at all under the Provincial Insolvency Act. Consequently, the mortgagees could not acquire title to cultivatory right by virtue of the proceedings, taken in execution of the decree in civil suit or in the insolvency proceedings. The right continued to vest in the mortgagors and the Respondent, who was entitled as the 'sole survivor to those rights, was rightly restored to possession by the revenue authorities. [275 E G] The challenge, to the decision of the revenue authorities on the ground that its jurisdiction to grant relief under section 13 of the Act is confined to cases where one of the covenants claims possession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed, was immaterial, because relief from the same revenue authority could be claimed by a sole tenant by an application under section 100 of the Act. The application filed by the respondent could, therefore, be treated as an application under section 100 of the Act in case she was the sole tenant, and the grant of relief to her was not without jurisdiction. [275 H]

il Appeal No. 1655 of 1968. Appeal by special leave from the judgment and order dated December 20, 1967 of the Mysore High Court in Regular Second Appeal No. 811 of 1965. A. K. Sen, Shyamala Pappu and Vineet Kumar, for the appellant. S.V. Gupte, Janendra Lal, B.R. Agarwala and Kumar M. Mehta, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Mysore High Court in which the question involved is whether an option given to a lessee to get the lease,, which is initially for a period of 10 years, renewed after every 10 years is hit by the rule of perpetuity and is void. The respondent entered into a deed of lease on October 26, 1951 with the appellant in respect of premises Nos. 8 & 9, Mahatma Gandhi Road, (South Parade), Civil Station, Bangalore. It was stipulated that the lease would be for a period of 10 years in the first instance with effect from November 1, 1961 "with ,an option to the lessee to renew the same as long as desired as provided". Clauses 9 and 10 which are material may be reproduced: "9. The lessee shall have the right to renew the lease of the scheduled premises at the end of the present period of ten years herein secured on the same rental of Rs. 450/ per month, for a similar period and for further similar periods thereafter on the same terms and conditions as are set forth herein; and the Lessee shall be permitted and shall have the right to remain in occupation of the premises on the same terms and conditions for any further periods of ten years as long as they desire to do so. The Lessor shall not raise any objection whatsoever to the Lessee exercising his option to renew the lease for any further periods of ten years on the same terms and conditions as long as they desire to be in 142 occupation, provided that the Lessee shah not have the right to transfer the lease or alienate any right thereunder. ' ' It appears that before the expiry of the period of ten years from the date of the commencement of the lease the lessee wrote to the lessor informing him of the intention to exercise the option given to the lessee under the deed of lease to get the same renewed on the same terms and conditions as before for a period of ten years from November 1, 1961. The lessor did not comply with the request. After serving a notice the lessee filed a suit for specific performance of the covenant in the lease for renewal. It was prayed that the lessor be directed to execute a registered deed to lease in favour of the lessee and if he failed to do so the court should execute a deed in his favour. The lessor pleaded, inter alia, that the condition relating to renewal was hit the rule against perpetuity. Certain other pleas were taken with which we are not concerned. The trial court decreed the suit. The first appellate court and the High Court affirmed the decree. The rule against perpetuity is embodied in section 14 of the Transfer of Property Act, hereinafter called the Act. According to it no transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer and the minority of some person who shall be in existence at the expiration of that period and to whom, if he attains full age, the interest created is to belong. It is well known that the rule against perpetuity is rounded on the principle that the liberty of alienation "shall not be exercised to its own destruction and that all contrivances shall be void which tend to create a perpetuity or place property for ever out of the reach of the exercise of the power of alienation". The words "transfer of property" have been defined by section 5 of the Act to mean an act by which a living person conveys property in present or in future to one or more other living persons etc. The words "living persons" include a Company or association or body of individuals. Section 105 of the Act defines "lease". A lease of immovable property is a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value. A lease is not a mere contract but it is a transfer of an interest in land and creates a right in rem. Owing to the provisions of section 105 a lease in perpetuity can be created but even then an interest still remains in the lessor which is called a reversion. It is not disputed on behalf of the appellant that a lease in perpetuity could have been created but the lease in the present case 143 was not of that kind and was for a period of ten years only in the first instance. It is said that the mischief is created by the clauses relating to renewal which are covenants that run with the land. It is pointed out that on a correct construction of the renewal clauses the rule of perpetuity contained in section 14 would be immediately attracted. We are unable to agree. Section 14 is applicable only where there is transfer of property. Even if creation of a lease hold interest is a transfer of a right in property and would fall within the expression "transfer of property" the transfer was for a period of ten years only by means of the indenture Exh. The stipulation relating to the renewal could not be regarded as transferring property or any rights therein. In Ganesh Sonar vs Purnendu Narayan Singha & Ors.(1) in the case of lease of land an option had been given to the lessor determine the lease and take possession of the lease hold land under specified conditions. The question was whether such a covenant would fall within the rule laid down in the English case Woodall vs Clifton(2) in which it was held that a proviso in a lease giving an option to the lessor to purchase the fee simple of the land at a certain rate was invalid as infringing the rule against perpetuity. The Patna High Court distinguished the English decision quite rightly on the ground that after the counting into force of the Act a contract for the sale of immovable property did not itself create an interest in such property as was the case under the English law. According to the Patna decision the option given by the lessee to the lessor to resume the lease hold land was merely a personal covenant and was not a covenant which created an interest in land and so. the rule against perpetuity contained in section 14 of the Act was not applicable. The same principle would govern the present case. The clauses containing the option to get the lease renewed on the expiry of each term of ten years can by no means be regarded as creating an interest in property of the nature that would fall within the ambit of section 14. Even under the English law the court would give effect to a covenant for perpetual renewal so long as the invention is clear and it will not be open to objection on the ground of perpetuity; see Halsbury 's Laws of England, 3rd Edn. 23, p 627. In Muller vs Traf Jword(3) it was held that the covenant in a lease for renewal was not strictly a covenant for renewal. But Farwell, J., proceeded to observe that a covenant to renew had been held for at. least two centuries to be a covenant running with the land. If so, then no question of perpetuity would arise. It appears that in England whatever might have been the reason, the objection of perpetuity had never been taken to cases (1) (1962) Patna 201. (2) (3)(1901) 1 Ch. 54. of covenants for renewal. The following observations of Farwell, J., which were quoted with approval by Lord Evershed, M.R. in Weg Motors Ltd. vs Hales & Others(1) are note worthy: "But now I will assume that this is a covenant for renewal running with the land; it is then in my opinion free from any taint of perpetuity because it is annexed to the land. See Rogers vs Hosegood, The equitable rule that the burden of a covenant runs with the land is to be found in section 40 of the Act. This section reads: 40. "Where for the more beneficial enjoyment of his own immoveable property, a third person, has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands." As pointed out in Mulla 's Transfer of Property Act, 5th Edn. at page 194, section 40 expressly says that the right of the covenantee not an interest in the land bound by the covenant nor an easement. It is not an interest because the Act does not recognise equitable estates and it cannot be said as Sir George Jessal said in London & South Western Rly. vs Gomm(2) that if a covenant "binds the land it creates an equitable interest in the land. " The expression "covenant runs with the land" has been taken from the English law of real property. It is an exception to the general rule that all covenants are personal. Even on the footing that the clauses relating to renewal in the lease, in the present case, contain covenants running with the land the rule against perpetuity contained in section 14 of the Act would not be applicable as no interest in property has been created of the nature contemplated by that provision. For the above reasons the appeal fails and it is dismissed with costs. G.C. Appeal dismissed. (1) ,188. (2) , 580.

A large number of parts of machinery bearing railway marks, contained in bags of metal scrap booked for transport by lorry by the appellant, was seized by the Railway police and the appellant was charged with an offence under section 3 of the Railway Stores (Unlawful Possession) Act, 1955. The expert on railway machinery parts certified that the goods were unactionable, suggesting that they could not have been auctioned and lawfully purchased by any third party, but in court, he gave evidence and made a categorical statement that he could not say if the articles were auctioned in the market or not. The appellant was convicted and the conviction was confirmed by the High Court. In appeal to this Court, HELD: Before anyone can be charged with the offence under section 3, the prosecution must show that the articles in his possession are 'railway stores ' as defined in section 2, that is: (i) that the articles are the property of a railway administration (though it is not necessary to prove that they belong to any particular railway administration); and (ii) that they are used or intended to be used in the construction, operation or maintenance of a railway. The prosecution must also show that there was cause for reasonable suspicion of the stores having been stolen or unlawfully obtained. Evidence that the goods conformed to the railway standards, or that they were new, fails short of the requisite proof, because, an article, though it is the property of a railway administration would not be "railway stores ' if the article has been discarded or rejected as useless. Since the evidence in this case did not establish that the goods were used or intended to be used in the construction, operation or maintenance of a railway the charge must fail. [188 D F, E H; 189 F H] Moyalal Rostagir vs State, , approved. Observations contra in Udaya Dalai vs State, 30 Cuttack L.T. 275, disapproved.

Appeal No. 330 of 1960. Appeal from the judgment and decree dated March 18, 1954, of the Calcutta High Court in Appeal from Original, Decree No. 80 of 1947. section T. Desai and B. P. Maheshwari, for the appellants. B. Sen, N. R. Ghosh, Salil K. Datt and P. K. Ghosh, for the respondents Nos. 1 and 2. January 13, 1964. The Judgment of the Court was delivered by AYYANGAR J. This is an appeal preferred, by virtue of a certificate of fitness granted by the Calcutta High Court, against its judgment, by which the decree passed by the Subordinate Judge of Darjeeling was substantially affirmed. The plaintiffs are the appellants before this Court. The suit out of which the appeal arises was brought by the appellants claiming title to and the recovery of possession of a property known as the Azambad Tea Estate which comprised about 378 acres of land in Touzi No. 911 of the Darjeeling Collectors. This property was set out in Schedule A to the plaint and besides a claim was also made to certain other items of the movable and certain other tenures, but this appeal is not concerned with these others which were set out. in Schs. B and C to the plaint. 195 One Kazi Azam Ali was admittedly a full owner of this entire property and the proceedings giving rise to the appeal are concerned with the rights of his heirs to it. The plain tiffs claim their title on the basis of various purchases from the heirs of this Azam Ali. The contesting defendants were the Azamabad Tea Co. who also claim the entire property as transferees from the National Agency Co. Ltd., who too have been impleaded as defendants. The National Agency Co. Ltd. claim to have purchased the entire 16 as. interest in the property at a Court sale in pursuance of a decree obtained by them against Kazi Mohammed Ismail, the eldest son of Azam Ali. Various contentions were raised by the plaintiffs in challenge of the validity of the transactions by which the defendants claimed their title. But the learned Subordinate Judge repelled the plaintiffs ' claim and held that the purchase by the National Agency Co. Ltd. was valid and extended to the entire interest in the property and that in consequence the plaintiffs ' vendors had no title to convey to them any interest in the property. The plaintiffs ' claim of the property in respect of Sch. A was therefore dismissed. The plaintiffs preferred an appeal to the High Court and the learned Judges upheld the title of the plaintiffs to an 8 pies share in the property mentioned in Sch. A to the plaint but confirmed the decree of the Subordinate Judge as regards the rest. The learned Judges however granted a certificate of fitness to the plaintiffs on the strength of which the present appeal has been filed. The history of the transactions before the suit occupies a period of over 20 years and the facts in relation thereto are at once long, voluminous and complicated. But, for the disposal of the appeal and the points urged before us it is wholly unnecessary to set these out and we shall therefore confine ourselves to a narration of the bare outlines of the case along with those facts which are necessary to appreciate the contentions raised in support of the appeal. The property covered by the Tea Estate was granted by Government by way of lease to one Mudir and another for 30 years, the term to start on the 1st of April 1898. The grantees effected transfers of their lease hold and after several successive transfers the property was purchased in 196 1913 by one Kazi Azam Ali who got his name registered as a proprietor. It was Azam Ali who started the tea garden. constructed the requisite factories as accessories thereto and named it the Azamabad Tea Estate. Azam Ali had several children and among them 8 daughters and in consideration of gifts made to them, these daughters by a registered deed executed in 1909 relinquished their rights of succession to Azam Ali. They thus faded away from the picture and no more notice need be taken of them. Besides these 8 daughters, Azam Ali had 8 sons who survived him and were among his heirs, when he died on June 8, 1917. Mohammed Ismail was the eldest of these sons. Azam Ali also left behind him a daughter who was born after ' the relinquishment of 1909 and three widows. Admittedly the sons of Azam Ali, his widows and his last daughters were all his heirs entitled to his estate in the shares as prescribed by Muslim Law. On Azam Ali 's death his eldest son Ismail had his name entered in the Government records as the next in succession and at the time the thirty years term of the lease expired, the lease continued to remain in the name of Ismail alone. We now proceed to the transactions as a result of which the contesting defendants claim to have obtained the full title to the Tea Estate. Ismail made large borrowings and among them were some from the National Agency Co. Ltd. and for securing the loan he deposited with them the title deeds of the Tea Estate. It may be mentioned that the deposit was on the footing that he was the full owner of the 16 as. share of the property mortgaged. The amount due under the mortgage was not paid in time and the mortgagee filed a suit for the enforcement of its mortgage and prayed for the sale of the property for the realisation of the mortgage money. The suit was decreed as prayed for and the property was sold in execution of the final decree and was purchased by the mortgage decree holder on September 24, 1931. The sale was confirmed on November 13, 1931. This decree holder purchaser sold the property to the Azamabad Tea Estate the principal respondent before is. There was some little controversy as regards the reality and effectiveness of the transfer of the property from the National Agency Co. Ltd. to the Azamabad Tea Estate, 197 but nothing turns on this, for even if that transfer was not effective that would not help the plaintiffs so long as they could not displace the title of the National Agency Co. Ltd. under the latter 's court auction purchase. The case of the plaintiffs rested on the fact that Ismail who got himself registered as if he were a full proprietor of the lease hold interest in Touzi 911 was merely one of several co sharers of Azam Ali 's estate to whom it passed on his death. The lease hold which was his property was according to them inherited by all his heirs including Ismail, the seven other sons, the three widows and the daughter born after 1909. The term of the lease granted by the Government expired in 1928 and a renewed lease was granted in the name of Ismail alone. Rival contentions were urged as regards the effect of this circumstance on the right of Ismail. It was the case of the contesting respondents that the lease granted in 1928 in favour of Ismail was his sole and individual pro perty and even if for any reason the other heirs of Azam Ali had an interest in the previous lease hold, they did not have any such interest in the property covered by the fresh lease. On the other hand, the case of the plaintiffs was that by the renewal of the lease, Ismail obtained qua his co heirs the same interest as he formerly had in the lease of 1898. The renewal, they stated, was for the benefit not merely of Ismail but for everyone of his co heirs who still retained his or her interest in Azam Ali 's estate. On this basis the plaintiffs raised the contentions that when by the sale in execution of the mortgage decree obtained by the National Agency Co. they purchased the property mortgaged, it was only the interest of Ismail that passed to them and not those of his co sharers who were no parties to the mortgage, There is one further transaction to which we must advert before passing on to the next stage of the proceedings. After the mortgage by deposit of title deeds in favour of the National Agency Co., Ismail transferred his entire interest in the mortgaged property, that is, in the equity of redemption, to his wife Mst. Nazifannessa, by a deed dated May 6, 1930. Notwithstanding this deed and this transfer of the equity of redemption Mst. Nazifannessa was not made a party to the 198 mortgage suit by the National Agency Co. The plaintiffs who claim to have acquired Mst. Nazifannessa 's interest contended that by reason of the failure to implead Nazifannessa in the mortgage action, her right to redeem the mortgage was still in tact in spite of the mortgage decree and the sale in pursuance thereof, and on this footing made a claim in the alternative to redeem the mortgage in favour of the National Agency Co. and obtain possession after re demption. To complete the narrative of the relevant facts, very soon after the purchase in Court auction in execution of the mortgage decree, the heirs of Azam Ali brought a suit (58 of 1931) to set aside the decree and the sale in favour of the National Agency Co. Ltd. on various grounds collusion, fraud, the circumstance that Ismail was merely a co sharer entitled to about 2 1/2 as. share in the property and so could not mortgage more than that share, and that the decree could not bind a larger interest nor the sale convey anything more than that share, even if it conveyed any title to the property. This suit however did not proceed to trial, but was dismissed for default, in that the plaintiffs did not appear in Court on the date fixed for trial. The only other matter to be mentioned is that the plaintiffs have, by their purchases, acquired from the several co heirs, directly or mediately, the entire 16 as. share in the property assuming that their vendors had any such right. Armed with these purchases the plaintiffs filed this suit for the reliefs already indicated. The defences raised to the suit were three fold: (1) That Ismail was the sole proprietor of the Tea Estate at the date of the mortgage and consequently the entire interest was the subject of mortgage and so passed at the court sale. This was based on the provisions of the Crown Grants Act, now the Government Grants Act. It would be recollected that the thirty years lease of Touza 911 was renewed in 1928 and this renewal was made in the name of Ismail alone. Based on this feature a contention was raised that the grant of the lease created a new title in the grantee since the original lease in 199 which alone the heirs of Azam Ali might have had a share was extinguished by the termination of that lease by efflux of time. (2) The second line of defence was that Ismail, even if in fact or law was not the full owner, was an ostensible owner of the entire interest in the property and that the co heirs were estopped from questioning the validity of the mortgage of the entire interest effected by him under section 41 of the Transfer of Property Act and that in conse quence the sale in execution passed the entire 16 as. share to the purchaser. (3) Lastly, it was urged that the plaintiffs ' suit was liable to be dismissed by reason of the provisions of 0. IX, r. 9 of the Civil Procedure Code as the earlier Original Suit 58 of 1931 brought by the co heirs to set aside the sale under the mortgage decree had been allowed to be dismissed for default. The learned Judges of the High Court rejected the first two of the defences but held that except to the extent of an eight pies share which represented the interest of a co heir which was not affected by the proceeding in Suit 58 of 1931, the plaintiffs were precluded by 0. r. 9, Civil Procedure Code from disputing the sale in execution of mortgage decree by reason of the dismissal for default of Suit 5 8 of 1931. Before proceeding to set out the arguments addressed to us by Mr. Desai, learned counsel for the appellants, it might be convenient to dispose of the submissions made to us by Mr. Sen, learned counsel for the respondents, seeking to ,sustain the first two defences which were repelled by the High Court. The first of them was that by reason of the renewal of the lease in 1928 in the name of Ismail and the entry of his name as sole lessee in the revenue records, the leasehold became his sole property. Apart from the arguments about Ismail being the ostensible owner of the entire 16 as. share in the lease hold under the lease of 1898 which we shall consider a little later Mr. Sen did not dispute that 200 Ismail 's co heirs were entitled to their fractional shares in the property under the original lease. The acceptability of this argument regarding the renewed lease has to be determined on the basis of two factors first the intention of the parties, and here primarily of the grantor, as to the nature and quantum of the title intended to be conferred on or obtained by Ismail and, second, the provisions of the Crown, Grants Act which governed the grant on which reliance was placed as leading to that result. First, as to the intention of the parties. The original lease of 1898 was due to expireon March 31, 1928. On July 20, 1928 Mohd. Ismail made a petition to the Deputy Commissioner, Darjeeling by which after drawing the latter 's attention to the date on which the lease was to expire, he "respectfully solicited the favour of ' kindly granting a further lease of the said Estate for a further period of 30 years. " The Deputy Commissioner replied by letter dated August 10, 1928 sending Ismail the draft of the renewed lease for his approval and return adding "in the record of rights the following names have been recorded: 1. Kazi Mohammed Ismail 2 as.; 2. Kazi Isahaque 2 as.; 3. Kazi Yakub 2 as.; 4. Kazi Samoddoha 2 as.; 5. Kazi Nurul Huda 2 as.; 6. Kazi Badarudduza 2 as.; 7. Kazi Insaf Ali 2 as.; 8. Kazi Asfaque 2 as. ; Please mention the name in whose favour the lease will have to be issued." Ismail returned the draft lease with his approval but desired that the lease should be issued according to the name in the land register. We are unable to read this request as meaning that Ismail, contradicting what the Government said, wanted that the leasehold interest should be his sole property in which his co heirs who had interest in the earlier lease were to be denied all beneficial interest. It was thereafter that the lease was executed on February 1, 1929 in the name of Ismail to be operative from April 1, 1928 and was in terms in renewal of the previous 201 lease. In the circumstance, we are satisfied that the Gov ernment intended to grant a lease in favour of his co sharers as well, though the lease deed was in the name of Ismail alone. If Ismail intended to benefit himself at the expense of his co sharers and as we have said, we do not read his reply to the Deputy Commissioner as disclosing such an intention, the same was not made known to the Government. We are therefore unable to accept Mr. Sen 's submission based on the intention of the parties. He, however, submitted that whatever be the intention of the parties, by reason of section 3 of the Crown Grants Act Ismail 's title to the full 16 as. share in the leasehold could not be disputed. This section reads: "3. All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to (their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding. " If, as we have held. it was the intention of the Government in granting the renewal that the co heirs too should have the benefit of the lease we do not see how these provisions affect their beneficial interest in the lease. Nor are thereany clauses in the lease which preclude the existence of abeneficial interest in persons other than the lessee named. This point is therefore without substance and is rejected. The next point urged was based on section 41 of the Transfer of Property Act. It was said that Ismail was by reason of the entry in the revenue registers, which the co heirs did nothing to correct, ostensibly the full owner of the property and hence the mortgage by him as full owner and the sale in court auction in execution of the decree by the National Agency Co. Ltd. passed the full title to the Tea Estate and that the co heirs were consequently estopped from disputing the defendant 's right to the full 16 as. share in the property. In order that section 41 of the Transfer of Property Act could be attracted, the respondents should prove that Ismail was the ostensible owner of the property with the consent of his co sharers and besides that they took reason able care 202 to ascertain whether Ismail had the power to make a transfer of the full 16 as. interest. Now, the facts however were that except the property being entered in the revenue records in Ismail 's name, and that the management of the property was left by the co sharers with Ismail, there is not an iota of evidence to establish that Ismail was put forward by them as the ostensible owner of the property. It is manifest that the conduct of co sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights. The learned Judges have also pointed out that even the least enquiry by the mortgagee would have disclosed that Ismail was not the full owner and this finding was not seriously challenged before us. In this view it is unnecessary for us to consider the submissions made to us by Mr. Desai that section 41 was inapplicable to cases of sales in court auctions for the reason that what the court is capable of selling and what is sold in execution of a decree is only the right, title and interest of the judgment debtor and nothing more. We, therefore, hold that the learned Judges of the High Court rightly held that section 41 of the Transfer of Property Act afforded no defence to the respondents. The next and the only point remaining for consideration is whether the appellants ' suit is barred under the provisions of 0. r. 9, Civil Procedure Code. The part of this provision material for our purpose runs: "Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. " The learned Judges of the High Court have held that this provision barred the plaintiffs ' claim in the present suit except to the extent of an 8 pies share in the estate which belonged to Azifunnessa and Najifennessa, two of the daughters of Azam Ali, who on the death of their mother became entitled to that share. These two were not the parties to suit No. 58 of 1931 and hence the learned fudges held that their share (which was purchased 'by the plaintiffs) was unaffected by the dismissal of that suit. 203 The decision of the High Court in regard to this 8 pies share has become final and thus is outside controversy. The ,only question is whether the plaintiffs appellants are entitled to anything beyond this share. The suit, 58 of 1931, was instituted by 7 plaintiffs Ashfaq, Shamsuzzoha, Nurul Huda, Mohd. Yakub, these four being the sons of Azam Ali, two of his daughters Mahbuba Khatun and Habiba Khatun and one of his widows Bibi Marium. There were two defendants the National Agency Co. Ltd. the purchaser in court sale of the property under the mortgage decree, whose title was challenged and against whom reliefs were claimed and Mohd. Ismail who was a pro forma defendant. Ashfaq, The first plaintiff, died after the institution of the suit and certain of the parties already on record were recorded as his legal representatives. The allegations in the plaint briefly were that the 2nd defendant Mohd. Ismail was not tile sole proprietor or owner of the Azamabad Tea Estate and that for that reason, the mortgage in favour of the 1st defendant, the mortgage decree obtained by it and the sale thereunder passed to it no title except to the extent of 2 1/2 as. share belonging to Mohd. Ismail. The plaintiffs therefore prayed for a decree declaring (1) that Mohd. Ismail had only 2 1/2 as. share in the property and the remaining 132 1/2 as. share belonged to the plaintiffs; (2) that only 2 1/2 as. share was sold under the mortgage decree and purchased by the National Agency Co. Ltd. at the court sale. The suit was instituted on 28th November, 1931 and after the issues were settled, the suit was posted for trial on 22nd August, 1932, on which date the plaintiffs were absent, no witnesses on their behalf were present, and their pleader reported no instructions. The suit was therefore directed to be dismissed with costs in favour of the National Agency Co. Ltd. who was the only party present in Court. It may be mentioned that Mohd. Ismail never appeared during the hearing of the suit. 204 Before taking up for consideration certain points urged before us by Mr. Desai regarding the construction of 0. IX r. 9 C.P.C. we might dispose of a contention raised by him that Suit No. 58 of 1931 was filed fraudulently and collusively and the dismissal was the result of a settlement brought about collusively in order to defeat the plaintiffs ' rights. We consider that there is no factual basis to sustain, this plea for he could point to no definite proof in support, and the most he could do was to refer us to certain suspicious circumstances. We cannot obviously base any decision or rest any finding, on mere suspicion and we have no hesitation in saying that the submission does not deserve serious consideration. The next submission was that even the 212 as. share of Ismail did not pass under the sale in execution of the mortgage decree, because it was said Ismail had been, adjudicated an insolvent in Insolvency Case 38 of 1931 by the Dist. Judge Purnia, as a result of which the properties which were the subject of the court sale had vested in the official receiver before the relevant date. Though, no doubt, an allegation regarding this matter was made in the plaint and this was denied by the plaintiffs there is nothing in the judgments of the courts below or in the, evidence to indicate that the necessary facts were proved or that this point was urged with any seriousness at any stage of the proceedings until in this Court. We have therefore nothing beyond the bare allegations and denials and as the full facts in relation to this matter were not placed before the Court we hold that this plea is devoid of merits and does not merit consideration. It was next said that two of the plaintiffs in suit No. 58 of 1931, Nurul Huda and Habiba Khatun, a son and a daughter of Azam Ali were really adults but were shown in the cause title as minors represented by their respective natural guardians as their next friends and that as these adults could not in law be represented by persons purporting to act as their guardians they could not be held to be parties to the suit and hence their interests could not be affected by the dismissal of the suit. This also is one of the matters in respect of which the plaintiffs beyond a mere pleading which was denied, made no grievance in the courts 205 below and the facts in relation to this issue, namely, the age ,,of the two plaintiffs at the date of the plaint not having been clearly proved, we do not find it possible to entertain the plea at this stage. Mr. Desai, then submitted that Ashfaq who had figured as the first plaintiff in suit No. 58 of 1931 had already on April 18, 1931 transferred his 2 as. 13 gandas and odd share in Touzi No. 911 to one Pir Baksh from whom the plaintiff obtained a conveyance by a deed dated September 2, 1943 of what he had purchased from Ashfaq. For this reason he urged that on the findings on the merits of the title in favour of the plaintiffs on the first two defenses we have dealt with earlier the plaintiffs should have been granted .a decree to this share of Ashfaq in addition to the 8 pies share decreed to them by the High Court. No doubt, if this transaction were made out and was real, it would stand on the same footing as the 8 pies share in regard to which a decree was granted in favour of the plaintiffs by the judgment now under appeal. We shall however consider this matter after dealing with the point urged as regards the construction of 0. r. 9, Civil Procedure Code, which was his main submission and which, if upheld, would entirely eliminate the bar under this provision of law. On this the first submission was that the rule which spoke of the "plaintiff" being precluded from bringing a fresh suit created merely a personal bar against the plaintiff in the first suit and that in the absence of words referring to the representatives of the plaintiff or those claiming under the plaintiff as in section 11 or section 47 of the Civil Procedure Code, the bar was not attracted to cases where the subsequent suit was by the heirs and assigns of that plaintiff. In support of this submission Mr. Desai invited our attention to the observations of Das J. in Gopi Ram vs Jagannath Singh(1) where this argument was characterised as a weighty one and examined elaborately. Though the learned Judge decided this matter on quite a different line of reasoning, he referred to various earlier decisions which appeared to him to favour the view submitted to us by Mr. Desai and expressed his hesitation in (1) L.L.R. 9 Pat. 447 at P. 454. 206 rejecting that construction. We are not however impressed by the argument that the ban imposed by 0. r. 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. Beyond the absence in 0. r. 9 of the words referring "to those claiming under the plaintiff" there is nothing to warrant this argument. It has neither principle, nor logic to commend it. It is not easy to comprehend how A who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property could effect a transfer of his rights to that property and confer on the transferee a right which he was precluded by law from asserting. There are, no doubt, situations where a person could confer more rights on a transferee than what he possessed but those are clearly defined exceptions which would not include the case now on hand. This argument was addressed to the High Court and the learned Judges characterised it as startling, a view which we share. The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward. Aga in to say that an heir of the plaintiff is in a better position than himself and that the bar lapses on a plaintiff 's death, does not appeal to us as capable of being justified by any principle or line of reasoning. In our opinion, the word "plaintiff ' in the rule should obviously, in order that the bar may be effective, include his assigns and legal representatives. It was next urged that 0. r. 9 precluded a second suit in respect of "the same cause of action" and that the cause of action on which Suit 58 of 1931 was laid and the present suit Title suit 18 of 1943 was not the same and so, the bar was not attracted. In view of this argument it is necessary to examine them cause of action on which the present suit has been filed and compare and contrast with that in Suit 58 of 1931. Closely analysed the material allegations to found the cause of action on which reliefs were claimed in the present suit 207 were (i) That the Tea Estate was originally the property of Azam Ali. When he died his estate was inherited by his 8 sons, his widows and a daughter. That the registration of the estate in the name of Md. Ismail was as a co sharer, the property belonging beneficially to all the heirs. This position was not altered by the termination of the first lease and its renewal in 1928 for a further period of 30 years. All the co heirs lived as a joint family with a common mess and hence there was no question of any adverse possession by Md. Ismail whose possession was not as sole proprietor or exclusive. The suit on the mortgage was fraudulent and collusive, by Ismail colluding with the mortgagee to defraud his co heirs. Details were mentioned as evidence of the fraud and collusion. The sale in pur suance of the decree which was passed ex parte was also fraudulent. On the date of the auction Ismail had no title even to the 2 1/2 as. share because of his adjudication as an insolvent earlier. The manner in which the 8 pies share of the daughters was obtained by the plaintiff was set out, and similarly the purchase by them through Pir Baksh of the share of Ashfaq. The other purchases by the plaintiffs whereby they claimed to have obtained the 16 as. share in the Tea Estate were set out. The plaint then went on to refer to suit 58 of 1931 and set out their case as regards the nature of that litigation and its effect. Lastly, they pleaded that they had obtained possession of the Tea gardens on October 10, 1934 and that on the next day the defendants moved the Magistrate for an order under section 144, Criminal Procedure Code and that the Magistrate had made an order against the plaintiffs restraining them from interfering with the possession of the defendants which necessitated their bringing the suit for the reliefs we have set out earlier. We have already summarised the material allegations which were made in Suit 58 of 1931. The material difference between the cause of action alleged in the present suit consists only in the addition of the allegations about the possession and dispossession in October, 1934. This suit is based on the title of the plaintiffs by reason of their purchases and admittedly their vendors would have nothing to convey if the court sale conveyed, as it purported to 208 convey, the full 16 as. interest in the Tea garden to the National Agency Co. Ltd. It was because of this that allegations were made to sustain their title and this could be done only if they established want of title to the extent of 16 as share in Ismail, the consequent ineffectiveness of the mortgage effected by Ismail and of the decree obtained in pursuance thereof and of the court sale in execution of that decree, being confined at the most to 2 1/2 as. share belonging to Ismail. These allegations which were fund amental to the plaintiffs ' case were identical with those which had been made in suit No. 58 of 1931. Bearing these features in mind, the proposition that Mr. Desai submitted for our acceptance was briefly this. A cause of action is a bundle of facts on the basis of which relief is claimed. If in addition to the facts alleged in the first suit, further facts are alleged and relief sought ,on their basis also, and he explained the additional facts to be the allegations about possession and dispossession in October, 1934, then the position in law was that the entire complexion of the suit is changed with the result that the words of 0. r. 9 "in respect of the same cause of action" are not satisfied and the plaintiff is entitled to reagitate the entire cause of action in the second suit. In support of this submission, learned counsel invited our attention to certain observation in a few decisions to which we do not consider it necessary to refer as we do not see any substance in the argument. We consider that the test adopted by the Judicial Committee for determining the identity of the cause of action in the two suits in Mohammed Khalil Khan and Ors. Mahbub Ali Mian and Ors. (1) is sound and expressescorrectly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O. 11 r. 2 of the Civil Procedure Code, observed: "In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test (1)75 1. A. 121. 209 to be applied is: are the causes of action in the two suits in substance not technically identical?" The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorijamonee Dasee vs Suddanund(1) and extracted the following passage as laying down the approach to the question : "Their Lordships are of opinion that the term 'cause of action ' is to be construed with re ference rather to the substance than to the form of action. . .". Applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits. The property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same facts viz., the position of Md. Ismail quoad his co heirs and the beneficial interests of the latter not being affected or involved in the mortgages, the mortgage decree and the sale in execution thereof. No doubt, the plaintiff set up his purchases as the source of his title to sue, but if as we have held the bar under 0. r. 9 applies equally to the plaintiff in the first suit and those claiming under him, the allegations regarding the transmission of title to the plaintiffs in the present suit ceases to be material. The only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession. Their addition, however, does not wipe out the identity otherwise of the cause of action. It would, of course, have made a difference if, without reference to the antecedent want of fun title in Ismail which was common to the case set up in the two plaints in Suit 58 of 1931 and Suit 18 of 1943, the plaintiffs could, on the strength of the possession and dispossession or the possessory title that they alleged, have obtained any relief. It is, however, admitted that without alleging and proving want of full title in Md. Ismail the plaintiffs could be granted no relief in their present suit. (1) ,315. 134 59S.C 14 210 The question is whether the further allegations about possession in October, 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits. This can be answered only in the negative. The learned Judges of the High Court therefore correctly held that the suit was substantially barred by O. IX. It now remains to consider the claim of the plaintiffs to the 2 annas 13 odd gundas share of Ashfaq. In paragraph 52 of their plaint the plaintiffs stated that by a registered sale deed executed on April 18, 1931 Ashfaq, the son of Azam Ali sold the entire interest which he possessed in the Azamabad Tea Estate to Pir Baksh in pursuance of a Bainama dated April 7, 1930 and put him in possession, and in the succeeding paragraph they set out their purchases of this share by a Kabala dated September 2, 1943. In the joint written statement filed on behalf of the defendants 1 and 2 these allegations were controverted. The execution of the sale deed in favour of Pir Baksh was denied and it was further stated that even if the sale deed were proved to have been executed it was a sham and nominal transaction and therefore inoperative to pass title. Though no specific issue in relation to this sale to Pir Baksh was raised, there was a general issue (Issue No. 8) which related to the plaintiff 's acquiring title to the Tea Estate. Ile sale deed by Ashfaq was filed and marked as exhibit 12(i) and the sale in favour of the plaintiffs by Pir Baksh as exhibit 12(c). The effect however of this sale to Pir Baksh on the rights of the plaintiffs to relief does not appear to have been raised before the learned trial Judge. It may be pointed out that the learned trial Judge held that Ismail was the full owner of the property under the lease granted in 1928, by reason of the provisions of the Crown Grants Act and even if this were not so, he held that his co heirs had consented to put him forward as the ostensible owner of the property with the result that they were ' estopped from impeaching the mortgage and the sale of the property in execution of the mortgage decree. It is therefore possible that because of the view which the learned trial Judge was inclined to take of the title of Md. Ismail, the plaintiffs did not seriously put forward their rights under their purchase from Pir Baksh, because if the learned trial Judge was right, the sale by Ashfaq to Pir Baksh even if real 211 would not have helped the plaintiffs to obtain any relief. In this connection it may be pointed that the plaintiffs claim to the 8 pies share which was allowed in their favour by the High Court, was not pressed in the trial court. Even in the High Court, however, the point arising from the sale by Ashfaq to Pir Baksh does not seem to have been pressed. We shall presently advert to and examine the submissions made to us by Mr. Sen as regards the merits of this claim to the share of Ashfaq, but before doing so we must refer to a point raised by Mr. Sen which necessitated a prolonged adjournment of the appeal after the main arguments were heard. After pointing out that the plaintiffs did not agitate or press before the courts below any special right based on the purchase of Ashfaq 's share through Pir Baksh, he submitted that this might possibly have been because the property covered by the sale deed exhibit 12 (i) did not comprise Touza No. 911 the Azamabad Tea Estate. There was scope for this submission because in the record as printed for the use of this Court, the Schedule annexed to the sale deed exhibit 12(i) was not printed but only the portion containing the description of the parties and the words of conveyance, with the result that Mr. Desai was unable to make out whether as a fact Ashfaq 's interest in the suit property was sold under exhibit 12(i). To make matters worse the Schedule to the sale deed of 1943 executed by Pir Baksh was also not translated and printed in the record prepared for the appeal. In view, however, of the categorical statement in the plaint as regards the indentity of the property conveyed under exhibit 12(i) with Ashfaq 's share in the Azamabad Tea Estate, we considered that the appellant 's submission could not be rejected as frivolous. We therefore acceded to the request of Mr. Desai and called foe the original of exhibit 12(i) from the High Court so that counsel might make submissions to us as regards the identity of the property conveyed. The document was accordingly obtained 'and translated for the use of the Court and when the appeal was again placed before us Mr. Sen admitted that the property conveyed by exhibit 12(i) was Ashfaq 's 2 as. 13 gundas odd interest in Touza No. 911. 212 Coming now to the merits of the plaintiff 's claim, it is common ground that if the sale by Ashfaq were real and intended to pass title to Pir Baksh, the plaintiffs would be entitled to a decree for a declaration that in addition to the 8 pies share granted to them by the High Court, they would be entitled to a further 2 as. 13 gundas share of Ashfaq in the plaint A Schedule property. Mr. Sen 's submission, however, was that we should not entertain or give effect to this claim, because several circumstances throw grave suspicion on the reality of the transaction, and that in any event the claim could not be accepted without careful scrutiny of the facts. Having regard to the definite case raised in the pleadings, we are not disposed to reject the claim merely because the same was not pressed in the courts below. Besides we cannot ignore the circumstance that the sale deeds exhibit 12(i) and 12(c) on which the claim was based were filed in the trial court, and Pir Baksh was examined to formally prove these deeds as the 31st witness for the plaintiff. Moreover, even though as regards certain other transfers, the trial Judge recorded findings that they were nominal, there was no such finding as regards the sale by Ashfaq. In view of these features, we have decided not to reject the claim of the plaintiffs based on this ground. There are, however, certain features which throw some suspicion on the reality of the transaction which Mr. Sen pressed before us which have led us to desist from ourselves passing a decree for this additional share in their favour. The circumstances to which Mr. Sen drew our attention were these; (i) though Ashfaq executed the sale deed exhibit 12(i) on April 18, 1931, he figured as the first plaintiff in Suit 58 of 1931 which was filed on 28th November, 1931, without adverting to the sale, a piece of conduct certainly not consistent with the sale being real and intended to pass title; (2) though in the plaint the necessary averments were made regarding their obtaining the share of Ashfaq through Pir Baksh, the claim under this head was not pressed before the trial court; (3) when the plaintiffs preferred an appeal to the High Court from the total dismissal of the suit, they did not raise any specific ground touching their right to this share, nor were any argument 213 addressed to the High Court on this point; and (4) there had been no mutation in the revenue records when this sale was effected and Pir Baksh who was examined as a witness admitted this fact. These circumstances are certainly capable of explanation, but they show that the claim of the plaintiffs cannot be accepted by us straightaway and a decree passed in their favour. In these circumstances, we consider that the proper order to pass would be to remit the matter to the trial Court for recording a finding as regards the reality of the sale on the evidence already on the record and to pass an appropriate decree in the suit, that is, if the sale under exhibit 12(i) were held to be real, the plaintiffs would be entitled in addition to the 8 pies share decreed to them by the High Court, to a further 2 as 13 gondas odd share belonging to Ashfaq which they obtained under exhibit 12(c) through Pir Baksh, and in the event of the sale not being held to be real to no more than what the High Court has decreed. With this modification, the appeal is dismissed with costs. Appeal dismissed.

The property covered by the Tea Estate was granted by the Government by way of lease in 1898 for 30 years. In 1913 it was purchased ' by Azam Ali. When he died in 1917, he left behind 8 sons, 9 daughters and 3 widows. The name of Ismail, his eldest son, was entered in the official records as next in succession. Ismail borrowed considerable sums from National Agency Co. Ltd., and for securing the same, deposited the title deeds of the Tea Estate on the footing that he was its full owner. As the amount under the mortgage was not paid, a suite was filed for realisation of the amount by sale of mortgage property. 193 The suit was decreed and in execution the property was auctioned and sale was confirmed in 1931 in favour of the decree holder who sold the same to Azamabad Tea Estate, the principal respondent in this case. The heirs of Azam Ali brought suit No. 58 of 1931 to set aside the decree and sale in favour of the National Agency Co. Ltd., on ,various grounds but that suit was dismissed for default. The suit out of which the present appeal has arisen was filed subsequently. The plaintiffs appellants who claimed title under purchasers 'for the heirs of Azam Ali challenged the validity of the transactions by which the National Agency Co. Ltd. claimed to have purchased the entire 16 annas interest in the property at the court sale in pursuance ,of a decree obtained by them against Ismail. The trial Court held that the purchase made by the National Agency Co. Ltd. was valid and extended to the entire interest in the property and hence the venders of the plaintiffs had no title to convey to them any interests in the property. The High Court in appeal disagreed with this finding but dismissed the appeal on other grounds except to the extent of an 8 pies share in the property. The appellants came to this Court on a certificate of fitness granted by the High Court. The points raised before this Court were whether the High Court was right in holding that the present suit was barred by O. IX, r. 9 on the ,ground that when suit No. 58 of 1931 was dismissed in default, no action was taken to get it restored, this was raised by the respondent and whether in any event their claims to the 2 as 13 odd gundas share of Ashfaq, son of Ismail, should not have been decreed. HELD (i) that the suit was substantially barred by 0. TX, r. 9. The essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits the property sought to be recovered in the two suits was the same. The title of the ,persons from whom the plaintiffs claimed title by purchase was based ,on the same facts. The additional allegation about possession in October 1934 did not really destroy the basic and substantial identity of the ,causes of action in the two suits. The ban imposed by 0. IX, r. 9 does not create merely a personal bar or estoppel against the particular plaintiff suing on the same cause ,of action and does not leave the matter at large for those claiming under him. The word "plaintiff" in the rule includes his assigns and legal representatives. (ii)that when the Government granted the lease in 1928, the lease was granted not only in favour of Ismail but also in favour of the ,other co sharers although the name of Ismail alone was mentioned in the lease deed. The provisions of section 3 of the Crown Grants Act did not affect the beneficial interest in the lease. Section 41 of the Transfer of Property Act did not help the respondent as there was no evidence to show that Ismail was put forward by 134 159 S.C. 13 194 the other co sharers as the ostensible owner of the property. The conduct of the co sharers in permitting Ismail to manage the common property did not by itself raise any estoppel precluding them from asserting their rights. Even a cursory enquiry by the mortgagee would have disclosed that Ismail was not the full owner. As regards the contention of the appellants that they should have been granted a decree to the extent of 2 As. 13 odd gundas share of Ashfaq in addition to the 8 pies share decreed to them by the High Court, the case was ordered to be remitted to the trial Court for giving its finding regarding the reality of the sale by Ashfaq. Gopi Ram vs Jagannath Singh, I.L.R. 9 Pat. 447, Mohammad Khalil Khan vs Muhbub Ali Mian, 75 I.A. 121 and Soorijomonee Dasee vs Suddanund, (1873) 12 Ben. L.R. 304, referred to.

ecial Leave Petition (C) No. 8566 of 1988. From the Judgment and Order dated 9.10.1987 of the Andhra Pradesh High Court in W.P. No. 306 of 1983. R. Mohan for the Petitioner. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition is for leave to appeal under Article 136 of the Constitution from the judgment and order of the High Court of Andhra Pradesh dated 9th October, 1987. The question that was urged before the High Court and the question which is sought to be raised in this petition is whether the respondent Pradesh Rayons Ltd. which is manufacturing Rayon Grade Pulp, a base material for manufacturing of synthetics or manmade fabrics is an industry as mentioned in Schedule I of the Water (Prevention and Control of Pollution) cess Act, 1977 for the purposes of levy of Water Cess under the Act. The water (Prevention and Control Of Pollution) Act, 1974 was passed by the Parliament to "provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith". For the aforesaid purposes, the Act contemplated creation of State Boards at State level and the Central Board at the national level. Thereafter, the being Act 36 of 1977 was passed (hereinafter called 'the Act '). The preamble to the said Act states that the said Act was "to provide for the levy and collection of a cess on water consumed by persons carrying on certain industries and by local authorities, with a view to augment the resources of the Central Board and the State PG NO 383 Boards for the prevention and control of water pollution constituted under the ". Therefore, the said Act was passed only for the purpose of providing for levy and collection of cess on water consumed by persons carrying on certain industries with a view to augment the resources of the Central Board and the State Boards. Section 2(c) stipulates A `specified industry ' means any industry specified in Schedule T. Section 3 provides as follows: "3. Levy and collection of cess. (1) There shall be levied and collected a cess for the purposes of the and utilisation thereunder. (2) The cess under sub section ( I) shall be payable by (a) every person carrying on any specified industry; and (b) every local authority, and shall be calculated on the basis of the water consumed by such person or local authority, as the case may be, for any of the purposes specified in column (1) of Schedule II, at such rate, not exceeding the rate specified in the corresponding entry in column (2) thereof, as the Central Government may, by notification in the Official Gazette, from time to time, specify. " Therefore, this section provides for levy and collection of cess from the specified industries. Specified industry is one which is mentioned in Schedule I which is as follows: "1. Ferrous metallurgical industry. Non ferrous metallurgical industry. Mining industry. Ore processing industry. Petroleum industry. Petro chemical industry. Chemical industry. Ceramic industry. PG NO 384 9. Cement industry. Textile industry 11. Paper industry. Fertilizer industry. Coal (including coke) industry. Power (thermal and diesel) generating industry. Processing of animal or vegetable products industry. " Therefore, the short question, is, whether the industry run by the respondent herein for manufacturing Rayon Grade Pulp, a base material for manufacture of synthetics or man made fabrics is one of the industries mentioned in Schedule I hereinbefore. In this case, the respondent company was registered as company in 1975. The supply of energy to the company commenced on August 22, 1981 and the production began from September 1, 1981. The company manufactures rayon grade pulp of 26250 tonnes per annum. The Company was served with a notice on 12th August, 1981 to furnish the quantum of water consumed for assessment under the Act. Based on the returns filed by the respondent as required under section S of the Act, assessment of water cess was made by an order dated 31st December 1981. Aggrieved by the said order the respondent filed an appeal before the Appellate Committee constituted under the Act. The Appellate committee by its order dated 30th November, 1982 conformed the orders of the assessment passed by the petitioner. Before the Appellate Committee various contentions were urged and only one of such contention survives now and is agitated before us, namely, that the Rayon Industry is nOt included in Schedule I of the said Act. The Appellate Committee by its order said as follows: "We are unable to agree with the arguments advanced by the learned counsel. The appellant industry is manufacturing Rayon Grade Pulp which comes under the category of textile industry as it involves the production of Rayon Grade Pulp. a base material for manufacture of synthetic of man made fibres. ' ' PG NO 385 From the aforesaid, it appears that the Appellate Committee was of the view that the respondent herein was manufacturing Rayon Grade Pulp which comes under the category of Textile mentioned in Schedule I of the Act. Textile industry is item No. 10 in the aforesaid Schedule. Aggrieved by the decision of the Appellate Committee, the respondent herein filed writ petition challenging the constitutional validity of the Act as well as the levy of cess on water on the ground that it was not one of the industries mentioned in the Schedule. The High Court by its order dated 9th October, 1987 rejected the contention relating to the constitutional validity but upheld the contention that the respondent 's industry was not an industry which is mentioned in Schedule I and as such was not liable to pay cess. It is the propriety or the correctness of that decision which is sought to be canvassed before us by this petition. It must, therefore, be made clear that we are not concerned with the correctness or otherwise of the decision of the High Court about the constitutional validity of the Act in question. That is not at issue before us since the petitioner, Andhra Pradesh State Board for Prevention and Control of Water Pollution has not challenged that finding. The only question is whether the respondent is an industry as mentioned in the aforesaid schedule. The High Court in the impugned judgment has held that Rayon Grade Pulp is not covered by any of the items specified in the said Schedule. We are of the opinion that the High Court was right. Before us it was sought to be canvassed that Rayon Grade Pulp is covered either by Item No. 7 which is chemical industry or 13y item No. 10 which is textile industry or item No. I1 which is paper industry. We are unable to accept the contention. It has to be borne in mind that this Act with which we are concerned is an Act imposing liability for cess. The Act is fiscal in nature. The Act must, therefore, be strictly construed in order to find out whether a liability is fastened on a particular industry. The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to its natural construction of words. See the observations in Re Micklethwait, ; , 456. Also see the observations in Tenant vs Smith, ; and Lord Halsbury 's observations at page 154. See also the observations of Lord Simonds in St. Aubyn vs AG, ; at 485. Justice Rowlatt of England said a long time ago, that in a taxing ACt one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption at to tax. Nothing is to be read in, nothing is to be implied. One has to look fairly at the language used. See the observations in Cape Brandy Syndicate vs IRC, [1921]J 1 KB PG NO 386 64 at 71. This Court has also reiterated the same view in Gursahai Saigal vs C.I.T. Punjab, ; ; S.L. T. Madras vs V. MR. P. Firm, Muar, [1965] I SCR 815. and Controller of Estate Duty Gujarat vs Kantilal Trikamlal, ; The question as to what is covered must be found out from the language according to its natural meaning fairly and squarely read. See the observations in IRC vs Duke of Westminster, [1936] AC I at 24, and of this Court in A V Fernandez vs The State of Kerala, ; Justice Krishna Iyer of this Court in Martand Dairy & Farm vs Union of India, has observed that taxing consideration may stem from administrative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrian, interpretation must prevail. In this case where the question is whether a particular industry is an industry as covered in Schedule I of the Act, it has to be judged normally by what that industry produces mainly. Every industry carries out multifarious activities to reach its goal through various multifarious methods. Whether a particular industry falls within the realm of taxation, must be judged by the predominant purpose and process and not by any ancillary or incidental process carried on by a particular industry in running its business. Chemical process would be involved to a certain extent, more or less in all industries, but an industry would be known as a chemical industry if it carries out predominantly chemical activities and is involved in chemical endeavours. We fail to see that Rayon Grade Pulp could be considered even remotely connected as such with chemical industry or textile industry or paper industry. In all preparations, there is certain chemical process but that does not make all industries chemical industries. The expression "chemical" means, according to Collins English Dictionary. any substance used in or resulting from a reaction involving changes to atoms or molecules or used in chemistry. The Concise Oxford Dictionary, 8th Edition page 170 defines "chemical ' ' as made by or relating to, chemistry. Broadly and literally, in our opinion, it can be said that the Rayon Grade Pulp is neither chemical industry nor textile industry nor paper industry. We find it difficult on a broad and literal construction to bring the industry of the respondent into any of these categories. In other words, to find out the intention of the legislation, if possible it should be PG NO 387 found out from the language used in case of doubt. The purpose of legislation should be sought for to clarify the ambiguity only, if any. The fairest and most rational method, says Blackstone, to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. See Commentaries on the Laws of England by Blackstone (facsimile of 1st edition of 1765, University of Chicago Press, 1979 Vol. 1 p. 59.). The words are generally to be understood `in their usual and most known signification ', although terms of art `must be taken according to the acceptation of the learning in each art, trade and science. If words happen still to be dubious, we may establish their meaning from the context, which includes the preamble to the statute and laws made by the same legislator on the same subject. Words are always to be understood as having regard to the subject matter of the legislation. See Cross Statutory Interpretation, 2nd Edition page 21. This Court in Lt Col. Prithi Pal Singh Bedi etc. vs Union of India & Ors., [1983] I S.C.R. 393 at page 404 of the report reiterated that the dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. Therefore, the first question to be posed is whether there is any ambiguity in the language used. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. Bearing the aforesaid principle in mind, we find that there is no absurdity in the literal meaning. The purpose of the Act is to realise money from those whose activities lead to pollution and who must bear the expenses of the maintenance and running of the State Board. It is a fiscal provision and must, therefore, not only be literally construed but also be strictly construed. Having regard to the literal expression used and bearing in mind the purpose for the legislation, we arrive at a result that certain PG NO 388 industries have to pay the expenses of the maintenance and functioning of the State Boards. Considering the principle broadly and from commonsense point of view, we find nothing to warrant the conclusion that Rayon Grade Pulp is included in either of the industries as canvassed on behalf of the petitioner here and as held by the High Court in the judgment under appeal. In this case, we must also note that neither the water Pollution Board nor any authorities under the Act nor the High Court proceeded on any evidence how these expressions are used in the particular industry or understood in the trade generally. In other words, no principle of understanding in "common parlance" is involved in the instance case. In that view of the matter, we are of the opinion that the contention sought for by the petitioner is of no substance. Our attention, however, was drawn to the decision of a learned single Judge of the High Court of Kerala in M/s. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., Mavoor vs The Appellate Committee for Water Cess, Trivandrum and others, A.I.R. 1983 Kerala 110. There, the learned single Judge of the Kerala High Court held that industry manufacturing rayon grade pulp is chemical industry. The High Court has observed that the product of the Pulp Division of a rayon silk manufacturing company is rayon grade pulp, extracted from bamboo or wood. The High Court noted that the pulp produced in the Pulp Division of the company is the raw material for the Staple Fibre Division. The High Court further observed that the pulp in question is a chemical used as chemical raw material, in the form known as chemical cellulose, for preparation of fibres. The High Court noted that for the scientist cellulose is a carbohydrate an organic compound, a saccharide and for the layman also it is a chemical like salt and sugar. Manufacture of pulp from wood or bamboo involves consumption of large quantities of water which get polluted in the process; and "chemical industry ' ' in the context in which it is used in Schedule I of the Act, can therefore, include an industry manufacturing rayon grade pulp. We are unable, with respect, to accept the circuitous process of reasoning of the Kerala High Court. As mentioned hereinbefore, looked at from this circuitous method every industry would be chemical industry. It could not have been the intention to include all industries because every industry has to go to certain chemical process more or less and, therefore, it could not be so construed. Such expression should, therefore, be construed reasonably, strictly and from a commonsense point of view. The High PG NO 389 Court of Kerala has set out in the said judgment the company 's case in that case which also produced Rayon Grade Pulp and the manufacturing process consisted only of isolating cellulose present in bamboo and wood by removal of "lignin" and other contents, and that the resultant product is not chemical cellulose. It explained the process as under: "The actual process of manufacture of Rayon grade pulp is by feeding the raw materials on the conveyors leading to the chippers, where they are chipped into small pieces in uniform sizes. The raw materials are washed by a continuous stream of water before they are fed into chippers for removal of their adhering mud and dirt. The chips are then conveyed into Digesters, where they are subjected to acid pre hydrolysis, using dilute sulphuric acid solution. The spent liquor is then drained out, and the chips washed to remove the acid. The chips are again cooked using a solution containing cooking chemicals at high temperature of above 160C. After the chips are thus cooked the pressure is released, and the material is collected in a blow tank, from where the chipped pulp is sent to "Knotter Screen" for removal of uncooked particles. The pulp is washed in a series of washers in a counter current manner. The washed pulp is bleached in a multi staged Bleaching Plant, and converted into sheets in a continuous machine. The pulp sheets so obtained are sent to other factories for their conversion into Staple Fibre. " The said High Court also relied on a passage from the "Book of Popular Science" Grolier, 1969, Vol. 7, p. 55 which reads as follows: "Just what is a chemical, after all? Presumably it is a pure chemical substance (an element or compound) and not a mixture. Thus sulphuric acid is a chemical . But common salt and sugar, with which all of us are familiar, are also pure chemical substances . The truly chemical industries, which manufacture chemicals, are seldom well known to the public. This is because we, as consumers, do not ordinarily make use of chemicals in their pure form. Instead they are converted into products that reach the consumer only after a number of operations . " (Emphasis supplied) PG NO 390 As mentioned hereinbefore, the expression should be understood not in technical sense but from broad commonsense point of view to find out what it truly means by those who deal with them. Bearing the aforesaid perspective in mind, we are unable to agree with the view of the Kerala High Court expressed in the aforesaid judgment. In that conspectus of the Kerala High Court everything would be included in the process of chemical. In the aforesaid view of the matter we are of the opinion that the High Court of Andhra Pradesh in the impugned judgment was right and the High Court of Kerala in the judgment referred to hereinbefore was not right. In the aforesaid view of the matter this petition fails and is accordingly dismissed.

The respondent, Andhra Pradesh Rayons Ltd., manufacturing Rayon Grade Pulp, a base material for the manufacture of synthetics or man made fabrics, was assessed by the petitioner under the provisions of which provided for levy and collection of Water cess from the specified industries enumerated in Schedule I of the Act. On appeal, the Appellate late Committee confirmed the order of assessment on the ground that the respondent was manufacturing Rayon Grade Pulp which came under the category of Textile industry. The respondent filed a writ in the High Court challenging the levy Inter alia on the ground that it was not one of the industries mentioned in the Schedule. The High Court upheld this contention. Before this Court, it was sought to be canvessed by the petitioner that Rayon Grade Pulp was covered either by Item No. 7 of the Schedule, which was chemical industry, or item No. 10 which was textile industry, or item No.11 which was paper industry. Dismissing the petition, it was, PG NO 380 PG NO 381 HELD: (I) The Act being fiscal in nature must be strictly construed. The question as to what is covered must be found out from the language according to its natural meaning, fairly and squarely read. [385F; 386B] (2) In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax, there is no presumption as to tax. Nothing is to be read in, nothing is to be implied. [385H] (3) Whether a particular industry is an industry covered in Schedule I has to be judged normally by what that industry produces mainly, its predominant purpose and process, and not by any ancillary or incidental process carried on by it. [386D] (4) Chemical process would be involved to a certain extent, more or less in all industries, but an industry would be known as a chemical industry if it carries out predominantly chemical activities and is involved in chemical endeavours. [386E] (5) Taxing consideration may stem from administrative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrian, interpretation must prevail. [386C] (6) One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should accept literal construction if it does not lead to an absurdity. [387E] (7) There is no absurdity in the literal meaning. Broadly and literally it can be said that the Rayon Grade Pulp is neither chemical industry nor textile industry nor paper industry. [387G;386H] In Re Micklethwait., [1885] II EX 452. 456; Tenant vs Smith; , ; St. Aubyan vs AG., [1951] 2 All E.R. 473; Cape Brandy Syndicate vs IRC. , at 71; Gursahai Saigal vs C.I.T. Punjab, ; ; C.I.T. Madras vs MR. P. Firm, Muar, ; ; Controller of Estate Duty, Gujarat vs Kantilal Trikamlal, ; ; IRC vs Duke of Westminster, at 24; AV Fernandez vs The State of Kerala, ; ; Martand Dairy & Farm vs Union of India, [1975] Supp. SCR 265; Lt Col. Prithi Pal Singh Bedi vs Union of India, , referred to. PG NO 382 M/s. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. Mavoor vs The Appellate Committee for Water Cess, Trivandrum, A.I.R. 1983 Kerala 110. overruled.

Appeal No. 2269 of 1972. (From the Judgment and Order dated 9 5 1972 of the Allahabad High Court in Special Appeal No. 125/70). J.P. Goyal, G.S. Chatterlee and Shree Pal Singh, for the Appellants (Other than 2nd appellant). S.M. Jain and S.K. Jain, for the Appellant No. 2. V.M. Tarkunde, Yatindra Singh, Deepal Gupta, Najahad Hussain, S.S. Khanduja, Urea Dutta and Miss Manik Tarkunde, for Respondents Nos. 1, 4, 5, 7 and 8. S.K. Mehta, for Respondents Nos. 11 12. The Judgment of the Court was delivered by CHANDRACHUD, J. This appeal by certificate raises a question as regards the validity of a will executed by an eighty year old woman 579 five days before her death. The testatrix Jaggo Bai had a muchmarried son called Beni Chand, the last of whose three marriages has given birth to this long litigation. Beni Chand 's first wife, Chameli Bai, died leaving behind Re spondents 3, 5, 6, 7 and 8 as her heirs. His second wife Kamla Kunwar is Respondent 1. Respondent 4 is her daughter and respondents 9 and 10 are her grand daughters. Beni Chand had no male issue from his two wives and therefore, in 1928, he gambled for a ion by marrying Ved Kumari. That marriage created dissensions in the family, partly because Ved Kumari belonged to a different caste but more substan tially because the entry of yet another woman in the house hold was like a last straw. On October 26, 1961 Jaggo Bai made a will disinheriting her son Beni Chand and the chil dren born of Ved Kumari, and bequeathing her extensive properties to the progeny born of Chameli Bai and to Kamla Kunwar and her progeny. Jaggo Bai died on October 31, 1961. Kamla Kunwar who was appointed under Jaggo Bai 's will as an executrix filed a petition in the Allahabad High Court for probate of the will. Beni Chand filed a caveat contend ing that the will was a forgery and was prepared in collu sion with one Dwijendra Nigarm, an advocate, while Jaggo Bai was lying in an unconscious state. A learned single Judge of the High Court dismissed the petition on the ground that the propounder of the will had failed to explain the suspicious circumstances surrounding the execution of the will. That judgment was reversed in appeal by a Division Bench of the High Court, which upheld the validity of the will. This appeal by certificate is directed against the appellate judgment of the High Court. There is no gainsaying the fact that the execution of the will is shrouded in circumstances which require a cogent explanation, particularly as the testatrix was ad vanced in age and the provisions of the will are prima facie unnatural. But, we do not see enough reason for rejecting the conclusion of the High Court that the executrix who propounded the will has offered a satisfactory explanation of those circumstances. The relations between Jaggo Bai and her son Beni Chand were strained beyond words. A long span of over 30 years following upon Beni Chand 's marriage with Ved Kumari is littered with ,a spate of litigations between the mother and son. Beni Chand gave to his mother a good look of law and law courts, civil and criminal. Exasperated by his unfilial contumacy, Jaggo Bai executed a gifit deed of her Stridhan properties excluding him scrupulously from her bounty. Later, she executed a document of a testamen tary nature disinheriting him. These instruments were on persuasion cancelled but Beni Chand did not mend his ways. On October 26, 1961 when the impugned will was executed by Jaggo Bai, a litigation was still pending between the mother and son, and just 3 or 4 days before the execution of the will, the eighty year old Jaggo Bai had to appear in the Court. In this background, the fact that Jaggo Bai did not give any part of her properties to Beni Chand cannot be described as unnatural. Add to that the stark fact that the testatrix while disinheriting Beni Chand, bequeated the entire property to his wife, Kamla Kunwar, the children born of her and to the progeny born of Beni Chand 's first wife Chameli Bai. Jaggo Bai. 580 never reconciled herself to Beni Chand 's third marriage with Ved Kumari and she excluded that branch from the be quest. It is alleged that Dwijendra Nigam, an advocate, con spired with Jaggo Bai 's pro deceased daughters 's son Ratan Lal to forge the will. But from the long and varied cross examination of Nigam it is difficult to discover any reason why he should do so. He received no benefit under the will and had no interest either in seeing that the progeny born of Beni Chand 's first two wives should get the property or in ensuring that Beni Chand, Ved Kumari and their children should be left out. It is significant that Beni Chand who alleged by his caveat that Nigam was the villain of the piece, did not file any affidavit in support of his caveat and what is more important, he did not enter the witness box to substantiate his accusation. The charge that Nigam and Ratan Lal forged the will is thus left to chance and guess work. As for Ratan Lal, who is respondent 2 to this appeal, he admitted the execution of the will though it was against his interest to do so. If the will is set aside, Beni Chand and Ratan Lal will each be entitled on intestacy to a moiety in Jaggo Bai 's estate, which was her Stridhana property. Ratan Lal gets nothing under the will of his grand mother Jaggo Bai. These features of the case dispel the suspicion arising out of the circumstances that the testatrix was at the threshold of death when she made the will, that she was far too advanced in age to bring to bear an independent judgment on the disposal of her property and that she disinherited her only son under her will. It has to be mentioned that though over eighty years of age, Jaggo Bai was not an in valid, that just a few days before her death she had ap peared in the court in a case relating to Zamindari Bonds between her and Beni Chand, that a criminal case launched by Beni Chand against her was defended by her Zealously leading to an order of composition two or three months before her death and that in spite of the unkind cuts that Beni Chand had inflicted on her she wanted to try and help him at one stage. In an old letter (exhibit 161 Ga) which she wrote to him, she said plaintively: "Now have a short span of life. I shall not be coming to see what happens hereafter. Please do not injure my heart. Come back at once . ". These entreaties fell on deaf ears. Beni Chand dragged his mother from pillar to post over a course of twenty years and he never came back. He lived separately from her and did not bother to attend to her even when she was dying. He awoke to his son ship only when it came to claiming the mother 's estate. Two circumstances would appear to have influenced the judge ment of the learned Single Judge in ho1ding that the will was not proved to be Last will and testament of Jaggo Bai. The first circumstance is that the thumb mark which Jaggo Bai is alleged to have made on the will does not bear the usual endorsement that it is of the left or the right thumb and secondly that neither of the two attesting witnesses was examined to prove the formal execution of the will. The Division Bench of the High Court, sitting in appeal against the judgment of the learned Single Judge, has ac cepted the explanation 581 offered by Shri Nigam that the endorsement remained to be made through inadvertence. Nigam had no personal interest in the matter and the explanation, being unmotivated, could reasonably be accepted. The learned judges also accepted the evidence of the Advocate that he himself held the right hand of Jaggo Bai and took the impression of that thumb on the will. That meets the argument that an impression admitted to be of Jaggo Bai 's left thumb does not tally with the one on the will. The two will not tally since the two thumbs would have different characteristics. The will was executed in triplicate, one copy of which was deposited with the District Registrar on October 28, 1961, that is, two days after the will was executed. It is difficult to believe that a practising advocate would run the risk of depositing a forged will with a public official while the testatrix was still alive. Beni Chand lived in the same town as his mother, though separately from her and it is impossible in the very nature of things that as alleged by him, Nigam and Ratan Lal took the thumb impression of Jaggo Bai while she was lying unconscious. Jaggo Bai might lose her conscious ness but she was possessed of a large estate and in the normal course of human affairs, she would,. while uncon scious, be surrounded by a large number of close relatives of which there were many in the town of Banda in which she lived. To think that Nigam could steal a thumbimpression of the dying woman puts a strain on one 's credulity, particu larly when he stood to gain nothing and Ratan Lal, the alleged coconspirator, would be better off without the will. It is a strange plea that Ratan Lal who, on intestacy, stood to gain a one half share in his grand mother 's estate chose to exclude himself by fabricating the will. There is some evidence that a portion of Jaggo Bai 's right thumb was mutilated but on examination of the relevant circumstances in that behalf, the Division Bench of the High Court has rejected the suggestion that the right thumb of the testa trix was so badly damaged as to be incapable of producing an impression. With these plain findings of fact, we see no reason for interfering by going into minute details of the evidence. There is no substance in the grievance that the proof of the will in this case is incomplete for want of an attesting witness 's evidence. Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Since by section 63 of the Succession Act, 1975 a will has to be attested by two or more witnesses, section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the will. But this argument overlooks that Dwijendra Nigam is himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai. None of the three is described in the will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary docu ment as an attesting witness cannot take the place of evi dence showing due execution of the document. By attestation is 582 meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by sec tion 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiv ing a personal acknowledgment from the executant regards the execution of the document. Nigam 's evidence shows that he and the other two witnesses saw the testatrix putting her thumb mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb mark on the will. The question which now arises for consideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the will by Jaggo Bai is proved satisfactorily. It is well settled that the onus probandi Iies in every case upon the party propounding a will, and he must satisfy the con science of the Court that the instrument so propounded is the last will of a free and capable testator.(1) By "free and capable testator" is generally meant. that the testator at the time when he made the will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the will is discharged if the propound er leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by section 68 of the Evidence Act. But where, as in the instant case, the circumstances sur rounding the execution of the will are shrouded in suspi cion, it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence. The testatrix was advanced in age being past eighty years of age, the will contains provisions which are prima facie unnatural since the only son is disinherited under it and the testatrix died five days after making the will. There can be no dispute that these are gravely suspicious circum stances. But the propounder has, in our opinion, offered an explanation of these circumstances which ought to satisfy a prudent mind. Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circum stances attendant on the execution of the will raise a suspicion as regards its due execution. The burden in testamentary cases is of a different order than in other cases in the sense that an attesting witness must be called, wherever possible, to prove execution, the propounder must remove the suspicion, if any, attaching to the execution of the will and if there be any doubt regarding the due execu tion, he must satisfy the conscience of the court that the testator had a sound and disposing state of mind and memory when he made the will. "Reasonable scepticism, not an obdu rate persistence in disbelief nor a resolute and impenetra ble incredulity" is demanded of the testamentary judge: "He is never required to close his mind to the truth". (2) Gajendragadkar J. who spoke for the Court in Iyengar 's case(3) noticed these (1) See Jarrman on Wills (6th Ed., D 50) and H. Venka tachala lyengar vs B.N. Thijmajamma & Ors. [1959] Suppo. 1 S.CR. 426. (2) See Harmes vs Hinksen per Lord Du Parcq. (3) [1959] Supp. 2 S.CR. 583 observations of Lord Du Parcq with approval and said: It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judi cial mind must always be open though vigilant, cautious and circumspect." Bearing these principles in mind and giving equal weightage to openness and vigilance, the position emerging from the evidence may be briefly summed up thus: Beni Chand 's behaviour was far too unfilial and remorseless for him to find a place in the affections of his mother Jaggo Bai. He had bruised her so badly that she could not possi bly reward him with a precious inheritance. But she gave her estate not to strangers but to his children born of the first two wives and to the second wife Kamla Kunwar. She also gave him a personal right of residence in one of the houses. Shri Nigam, the advocate, had no personal motive or bias to hatch a conspiracy to forge the will. He received no benefit under the will, directly or indirectly. And Ratan Lal was the least suitable co conspirator because, he stood to lose under the will what he would have got without it. He would have been an equal sharer with Beni Chand in Jaggo Bai 's estate under section 15(1)(a)) of the . The entire property comprised in the will was Jaggo Bai 's Stridhana. The will was read out to Jaggo Bai and in spite of her advanced years she was in a sound state of mind and body. The chosen few do possess that privilege. Thus the executrix has successfully discharged what, in the circumstances, was a heavy onus of proving the due execution of the will and of offering a satisfactory explanation of the suspicious circumstances surrounding the will. We are in agreement with the Division Bench of the High Court, which was conscious of the special rules governing proof of testamentary instruments, that the will propounded by the executrix is the last will and testament of Jaggo Bai, made while she was in a sound and disposing state of mind and memory. Beni Chand who opposed the grant of probate to his wife Kamla Kunwar died during the pendency of the appeal in this Court. He is now represented by his legal representatives almost all of whom supported the grant of probate. The one person from amongst the heirs of Beni Chand who stoutly pressed this appeal is Vikram Chander, one of the sons of Beni Chand, born of his third wife Ved Kumari. While Kamla Kunwar 's appeal was pending before the Division Bench of the High Court, Beni Chand alienated some of the properties included in the will to a person called Sadhu Prasad. The alienation was purportedly made on the basis that the learned Single Judge of the High Court had set aside the will and had refused to grant the probate to the executrix. The alienee Sadhu Prasad is also an appel lant before us, having joined Beni Chand in filing the appeal. We have had the benefit of the arguments advanced by Mr. Jain on behalf of the alienee but nothing that he has urged is enough to upset the view taken by the Division Bench of the High Court. The only argument advanced by Mr. Jain to which refer ence need be made is that even alienees are entitled to citations in probate proceedings and in the absence of such citations the grant of probate is 584 vitiated. In support of this submission reliance is placed on a judgement of the Madhya Pradesh High Court in Banwari lal Shriniwas vs Kumari Kusum Bai and Ors. C) It was held in that case that any interest, however slight, and even the bare possibility of an interest is sufficient to entitle a party to oppose the grant of probate. A purchaser, there fore, who acquires an interest in the estate of the testator by reason of a transfer by his heirs must be cited in testa mentary proceedings. We will assume without affirming that this is the true position in law but the important distinc tion is that the alienee in the instant case is a trans feree pendeme lite who purchased some of the properties included in Jaggo Bai 's will while the Letters Patent Appeal was pending in the Allahabad High Court. In the very nature of things no citation could be issued to him prior to the commencement of the probate proceedings. In fact, we felt that the alienee had no right to be heard in this appeal. Nevertheless, we heard his counsel on the point whether the executrix has established the will. One reason why we heard the alienee is that he should not be able to raise any objection later that the decision in these proceedings is for some reason or the other not binding upon him. The property included in the will is for the time being in the possession of a Receiver appointed by the Court. Since we have upheld the will, the Receiver shall have to hand over the property to the executrix, Kamla Kunwar, who is respondent 1 to this appeal. We however direct that the Receiver shall continue in possession Of the property for a period of 4 months from today and hand it over to respondent 1 on the expiry of that period. The alienee Sadhu Prasad may, if so advised, file a suit within that period for such relief as he is advised to seek and obtain interim orders, if he may, within that period as regards the possession of the property alienated to him. Subject to such orders, if any, the Receiver shall hand over the property to respond ent 1, Kamla Kunwar. Mr. Tarkunde who appears on behalf of respondents 1, 4, 5, 7 and 8 made a statement before us on the conclusion of the arguments in the appeal that even if we uphold the validity of the will, his clients would be willing to make an ex gratia payment to 4 out of the 5 children born to Beni Chand from Ved Kumari. Two daughters Subhashni Seth and Chander Rekha and three sons, Pratap Chander, Vikram Chander and Khem Chander were born to Beni Chand from Ved Kumari. Mr. Tarkunde has given an undertaking to this Court on behalf of his clients that they shall pay a sum of Rs. 20,000/ to each of the two daughters, Subhashni Seth and Chander Rekha and a similar amount to each of the two sons, Pratap Chander and Khem Chander. Under this arrangement, no amount whatsoever shall be payable to Vikram Chander and not certainly to the alienee Sadhu Prasad. According to the undertaking, the aforesaid amount totalling Rs. 80,000/ shall be paid to the four persons mentioned above within one year of the date on which respondent 1 obtains actual pos session of the properties included in the will, which were alienated ,by Beni Chand. Mr. Tarkunde also agrees and undertakes on behalf of 1) A.I.R. 1973 M.P. 69. 585 clients that in the event that the aforesaid amount or any part of it is not paid as stipulated, the persons to whom the amount is payable, or any one or more of them, shall be entitled to recover it in execution of this judgment as if there were a decree in favour of each of them in the sum of Rs. 20,000/ . In the result, we dismiss the appeal and direct that the costs of the appeal shall be paid equally by Vikram Chand er, the son of Beni Chand and by the alienee Sadhu Prasad. M.R. Appeal dismissed.

In respect of an alleged speech made, on May 5, 1974, at a meeting held in Tughlakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen 's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment. The order of conviction was upheld in appeal by the Sessions Court but in revision, the Delhi High Court while upholding the conviction re duced the sentence to the period already undergone. In appeal by special leave to this Court, the appellants contended (1) There was no legal evidence to warrant the conviction; (2) The courts below were not justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike. was, in fact, launched on May 8, 1974 and (3) The conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to go on strike is outside the defi nition of the word "strike" contained in rule 118(3)(b) of the Defence of India Rules, 1971. Allowing the appeal by special leave, the court, HELD: (1) The courts below were justified in assuming without formal evidence that the railway strike was immi nent on May 5. 1974 and that a strike intended to paralyse the civic life of the nation was undertaken by a section of workers On May 8, 1974. [995A B] (2) The purpose of section 57 of the Evidence Act is to provide that the court shall take judicial notice of certain facts rather than exhaust the category of facts of which the court may in appropriate cases take judicial notice. Recog nition of facts without formal proof is an act of expedien cy. Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No court insists on a formal proof by evidence of notorious facts of history past or present and events that have rocked the nation need no roof and are judicially noticed. judicial notice in such matters takes place of proof and is of equal force. [994F H, 995 A] (3) The Government possesses the power to issue an appropriate order under rule 118(1) prohibiting the strike "in connection with any industrial dispute" even if there is no existing industrial dispute because the owner can be exercised prophylactically by preventing a strike in connec tion with an imminent strike. [995C D] (4) In order to maintain a charge under rule 118(1) of the Defence of India Rules, 1971, the prosecution has to establish not only that a strike was imminent or had actual ly taken place of which indicial notice may be taken but further that the strike was in connection with the industri al dispute which is a matter of evidence. [995E F] 992 (5) What is chargeable as contravening the prohibition must under the order issued by the Government of India under Rule 118(1)(a) is, in the circumstances of this case, the words used by the speakers and not the gist of the speeches made by a member of the audience. A summary of speech may broadly and generally not be inaccurate and it may ' not faithfully reflect what the speaker actually said and in what context. [994D E] (6) Rule 118(1)(a) limits the power of the Government to issue an appropriate order, general or special, for prohib iting inter alia, a strike in connection with any industrial dispute. Since the rule does not empower the Government to issue an order prohibiting strikes generally, whet.her it is in connection with the industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industri al dispute. In the instant case, the prosecution did not lead any evidence to prove this important ingredient of the offence and the generalisation made by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any industrial dispute. [995F G] (7) The contention of the prosecution that what is contem plated by rule 118 (1)(a) itself is a strike in connection with an industrial dispute and, therefore, it is not neces sary for the prosecution to establish that the strike was in connection with any industrial dispute is neither warranted nor supported by anything contained in sub rule (3) of rule 118 which defines expressions "industrial dispute" and "strike". [995H, 996A B] [In view of the finding that the evi dence led by the prosecution is insufficient to establish the charge, in the instant case, the court thought it unnecessary to consider the question whether the conduct attributed to the appellants fall within the mischief of the order dated 26 11 1973, since inciting other workers to go on strike may be outside the definition of the words "strike" contained in Rule 118(3)(b) of the Defence of India Rules, 1971. " The court, however, pointed out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant case may be punished in Rule 36(6) read with Rule 43(1)(a).]

iminal Appeal No. 09 of 1966. Appeal by special leave from the judgment and order dated November 24, 1965 of the Bombay High Court in Criminal Revi ion Application No. 232 of 1965. 194 A.S. R. Chari, N. C. Maniar, P. C. Bhartari and J. B. Dada. chanji, for the appellant. G. L. Sanghi and section P. Nayyar, for respondent No. 1. N. C. Maniar, K. L. Hathi and Atiqur Rehman, for respondent No. 2. The Judgment of the Court was delivered by Vaidialingam, J. In this appeal, by special leave, on behalf of the appellant, the fifth accused in Special Case No. 9 of 1963. in the Court of the Special Judge for Greater Bombay, Mr ' A. section R. Chari, learned counsel, challenges the order, dated November 24, 1965, passed by the High Court of Bombay, in Criminal, Revision Application No. 232 of 1965. There are five accused, in Special Case No. 9 of 1963. The appellant, and accused No. 4, are partners of an industrial concern, known as 'Premier Industries '. Accused No. 1 is an Income tax Consultant, and accused Nos. 2 and 3, are clerks. in the Income tax Department. The substance of the prosecution case. against these five accused, is that they formed a conspiracy, to cheat the income tax authorities, in respect of the income tax assessments, of the Premier Industries, for the assessment year 1960 61, and, in pursuance of the said conspiracy, committed ,offences, under section 420 IPC., and section 5(1)(d) read with section 5(2). of the Prevention of Corruption Act, 1947 (Act 11 of 1947). (hereinafter called the Act). They have also been charged with an offence, under section 468 IPC., alleged to have been committed, by them, in furtherance of the said conspiracy. The allegations, relating to the commission of the offence,. under section 420 IPC., is comprised in charge No. 2. That charge ends up by saying that, by the various acts, mentioned therein. the appellant, along with accused No. 1, who is the Income tax Practitioner, and accused No. 4, dishonestly or fraudulently induced the income tax authorities and obtained assessment order for less income tax than due by accused Nos. 4 and 5, and that. all the three of them, have committed an offence, under section 420. It is not necessary to refer to the other charges. The appellant raised an objection, to the framing of a charge. under section 420 IPC. According to him, the charge should really have been framed under section 417, on the ground that the assessment order, in this case, is not 'property '. He also raised an objection, that the assessment order, is not 'valuable security '. The Special Judge, by his order, dated February 3, 1965, re jected the preliminary objections, raised by the appellant. He held that the assessment order was 'property ', and that it was also 'valuable security '. Therefore, he held that the charge, framed 195 under section 420 IPC., was correct. There were certain other objections, raised 'by the appellant, viz., that sanction had not been obtained, under section 196A, Cr. P.C., that where the offence itself was alleged to have been committed, in pursuance of the conspiracy, and was the subject matter of charge, no charge of conspiracy could still be maintained, and that the period of conspiracy had been artificially fixed, in the charge. These objections have also been overruled, by the Special Judge. The appellant carried the, matter, in revision, before the High Court of Bombay. The learned Judge, by his order, dated November 24, 1965, which is under attack, has confirmed the order of the Special Judge. Here again, the High Court has taken the view that the assessment order is 'property ' and it is also 'valuable security ', under section 30, IPC. The High Court is further of the view that the allegations, contained in the material charge, do prima facie disclose an offence, under section 420 IPC. Certain other objections, raised before the High Court, were also negatived. Mr. A. section R. Chari, learned counsel for the appellant, has again reiterated the same objections. Except for the question, relating to the charge framed under section 420 IPC., we make it clear that we are not expressing any opinion, regarding the other points, raised by Mr. Chari. If any other objections are available to the appellant, or any other accused, he or they, will be perfectly entitled to raise the same, during the course of the trial. The argument, regarding the invalidity of the charge, framed under section 420, runs as follows. The essential ingredient of an offence, under section 420 IPC., is that the person cheating, must thereby, dishonestly induce, the person deceived, to deliver any property, or to make the whole or any part of a valuable security. We are not referring to the other matters, contained in section 420 IPC. The issue or delivery of an order of assessment, by an Income tax Officer is not in consequence of the cheating, committed by a party, though it may be that the computation of income, as found in the assessment order, may be the result of cheating, practised by the accused. Therefore, the accused cannot be considered to have, by creating, dishonestly induced the Income tax Officer, to deliver the assessment order, because that is issued, to a party, as a matter of routine. The assessment order, cannot also be considered to be 'property ', within the meaning of section 420 IPC. It cannot also be stated, that the accused, by cheating have dishonestly induced the Income tax Officer to make a valuable security, because an assessment order, can, in no sense, be considered to be a valuable security. No legal right is created by an assessment order. The liability to payment of income tax is created by the charging section, section 3, of the Indian 196 Income tax Act, 1922, and the demand, for payment of tax is made, on the basis of a notice of demand, issued by the Income tax Officer, concerned. At the most, the accused will be guilty of ' cheating ', as defined under section 415, IPC, inasmuch as they may have intentionally induced the Income tax Officer, who is deceived, to do or omit to do, anything which he would not do, or omit. if he were not so deceived, and they will be liable for punishment, under section 417, IPC. Mr. G. L. Sanghi, learned counsel for the State, has supported the views, expressed by the High Court. We are not inclined to accept the contentions of Mr. Chari, that there is any error, or illegality, in framing a charge, under section 420 IPC. As to whether the prosecution is able to make out its case, or not, is a different point. We are only concerned, at this stage, to consider as to whether, under the circumstances, a charge, under section 420, could have been framed. It is well known, that, under the Indian Income tax Act, liability to pay income tax arises on the accrual of the income, and not from the computation, made by the taxing authorities, in the course of assessment proceedings, and that it arises, at a point of time, not later than the close of the year of account. It has also been laid down, by this Court, that assessments particularise the total income of an assessee and the amount of tax, payable. But it is not as if that the assessment order is valueless, as is sought to be made out. The question, that arises for consideration, in this case, is whether there is any 'delivery of property ', or, at any rate, whether the Income tax Officer has been induced 'to make a valuable security '. 'Movable property ' is defined, in section 22, IPC; 'Document ' and 'valuable security ' are defined in sections 29 and 30, IPC, respectively. Under the scheme of the Income tax Act, it is clear that the assessment order determines the total income of the assessee, and the tax payable, on the basis of such assessment. The assessment order has to be served, on the assessee. The tax is demanded, by the issue of a notice, under section 29; but the tax demanded, is on the basis of the assessment order, communicated to an assessee. The communicated order of assessment, received by an assessee, is in our opinion, 'property ', since it is of great importance, to an assessee, as containing a computation, of his total assessable income and, as a determination, of his tax liability. In our view, the word 'property ', occurring in section 420, IPC, does not necessarily mean that the thing, of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value, in the hand of the person cheated. Even if the thing has no money value, in the hand of the person cheated, but becomes 197 a thing of value, in the hand of the person, who may get possession of it, as a result of the cheating practised by him, it would still fall within the connotation of the term 'property ', in section 420, IPC. Once the assessment order is held to be 'property ', the question arises as to whether there is a 'delivery ', of the, same, to the assessee, 'by the Income tax Officer. It is argued that the order is communicated, in the usual course, and that irrespective of any ,cheating ', the officer is bound to serve the assessment order. This argument, though attractive, has no merit. Communication, or service of an assessment order, is part of the procedure of the assessment itself. But it can be held that, if the necessary allega tions are established, the accused have dishonestly induced the Income tax Officer, to deliver the particular property, viz., the assessment order, as passed by him, in and by which a considerably low amount has been determined, as the total income of the assessee, on the basis of which the amount of tax, has been fixed. Nor are we impressed with the contention, that the deception, if at all, is practised, not when the assessment order is delivered, but at the stage, when the computation, of the total income, is made, by the Income ,tax Officer. The process of 'cheating ', employed by an assessee, if successful, would have the result of dishonestly inducing the Income tax Officer to make a wrong assessment order and communicate the same to an assessee. An offence under section 420, IPC, will also be made out, if it is established that the accused have cheated and, thereby, dishonestly induced the Income tax Officer to make a 'valuable security '. This takes us to the question : "Is the assessment order. 'valuable security ' ?" We have already referred to section 30, IPC, defining, valuable security '. The assessment order is certainly a 'document ', under section 29, IPC. The order of assessment does create a right, in the assessee, in the sense that he has a right to pay tax only on the total amount assessed therein and his liability to pay tax is also restricted to that extent. Therefore an 'order of assessment ' is a 'valuable security ', under section 420, IPC. Therefore, if the cheating, employed by the accused, resulted in inducing the Income tax Officer to make a wrong assessment order, it would amount to inducing the Income tax Officer, to make a 'valuable security '. Considering the question, from either point of view, as indicated above, it follows that the framing of a charge, for an offence, tinder section 420 IPC., is correct. The appeal, accordingly, fails, and is dismissed. G.C. Appeal dismissed.

The appellant along with certain others was tried for the offence of entering into a conspiracy to cheat the income tax authorities in respect of the income tax assessment of a firm. The prosecution levelled against him a charge inter alia, of the offence under section 420 I.P.C. The appellant raised before the Special Judge an objection to the effect that the terms of section 420 I.P.C. were not satisfied inasmuch as (i) an assessment order was not 'property ', (ii) its communication to him was not 'delivery ', (iii) an assessment order was also not a 'valuable security '. The Special Judge and the High Court rejected these contentions. The appellant came to this Court by special leave. HELD : (i) Even if an assessment order is not 'property ' in the hands of the Income tax Officer, it is 'property ' in the hands of the assessee because it contains a computation of his assessable income and a determination of his tax liability. The word property occurring in section 420 I.P.C. does not necessarily mean that the. thing, of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value in the hands of the person cheated. [196 G 197 A] (ii) Communication or service of an assessment order is part of the procedure itself. But if the necessary allegations are established, the accused must be held to have dishonestly induced the Income tax Officer to 'deliver ' the particular property viz. the assessment order. Nor could the contention be accepted that the deception, if at all, is practised not when the assessment order is delivered, hut at the stage when the computation of the total income is made by Income tax Officer, for, the process of 'cheating ' employed by an assessee, if successful, would have the result of dishonestly inducing the Income tax Officer to make a wrong assessment order and communicate the same to an assessee. [197 C D] (iii) An order of assessment is a 'valuable security ' under section 420 [.P.C. because@ it creates a right in the assessee in the sense that he has right to pay tax only on the total amount assessed therein and his liability to pay tax is also restricted to that extent. [197 F G] On the above reasoning, framing of a charge for an offence under 420 I.P.C. is correct.

Appeal No. 1732 1966. Appeal from the Judgment and decree dated June 20, 1966 the Mysore High Court in Regular Appeal No. 97 at 1959. M. C. Chagla, P. N. Tiwari, J. B. Dadachanji, O.C . and Ravinder Narain for the appellant. A. K. Sen, section section Javali and M. Veerappa, for respondents 1 and 2. The Judgment of the Court was delivered by Mitter, J. One Rudrappa Murigoppa Gugwad died leaving a will dated February 2, 1919. It is claimed by the appeal that he also left a codicil dated August 10, 1919. After citing in clause 1 of the will that he had brought UP Lochanappa Gugwad, son of Irappa Sidlingappa Gugwad, and though he had wished to take the said Lochanappa in but had not been able to do so up till then 'and even if the adoption ceremony did not take place in the future, Lochanappa alone would be the owner of his properties he proceeded state in clause 2 of his will that : "Even though I have hereby transferred the ownership of my immovable and movable properties to Lochanappa Irappa Gugwad, Lochanappa should act under the supervision of 'the trustees, namely. Lingappa Sanganabassappa Tyapi and Gurulingappa Gan gappa Gugwad. it both the trustees find that my property will fall out of use on account of Lochanappa 's taking to bad ways, both the trustees should take possession of the property 'and safeguard it by appointing my extremely faithful clerks Veerabhadrappa Mallappa Suligavi and Basappa Murangappa 693 Tuppadd. If Lochanappa gets a male issue the, property should be in the possession of both the trustees till that son attains majority. " In clause 3 he laid down that "In case Lochanappa Irappa dies without leaving male issue, fully authorise, the said trustees to transfer the ownership of the movable and immovable property of my family to the son of Gurupadappa Gangappa Gugwad, resident of Bijapur, and to deliver the entire property into his possession." The original will was deposited with the Collector. After having executed the will the testator appeared to have proceeded to Benares and from there a dressed a letter to Lochanappa Irappa Gugwad on 10th August, 1919. By that he directed some money to be advanced to Gurubasappa Bassappa Gugwad to start him on a business and commended the welfare of the said Gurubasappa to the care of Lochanappa adding : "The main thing is that you should pay full attention to him. I have mentioned in the will that in case male children are not born to you, you should take in adoption in your own name any of the sons of Gurupadappa Gangappa Gugwad of Bijapur and that if you die without taking in adoption, they alone will be the owner of the movable and immovable properties. But two sons are born to him. As early as possible that is to say, when one boy becomes five years old or after my death you should execute this work of adoption and you should mention that the property should go to him after your death. " The last statement appears to be incorrect inasmuch as the testator had not by his will directed Lochanappa to make such an adoption. Probate of the will was duly taken into possession of all the properties left by the testator. According to the judgment of the High Court appealed from, the letter was not a formal document as a codicil should be, nor was it referred to in the probate proceedings. In the year 1935 Gangappa Gurupadappa Gugwad, the appellant herein, filed a suit in the court of the First Class Subordinate Judge at Bijapur against Lochanappa and the said two trustees for a declaration that Lochanappa had only a life interest in respect of the properties described in the schedule to the plaint as per the 694 will and codicil executed by the testator, that certain improvident transactions put through by Lochanappa in contravention of the directions given in the will were not binding on the plaintiff or the properties left by the der eased and that the s Lochanappa having acted contrary to the directions given in will and codicil and having mismanaged the said properties a injunction should be issued against the trustees directing to give Lochanappa only maintenance in terms of the will. The Subordinate Judge who heard the suit framed several issues of which the important ones were as follows (1) Whether the plaintiff is entitled to sue ? (2) Whether Lochanappa, defendant No. 1 got only a limited interest in the estate of the testator, Rudrappa Gugwad, under the will? (3) Whether acts of mismanagement by Lochanappa contrary to the directions of the will had been proved ? (4) Whether an injunction could be validly given to the trustees to take over the management from Lochanappa and give him only maintenance ?. Before the Subordinate Judge evidence both oral and documentary were let in. He construed the will to arrive at the finding that Lochanappa had been made the malik or owner of the pro parties covered by the will and that it was the will of the tesator which recited that the estate given to Lochanappa was be heritable. With regard to the further directions given in will, he came to the conclusion that "Lochanappa having bee made an owner under the will further expression of such intention cannot be properly allowed to control or qualify that ownership. " As regards the direction in the letter styled a codicil advising Lochanappa to take one of the sons of Gurupadappa Gangappa Gugwad in adoption, he held that: "In fact, there is no such direction in the original will. Even assuming that it is so, only means that Gurupaddappa 's sons are to be the owners in case Lochanappa dies without male issue and without adopting one of the sons of Gurupadappa; Lochanappa is still alive and it is yet to be seen whether he adopts plaintiff or not or whether a son will be born to him or not. Plaintiff has at the most a contingent right and vested interest, and therefore ' it is a question whether he is entitled, to a simple declaration. " The suit out of which this appeal arises was 'filed by Gang Gugwad after the death of Lochanappa in 1957 against 695 widow of Lochanappa, one Chanabasappa Gurubasappa Gugwad who was undisputedly taken in adoption by Lochanappa as his son in the year 1951 and Gurlingappa Gungappa Gugwad, the surviving trustee under the will of Rudrappa pleading inter alia that "Rudrappa did not confer an absolute estate on Lochanappa in respect of his property, that the bequest made in his favour conferred upon him only a restricted life estate and that even assuming Lochanappa was an absolute owner he was entitled to it only during his lifetime and after his demise it was to revert to the plaintiff by virtue of the will and codicil. " The plain,tiff appellant went on to add that it was incumbent on Lochanappa to adopt him alone and none else and any adoption in contravention of the direction in the will of, Rudrappa Murigappa Gugwad was invalid and even assuming that the said direction was not mandatory, defendant No. 2 could not acquire the status of a son begotten by Lochanappa so as to claim any interest in the property of the deceased testato. The suit was contested by the widow and the adopted son, defendant No. 2 who plead ed the bar of res judicata on the strength of the judgment in the suit of 1935. The Subordinate Judge held against the dependent on that issue. He also found that the appellant. was the rightful heir to the properties of the deceased testator under the will and codicil of Rudrappa after the death of Lochanappa. The High Court examined the will and the letter described as codicil over again and came to the conclusion that the letter described as codicil was only an informal communication from one relation to another, that the testator had only a vague recollection of the contents of the will at the time of writing the letter from Benaras and that the order in the probate proceedings did not refer to the letter. On the basis of the will the High Court held that Lochanappa was an absolute owner of the property. The High Court further held that the decree in the suit of 1935 operated as res judicata in the subsequent suit. Referring to the first two issues framed in suit of 1935 the High Court held that there was a clear finding in the judgment in that suit that the appellant had obtained no interest under the will of Rudrappa and therefore he was not entitled to sue. Before us learned counsel for the appellant contended that in spite of the observations made by the learned Subordinate Judge in the judgment in the suit of 1935 about Lochanappa 's rights under the will and the document styled as codicil, the. decision on the first issue went to show that the appellant 's suit was premature and as such it was not necessary for the Subordinate Judge to go into the other question and his findings on issues other than the first should be treated as obiter. 696 In support of the above contention counsel for the appellant relied on the decision of the Privy Council in Shankarlal vs Hiralal(1). The head note in that case to which our attention was drawn reading, "Court holding that suit is not maintainable by reason of failure to comply with section 80 Findings given on merits are obiter and do sot support plea of res judicata either in favour of or against party". seems to be misleading inasmuch as the judgment of the Board does not bear out the above proposition of law. At best the head note only records a finding by an appellate Bench of the ,Calcutta High Court which the Board by its own judgment did not expressly reject or uphold. The appeal to the Privy Council arose out of a suit filed by ,one Mangtulal Bagaria for royalties due under a lease of collieries by one Popat Velji Rajdeo of which the said Mangtulal was appointed manager by the court. The defendants were the lessees under the lease or their representatives and were respondents in the appeal to the Board. There the defence of the lessees was that the lease had been surrendered in July 1933. The plaintiffs challenged the surrender and also pleaded that the point was covered by res judicata. Ameer Ali, J., before whom the suit came on for hearing on the original side of the Calcutta High Court framed several issues, in two groups. The first issue in Group A related to a plea of res judicate. The second issue in that group raised a question whether there was any defence apart from surrender. Group B raised questions as to the fact and validity of the alleged surrender. The plea of res judicata was based on a judgment of the Subordinate Judge of Dhanbad wherein the lessees had sued Mangtulal and some others for a declaration that the lease had been validly surrendered in 1933. The Subordinate Judge held that the suit did not lie inasmuch as notice had not been served on Mangtulal under section 80 Civil Procedure Code. He however supported to decide other issues in the suit including one as to the sufficiency of the surrender. An appeal from the decree of the Subordinate Judge was taken to the High Court at Patna but was withdrawn against Mangtulal and the brother of the lessor and a consent decree, was obtained against the two widows upholding the surrender. Ameer Ali, J. went into the question of res judicata as ' a preliminary issue and "pressed the view: (1) A.I.R. 1950 P. 30. 697 .lm15 "that the decision of the Dhanbad Court had decided the same issue which had to be decided in his own court and between the same persons and parties. " In appeal from his judgment the learned " 'Judges held that Inasmuch as the Subordinate Judge in the Dhanbad suit had held that the suit did not lie by reason of the failure to comply with section 30, Civil P.C., he was bound to dismiss the suit under Or. 7 R. 1 1 of the Code and the findings of the Court on the merits were obiter and could not support a plea of res judicata. " They held further that Ameer Ali, J. had decided nothing but the issue of res judicata. Accordingly. they allowed the appeal and remanded the case to the court of first instance for trial of issues other than issue 1. The judgment of the Judicial Committee shows that before the Board it was conceded on behalf of the appellant that the appellate court was right in the view which it took as to the effect of the Dhanbad decree. The Board proceeded to observe "Their Lordships have no doubt that the decision in the Dhanbad suit could not support a plea of res judicata on the merits, either in favour of or against Mangtulal. " The Board rejected the contention of the appellant that Ameer Ali, J. had decided not only the issue of res judicata but also that the alleged surrender of the lease was invalid. According to the Board the judgment of Ameer Ali, J. was to some extent obscure and there were passages in it which suggested that he thought the surrender invalid but "it was clear that he did not purport to decide anything beyond the issue of res judicata" and he expressly stated that h. , was not deciding the issues in the second group. Accordingly the Board saw no reason to differ from the view of the appellate Judges that the issues as to surrender were not decided by the trial Judge and did not feel inclined to interfere with the direction given by the 'appellate court regarding the remand of the trial of the issues in the court of first instance. On the strength of the dictum of the appellate Bench of the Calcutta High Court forming a part of the headnote to the above decision it was contended before us, that once the Subordinate Judge of Bijapur recorded a finding on the first issue against the appellant in the suit of 1935 his construction (if the will and the effect thereof were obiter and they would not be binding on the appellant in the second suit. This was sought to be fortified by the observations in the concluding portion of 698 the judgment in the suit of 1935 which we have quoted above that the plaintiff had at the most a contingent right and no vested interest. It was.argued that the learned Subordinate Judge 's view that the suit was premature was sufficient to dispose of the case before him without his going into the other questions and the issues raised. No doubt it would be open to a court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If for instance the plaintiff 's cause of action is against a Government and the plaint does not show that notice under section 80 of the Code of Civil Procedure claiming relief was served in terms of the said section,, it would be the duty of the court to reject the plaint recording an order to that effect with reason for the order. In such a case the court should not embark upon a trial of all the issues involved and such rejection. would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by section 80 of the Code is being claimed, it would be the duty of the court to go into all the issues which may arise on the pleadings including the question as to whether notice under section 80 was necessary. If the court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of section 80 of the Code and absence of notice thereunder should not operate. as, res judicate in a subsequent suit where the identical questions arise for determination between same parties. In our view the High Court was right in deciding the issue as to res indicate against the appellant. The High Court rightly pointed out that the Subordinate Judge had in clear terms decided that the appellant had obtained no interest under the will of Rudrappa and therefore he was not entitled to sue. The Subordinate Judge had further held that the estate obtained by Lochanappa under the will was an absolute estate. With respect, we concur with the view expressed by the High Court. There was no question of the trial of any preliminary issue in the suit of 1935 the decision of which would obviate the necessity of examining the other pleas raised and coming to a finding thereon. The nature of the right acquired by Lochanappa under the will of the testator was directly in question and the Subordinate Judge went elaborately into it to take the view that Lochanappa had become absolutely entitled to the,properties left by the testator. The observation referred to in the concluding portion of the judgment of the Subordinate Judge is not to be taken 699 as the decision on a preliminary issue so as to render the findingon the other issues mere obiter or surplusage. In our view the High Court rightly relied on the observations of this Court in Vithal Yeshwant father vs Shikandarkhan Makhtum khan Sardesai(1) that if the final decision in any matter at issue between the parties is based by a court on its decisions on. more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties. The question as to the nature of the estate taken by Lochanappa under the will and the document called codicil to the will of the testator, Rudrappa having been in issue in the suit of 1935 and it having been decided that Lochanappa had obtained an absolute estate to the property,, the decision would bind the appellant in any subsequent litigation to which the claim is, based on the will and codicil. We accordingly dismiss the appeal on the ground that the decision in the t of 1935 was a bar to the trial of the second suit of 1957. The respondent will be entitled to costs throughout. G.C. Appeal dismissed. (1) ; at 290.

R wanted to adopt L as his son but did not actually do so. In accordance with R 's will executed in 1919 L inherited R 's property after his death. In 1935 the appellant herein instituted a suit against L and the trustees appointed under R 's will. It was the appellant 's claim that the will was supplemented by a codicil (this referred to a letter written by R to L some time after the execution of the will). Under these documents, according to him, L inherited only a life estate. He alleged that L was mismanaging the property and prayed for an injunction directing the trustees to take over management of the properties. The Subordinate Judge framed four issues to the affect (1) whether the appellant was entitled to sue, (2) whether L inherited only a life interest, (3) whether L had mismanaged the property and (4) whether an injunction as prayed should be issued to the trustees. The Subordinate Judge held that L had inherited not a life Mate but full ownership, and that the appellant had only a contingent right in the property depending on L dying without male issue, so that it was not possible to grant to the appellant the declaration he prayed for. L adopted a son C in 1951, and died in 1957. After his death the appellant filed another suit against L 's widow, C the adopted son and the surviving trustee. This suit was also based on the claim that L had inherited only a life estate under R 's will and codicil. The contesting defendants raised the plea of res judicata based on the decision in the suit of 1935. The plea of res judicata was rejected by the trial court but accepted by the High Court. In appeal before this Court it was urged on behalf of the appellant that the trial court in the suit of 1935 having held the suit to be premature and thus decided the preliminary issuability the appellant, its decision on the other issues was only obiter and could not operate as res judicata. HELD: The appeal must fail. There was no question of the trial of any preliminary issue in the suit of 1935 the decision of which would obviate the necessity of examining the other pleas raised and coming to a finding thereon. The nature of the right acquired by L under the will of the testator was directly in question and the subordinate judge went elaborately into it to take the view that L had become absolutely entitled to the properties left by the ,testator. The observation referred to in the concluding portion of the Judgment of the Subordinate Judge is not to be taken as the decision on a preliminary issue so as to render the finding on the other issues mere obiter and surplusage. L698 G 699 Al If the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point eacb of which by itself 6 92 would be sufficient for the ultimate decision the decision one these points would operate as resjudica between the parties. question as to the nature of the estate taken by L under the will and document called codicil to the will of the testator having been in is in the suit of 1935 and the Court having been decided that L had obta an absolute estate to the property, this decision would bind the up in any subsequent litigation such as the present, in which the claim based on the will and cod cil. [699 B C] Shankarlal vs Hiralal, A.I.R. 1950 P.C. 80, explained and distinguished Vithal Yeshwant Jathar vs Shikandarkharn Mukhtum khan (19631 2 S.C.R. 285, 290, applied.

Special Leave Petition (Civil) Nos. 4973/89 and 12763/89. From the Judgment and Order dated 31.1.1989 of the Kerala High Court in O.P. No. 3218/88 and dated 25.3.82 of the Income Tax Appellate Tribunal, Cochin in I.T.A. No. 302/Coch/1977 78. K.K. Venugopal and K.R. Nambiar for the Petitioner. Soli J. Sorabjee, Attorney General, section Ganesh and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. This is a petition under arti cle 136 of the Constitution for leave to appeal against the orders of the tribunal and the High Court. The High Court vide its order dated 31st January, 1989 had dismissed the application for reference. There is also an order of the tribunal refusing to make a reference under section 256(1) of the Income Tax Act, 1961 (hereinafter called 'the Act '). This petition also seeks leave to appeal directly from the said order of the tribunal. 7 However, in order to appreciate the controversy in this case the facts reiterated by the High court of Kerala in its said judgment and order are important, it had observed as follows: "For the assessment year 1969 70 the petitioner filed a return declaring a total income of Rs.9,571. In completing the assessment the assessing authority proceeded on the basis that the assessee was the owner of the gold seized on 9.11.68 and confiscated by the Customs authorities worth Rs.20 lakhs and accordingly the Income tax Officer treated the sum of Rs.20 lakhs as income from undisclosed source applying the provisions of Section 69 A of the Income tax Act, 1961. On appeal, the Appellate Assistant Commissioner held that the assessee was not the owner of the contraband gold seized by the Central Excise Authority and therefore reduced the assessee 's total income by Rs.20 lakhs. The Revenue filed a second appeal before the Appellate Tribunal, Cochin Bench. After going through the evidence the Tribunal came to the conclusion that the car belonged to the assessee and the special places of concealment had been provided by design in the car. Further the assessee himself was driving the car in which the gold was found. The assessee also has not attributed the ownership to anybody else. The assesee also has not established that the gold was given to him by any third party. In view of all these, the addition of Rs.20 lakhs made by the Incometax Officer but deleted by the Appellate Asstt. Commissioner was restored. The additional ground raised by the Revenue that the appeal is not main tainable before the Appellate Asstt. Commissioner was re jected. The assessee thereafter filed a Miscellaneous Peti tion for rectification of the order of the Tribunal. The rectification sought to be made are : (1) Business loss to the tune of Rs.20,00,000 incurred by the assessee due to investment in gold and the confiscation of the gold by the Customs authorities be allowed for the assessment year 1969 70, in view of the decision of the Supreme Court in CIT vs Piara Singh, decided on 8 5 1980 and reported in , (2) the income tax and special surcharge amounting to Rs. 16, 19,395, Rs.20,00,000 and 8 (3) as the tax has already been collected from the amount of Rs. 20,00,000 no interest was payable. " The High Court noted that the tribunal could not accede to the requests of the petitioner as these could not be considered as mistakes apparent from records. The points had not been raised by way of cross appeal or cross objections. Thereafter, the assessee filed a petition u/s 256 of the Act seeking reference of the following questions of law: "1. Whether the Tribunal is right in law in its view that the right to file an application under Section 254(2) of the Income tax Act, 1961 is open to be exercised only by the applicant and not by the respondent in the appeal before it? 2. Whether the Tribunal is right in law in rejecting the application under Section 254(2) on the ground that the applicant was not the appellant before it and that he had also not filed any memo of Cross objections in the appeal against him? 3. Whether on the facts and in the circumstances of the case the assessee was bound to raise before the Tribunal, at the stage when he was only supporting the order appealed against him, of his case for deduction which he was legally entitled to claim in case of allowance of the appeal against him? 4. Whether on facts and circumstances of the case the Tribu nal was right in law in holding that the claim of loss on account of confiscation of the gold was not the subject matter of the appeal?" The tribunal dismissed the petition holding that none of the questions sought to be raised was decided by the tribu nal and as such did not arise out of the order of the tribu nal. Aggrieved by these two orders, one being refusal by the tribunal to refer the question as aforesaid u/s 256(1) and the other of the High Court directing the tribunal to refer the questions and state the case to the High Court, the petitioner has come up to this Court. We find that it can legitimately be argued in the facts and the circumstances of the case that the question which essentially arose, which had to be borne in mind and which 9 was argued before the tribunal was, whether the sum of Rs.20 lakhs could be subject to taxation in the context as found by the tribunal as the income of the assessee. The asses see 's further contention was that in view of the decision of this Court in C.I.T. Patiala vs Piara Singh, even if Rs.20 lakhs could be treated as the income of the asses see inasmuch as this has been ordered to be confiscated, there was a business loss as held in the said decision of this Court. Therefore, this question should have been gone into which was sought to be raised by a MiscellaneOus Appli cation before the tribunal after disposal of the appeal by the tribunal. The principle by which this should be determined has been fairly laid down by this Court in C.I.T., Bombay vs Scindia Steam Navigation Co. Ltd.; , wherein this Court at page 612 had observed as follows: "Section 56(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 complex one, trenching 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 court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further 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 itself a distinct question for the purpose of section 66(1) of the Act. That was the view taken by this Court in Commissioner of Income tax vs Ogale Glass Works Ltd., and in Zoraster & Co. vs Commissioner of Income tax, , and we agree with it. As the question on which the parties were at issue, which was referred to the court under section 66(1), and decided by it under section 66(5) is whether the sum of Rs.9,26,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it. 10 It is argued for the appellant that this view would have the effect of doing away with limitations which the Legislature has advisedly imposed on the right of a litigant to require references under section 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised. It is no doubt true ' that sometimes the questions are framed in such general terms that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connec tion, it is necessary to emphasise that, in flaming ques tions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those conten tions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be ad vanced, provided it is within the framework of the question as referred." Mr. Venugopal, appearing for the petitioner, drew our attention to the observations of Justice Shah, as the learned Chief Justice then was, at p. 617 which are to the following effect: "The source of the question must be the order of the Tribu nal; but of the question it is not predicated that the Tribunal must have been asked to decide it at the hearing of the appeal. It may very well happen and frequently cases arise in which the question of law arises for the first time out of the order of the Tribunal. The Tribunal may wrongly apply the law, may call in aid a statutory provision which has no application, may even misconceive the question to be decided, or ignore a statutory provision which expressly applies to the facts found. These are only illustrative case: analogous cases may easily be multiplied. It would indeed be perpetrating gross injustice in such cases to restrict the assessee or the Commissioner to the questions which have been raised and argued before the Tribunal and to refuse to take cognisance of question which arise out of the order of the Tribunal, but which were not argued, because they could not (in the absence of any indication as to what the 11 Tribunal was going to decide be argued." As mentioned hereinbefore, this is an application for leave to appeal from the decisions of the tribunal and the High Court under Article 136 of the Constitution. The real and substantial question posed and canvassed before the tribunal in its appellate order and in the appeal, as is manifest from the facts stated before, was, whether a sum of Rs.20 lakhs could in the facts and the circumstances be considered as part of the income of the assessee and as such suffer taxation. Now the question sought to be raised is, whether in view of the decision of this Court in Piara Singh 's case (supra) the amount of Rs.20 lakhs could be treated as legitimate business loss of the assessee. It is possible to take the view that this is substan tially a different question, namely, whether an amount is a business loss even assuming that it was the income. It is possible and conceivable to consider two different ques tions, namely, whether a certain sum of money is the income of the assessee, and secondly, whether even assuming that such was the income, was that income liable to be deducted in view of the provisions of the Act. It is possible to take the view that these are substantially different questions and not merely different aspects of the same question. Considerations which go into determination of whether an amount should be treated as income and the considerations which are relevant to determine whether even assuming that, that was the income the amount was deductible, are differ ent. The question in this form was not canvassed before the tribunal at any point of time in the alternative. It may be reiterated that the Central Excise Officers at Valayar check post seized gold weighing 16,000 gms. from Car No. MYX 9432, which was being driven by the petitioner along with the documents and took the petitioner into custody. The Collector of Central Excise, Madras had confiscated the gold in question and found that the petitioner was in possession of the gold. The assessment of the petitioner for the year in question was originally completed at a total income of Rs. 1,571. Subsequent to the completion of the original assessment, the petitioner filed a return declaring a total income of Rs.9,57 1. The Income Tax Officer issued notice under section 148 of the Act. The Tribunal ultimately had accepted the revenue 's contention, restored the addition of Rs.20 lakhs made by the assessing authority, inter alia, holding that the onus was on the petitioner to prove that the 12 gold was not owned by him which onus the petitioner had failed to discharge. The Tribunal had gone into and adjudi cated the question substantially raised by the petitioner that the confiscated gold could not be treated as the income of the petitioner. The Tribunal rejected the application of the petitioner on the ground that the claim of loss on account of the confiscation of the gold was not the subject matter of the appeal. The principles of law have been discussed by this Court in Scindia Steam Navigation Co. Ltd 's case (supra). In the facts and the circumstances of the case, the Tribunal and the High Courts have taken the view that wheth er certain sum of money can be treated as the income of an assessee and whether that sum of money could be deducted as loss are different question of law and not different aspects of the same question. The Tribunal and the High Court have taken a particular view. They have borne in mind the correct principles that are applicable in the light of the law laid down by this Court in Scindia Steam Navigation 's case (supra). In the background of the facts and the circumstances of the case, as mentioned hereinbefore, if the aforesaid view of the Tribunal and the High Courts is a possible view, we are not inclined to interfere with that view under Article 136 of the Constitution in the light of the facts and the circumstances of this case. We are not prepared to say that injustice has been done to the petitioner. The view taken by the Tribunal and the High Courts is a possible view. The Tribunal and the High Courts have borne in mind the princi ples of law laid down by this Court. In the aforesaid view of the matter, ' in the facts and the circumstances of the case, this application is rejected and accordingly dismissed. R.N.J. Petition dismissed.

On November 11, 1968 the Petitioner was apprehended carrying contraband gold in a Maruti Car driven by him. He was taken into custody and the seized gold was confiscated. For the assessment year 1960 70 the Petitioner had filed a return declaring total income of Rs.9,571. In finalising the assessment the Income Tax Officer added Rs.20 Lakhs being the price of the confiscated gold as income from undisclosed source. The Petitioner went in appeal before the Appellate Assistant Commissioner who reduced the income by that amount holding that the assessee was not the owner of the confis cated gold. On second appeal by the revenue the Tribunal restored the order of the I.T.O. The Petitioner then moved a Misc. Application under section 254(1) for amendment for treating Rs.20 Lakhs as business loss which was rejected by the Tribunal. The Petitioner then moved a Petition u/s 256(1) of the Income Tax Act seeking reference to the High Court raising certain questions, which was turned down by the Tribunal holding that none of the questions sought to be raised was decided by the Tribunal and ' as such did not arise from its order. The High Court also declined the application to direct the Tribunal to refer the questions and to state the case to it. Hence this special leave petition directed against both the order of the Tribunal as well as the High Court. Dis missing the Special Leave Petition, the Court, HELD: The real and substantial question posed and can vassed before the Tribunal in its appellate order and in the appeal was whether the sum of Rs.20 Lakhs be considered as part of the income of the 6 assessee and as such suffer taxation. The question sought to be raised is whether in view of the decision of the Court in Piara Singh 's case this amount could be treated as legiti mate business loss of the assessee. It is possible to take the view that this is substantially a different question, family whether an amount is a business loss even assuming that it was he income. It is possible and conceivable to consider two different questions, namely whether a certain sum of money is the income of the assessee and secondly, whether even assuming that such was the income, was that income liable to be deducted in view of the provisions of the Act. Considerations which go into determination whether an amount should be treated as income and considerations which are relevant to determine whether even assuming that, that was the income the amount was deductible, are differ ent. The question in this form was not canvassed before the Tribunal. The view taken by the Tribunal and the High Court is a possible view and they have borne in mind the princi ples of law laid down by the Court in Scindia Steam Naviga tion 's case. [1 lB E; 12E] C.I.T., Patiala vs Piara Singh, 2 and C.I.T., Bombay Scindia Steam Navigation Co. Ltd., , referred to.

No. 13347 of 1983. (Under Article 32 of the Constitution of India). K.K. Venugopal, C.S. Vaidyanathan and K.V. Viswana than for the Petitioner. P.K. Goswami,Additional Solicitor General, P.S. Poti, K. Parasaran, S.S. Javalai, and F.S. Nariman, B.V. Acharya, Advocate General, P.R. Ramasesh, Ms. A. Subhashini, T.T. Kunhikanan, V. Krishnamurthy, K. Ramkumar and R. Karuppan, in person the Respondents. 86 The Judgment of the Court was delivered by RANGANATH MISRA, J. This is an application under Article 32 of the Constitution filed by the Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam which is said to be a society registered under the Tamil Nadu Societies Registration Act asking this Court for direction to the Union of India, respondent No. 1, to refer the dispute relating to the water utilisation of the Cauvery river and equitable distribution thereof in terms of section 4 of the , and for a mandamus to the State of Karnataka not to proceed with the construction of dams, projects and reservoirs across the said river and/or on any of its tributaries within the State and to restore supply of water to the State of Tamil Nadu as envisaged in the agreements dated 18th of February, 1924. To the petition States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Pondicherry have been added as re spondents 2 to 5 respectively. In the petition it has been alleged that the petition er 's society is an organisation of agriculturists of Tamil Nadu and they are entitled to the lower reparian rights of Cauvery river for cultivating their lands over the years. The petitioner alleges that inflow into the Cauvery at the Mettur dam point as also down the stream has considerably diminished due to construction of new dams, projects and reservoirs across river Cauvery and its tributaries by the State of Karnataka within its own boundaries. In the year 1970 the State of Tamil Nadu had requested the Union of India to set up a tribunal and refer the question of equita ble distribution of Cauvery waters under section 3 of the Act. A suit filed under Article 131 of the Constitution by the Tamil Nadu State in this Court was withdrawn on politi cal consideration and in anticipation of the evolving of a mutual and negotiated settlement. Petitions of the present type had also been filed in this Court being writ petitions Nos. 303 and 304 of 1971 but on 24.7.75 they were withdrawn on account of suspension of the Fundamental Rights during the period of Emergency. Petitioner has further alleged that the sharing of the Cauvery waters between the then Madras State and the then princely State of Mysore was covered by a set of agreements reached in 1892 and 1924. According to the petitioner several attempts were made through bilateral and multilateral talks for a negotiated settlement for equitable distribution of the Cauvery waters but no solution could be reached and the problem continued. Since we are not on the merits of the matter relating to distribution of waters it is unnecessary to give any details of the further pleadings. 87 The State of Karnataka by filing several affidavits has opposed the maintainability of the petition as also the tenability of the plea for relief. The Union of India in the Ministry of Water Resources has also opposed the maintain ability of the application. Reliance has been placed on section 11 of the Act to which we shall presently made a reference. At the hearing, Mr. Nariman on behalf of the State of Karnataka along with the Advocate General of the State and the Solicitor General appearing for the Union of India have reiterated the aforesaid stands. The State of Tamil Nadu filed an affidavit in this Court on 6th of May, 1987, wherein it not only supported the contention of the petitioner but effectively joined the dispute by adopting the stand of the petitioner. The State of Kerala has left the matter to the good sense of Union of India to bring about an amicable settlement. At the hearing of the matter the Union Territory of Pondicherry was not represented though we were told that their stand was common with that of the State of Tamil Nadu. This petition was filed on November 18, 1983; on 12.12.83 this Court directed issue of notice and as already pointed out the State of Tamil Nadu by its affidavit of 6th of May, 1987, came to the support the petitioner in toto. The adoption by the State of Tamil Nadu of the petitioner 's stand by associating itself with the petitioner is perhaps total. Before this Court, societies like the petitioner as also the State of Tamil Nadu and earlier applied for the same relief as the petitioner seeks. In view of the fact that the State of Tamil Nadu has now supported the petitioner entirely and without any reservation and the Court has kept the matter before it for about 7 years, now to throw out the petition at this stage by accepting the objection raised on behalf of the State of Karnataka that a petition of a society like the petitioner for the relief indicated is not maintainable would be ignoring the actual state of affairs, would be too technical an approach and in our view would be wholly unfair and unjust. Accordingly, we treat this petition as one in which the State of Tamil Nadu is indeed the petitioner though we have not made a formal order of transposition in the absence of a specific request. The main stream of river Cauvery has its origin in the hills of Coorg. Some tributaries have their origin in the State of Kerala while some having their origin in Karnataka have joined the river. The 88 river flows for a distance of about 300 Kms. within the State of Karnataka and almost an equal span within the State of Tamil Nadu before it ultimately joins the Bay of Bengal. It has not been disputed that Cauvery is an inter State. river within the meaning of Article 262 of the Constitution. Entry 56 of List I of the Seventh Schedule to the Constitu tion runs thus: "56. Regulation and development of inter State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. " Article 262 provides: "Adjudication of disputes relating to waters of inter State rivers or river valleys (1) Parliament may by law provide for the adjudication of any dispute or complaint with re spect to the use, distribution or control of the waters of, or in, any inter State river or, river valley. (2) Notwithstanding anything in this Constitution, Parlia ment may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). " It is not disputed before us that the (33 of 1956) is a legislation within the meaning of this Article. Section 3 of the Act provides: "3. If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitance there of, in the waters of an inter State river or river valley have 1Seen, or are likely to be, affected prejudicially by (a). . . . (b). . . . (c). . . . 89 the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a tribunal for adjudication. " Section 11 of the Act provides: "11. Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act. It is thus clear that section 11 of the Act bars the juris diction of all courts including this Court to entertain adjudication of disputes which are referable to a tribunal under section 3 of the Act. Therefore, this Court has no juris diction to enter upon the factual aspects raised in the writ petition. No serious dispute, however, has been raised before us challenging our jurisdiction to consider the claim in the writ petition confined to the question of a reference of the dispute to a tribunal within the meaning of section 3 of the Act. Section 4 of the Act provides: "4. (1) When any request under section 3 is received from any State Government in respect of any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the Central Government shall, by notification in the official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute. (2). . . . (3). . . . Undoubtedly section 4 while vesting power in the Central Government for setting up a Tribunal has made it conditional upon the forming of the requisite opinion by the Central Government. The dispute in question is one over which the people and the State of Tamil Nadu have been clamouring for more than 20 years now. The matter has been pending in this Court for more than 6 1/2 years. It is on record that during this period as many as 26 sittings spread over many years have been held in which the Chief Ministers of the Karnataka and Tamil Nadu have unsuccessfully tried to bring about settlement; some of 90 these have been at the instance of the Central Government in which the Union Minister for Water Resources and others have participated. There was a time, after the dispute arose, when the Governments in the States of Karnataka and Tamil Nadu as also at the Centre were run by one common political party. Perhaps if the Centre had intervened in an effective way during that period there was considerable chance of settle ment by negotiation. No serious attempt seems to have been made at that time to have the dispute resolved and it has been shelved and allowed to catch up momentum and give rise to issues of sensitivity. This case after a number of ad journments freely granted by this Court in view of the nature of the subject matter, was called on 26.2.1990 when the following order was made: "The writ petition is adjourned to 24.4.1990 for final hearing and is to be listed at the top of the board. No further adjournment shall be granted. The Advocate Generals of the States of Karnataka and Tamil Nadu are present in Court. Learned Solicitor General is also present. Counsel in W.P. No. 13347/83 in sists that the matter should not be further adjourned as several adjournments on the same plea of reconciliation between the two States have not borne any fruit. Learned Solicitor General has told us that in course of the month of March, the Chief Ministers of the two States shall meet. He has also told that in the month of February a meeting of Chief Ministers of Kerala, Karnataka, Tamil Nadu and Pondi cherry had been called but that could not be held on account of the air crash at Bangalore. In these circumstances, leaving the parties to negotiate, we have decided that the matter shall now be heard on merits in the event no settle ment takes place by then. " A long adjournment of about two months was then granted to provide a further opportunity of negotiation. We have now been told that the two Chief Ministers met on the 19th of April, 1990, and a further meeting was stipulated to be held on the following day when the Minister of Water Resources of the Central ' Government was also to participate. The meeting of the two Chief Ministers failed to bring about any result and the meeting stipulated for the following day for some reason or the other did not take place. When we heard the matter on the 24th of April, 1990, the counsel for the State of Tamil 91 Nadu in clearest terms indicated that the Chief Minister of the State was not further prepared to join the negotiating table. An affidavit along with the telex message received from Madras supporting its stand has now been made a part of the record. 26 attempts within a period of four to five years and several more adjournments by this Court to accommodate these attempts for negotiation were certainly sufficient opportu nity and time to these two States at the behest of the Centre or otherwise to negotiate the settlement. Since these attempts have failed, it would be reasonable undoubtedly to hold that the dispute cannot be settled by negotiations. Yet, since the requisite opinion to be formed is of the Central Government as required by s 4 of the Act when we reserved judgment on the 24th of April, 1990, we allowed two days ' time to the learned Additional Solicitor General for the Central Government to report to the Court the reaction of the Central Government. Mr. Goswami, learned Additional Solicitor General appearing for the Union of India informed us on the 26th April, 1990, in the presence of the counsel for the other parties that the Central Government did not want to undertake any further negotiation and left the matter for disposal by the Court. In these circumstances, we have no option but to conclude that a clear picture has emerged that settlement by negotiation cannot be arrived at and taking the developments in the matter as indicated above it must be held that the Central Government is also of that opinion particularly when the Chief Minister of Tamil Nadu has indicated that he is no more prepared to loin the nego tiations. We are cognizant of the fact that the matter is a very sensitive one. Judicial notice can be taken of the fact that the Government at the Centre is by one political party while the respective Governments in the two States are run by different political parties. The dispute involved is, howev er, one which affects the southern States of Kerala, Karna taka and Tamil Nadu and the Union Territory of Pondicherry. The disputes of this nature have the potentiality of creat ing avoidable feelings of bitterness among _the peoples of the States concerned. The longer the disputes linger, more the bitterness. The Central Government as the guardian of the interests of the people in all the States must, there fore, on all such occasions take prompt steps to set the Constitutional machinery in motion. Fortunately, the Parlia ment has by enacting the law vested the Central Government with the power to resolve such disputes effectively by referring the matter to an impartial Tribunal. There was no reason, therefore, for the dispute to protract for such a long time. Any further delay in taking the statutorily 92 mandate action is bound to exasperate the feelings further and lead to more bitterness. It is, therefore, necessary that the legal machinery provided by the statute is set in motion before the dispute escalates. A stitch in time saves nine. What is true for an individual is perhaps more true for the nation. Section 4 indicates that on the basis of the request referred to in section 3 of the Act, if Central Government is of the opinion that the water dispute cannot be settled by negotiation, it is mandatory for the ' Central Government to constitute a Tribunal for adjudication of the dispute. We were shown the Bill where in section 4 the word 'may ' was used. Parliament, however, substituted that word by 'shall ' in the Act. Once we come to the conclusion that a stage has reached when the Central Government must be held to be of the opin ion that the water dispute can no longer be settled by negotiation, it thus becomes its obligation to constitute a Tribunal and refer the dispute to it as stipulated under section 4 of the Act. We therefore, direct the Central Government to fulfil its statutory obligation and notify in the official gazette the constitution of an appropriate tribunal for the adjudication of the water dispute referred to in earlier part of this judgment. We further direct that the same should be done within a period of one month from today. The writ petition is accordingly allowed. There shall, however, be no order as to costs. S.B. Petition allowed.

The appellants are the tenants and the respondents are the landholders in respect of the tenanted agricultural lands of the hitherto inam estates. After the coming into force of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948. the inam estates were abolished, the land stood vested in the Government free of all encumbrances, and the pre existing rights, title and interest of erstwhile landholders ceased except to claim ryotwari patta. The respondents landholders claimed that the lands, in question, were either under their personal cultivation or they intended to resume those for private cultivation, and as such those were their private lands and they were enti tled to ryotwari pattas. The appellants tenants on the contrary claimed that those lands were neither under the personal cultivation of the landholders nor the landlords intended to resume those for personal cultivation, but were in possession of the tenants who were entitled to ryotwari pattas after the abolition of the estates. The Settlement Officer, after making inquiry under section 15 of the Estates Abolition Act, held that the landholders failed to establish that they were personally cultivating the lands or that they intended to resume the lands for personal cultivation, and as such rejected their claims. The landholders ' appeals to the Estates Abolition Tribu nal were allowed. The Tribunal held that the landholders were entitled to the grant of ryotwari pattas as the lands were private lands within the meaning of section 3 (10)(b)(i) of the Andhra Pradesh (Andhra Area) Estates Land Act, 1908 and that the tenants were not entitled to ryotwari pattas in respect of the same. 394 The appellants tenants moved writ petitions before the High Court. The learned Single Judge observed that it was common ground before the Subordinate Tribunal, as well as before him, that the nature of the lands at the inception, whether ryoti or private, was not known; that the burden of establishing that the lands were private lands was on the landholders; and that it was also common ground before him that apart from the fact that there were occasional changes of tenants, and the lands were sometimes leased under short term leases, there were no other circumstances indi cating that the landholders intended to resume cultivation of the lands. The learned Single Judge held that after the pronouncement of this Court in Chidambaram Chettiar vs Santhanaramaswamy Odayar, the decision of the Full Bench of the Madras High Court in Periannan vs Amman Kovil, AIR 1952 Mad. 323 (F.B.) could no longer be considered good law, and further that the decision in Jag deesam Pillai vs Kuppammal, ILR and in Perish Priest of Narayar vs Thingaraja Swami Devasthanam, App. 176 178 and 493 of 1946, once more held the field. It was also observed that since in all the cases the only mode of proof attempted by the landholders was the grant of short term leases and change of tenants and rent, it must be held that the lands were not established to be private lands and that no attempt was made to prove personal cultivation or any intention to resume personal cultivation. The Division Bench, in writ appeals filed by the land holders, held that, in the first place, the observations of this Court in Chidambaram 's case were in accord with the rule in Periannan 's case, and secondly, even if some of the dicta in the judgment of this Court in Chidambaram suggested a contrary principle, the effect of the entire observations did not support the contention that Periannan 's case had been impliedly overruled by this Court. Before this Court, it was inter alia contended on behalf of the appellants tenants (i) that the learned Single Judge having found as fact that the landholders had failed to establish that the lands were their private lands as these were neither under their personal cultivation nor they were intended to be resumed for personal cultivation, and applying the rule in Chidambaram 's case, the learned Single Judge having held that the lands were not private lands, the Division Bench erred in holding to the contrary; (ii) that the learned Single Judge correctly held that Perriannan 's case was no longer good law as in Chidambaram Chettiar vs Santhanaramaswamy Odayar, it was held that the definition of private land in section 3(10) of the Estate Land Act of 1908 read as a whole indicated clearly that the ordinary test for private land was the 395 test of retention by the landholder for his own personal use and cultivation by him or under his personal supervision, though they might be let on short leases; (iii) that it was not the intention or the scheme of the Act to treat as private those lands with reference to which the only pecul iarity was the fact that the landholder owned both the varams in the land and had been letting them out on short leases; and (iv) that the Division Bench erred in holding that Periannan 's tests were still applicable. On the other hand, it was contended that the correct tests for determining what was private land had been laid down in Periannan 's case, which were not different from those of Chidambaram 's case, and the Division Bench correct ly applied those tests to find that the lands were private lands of the landholders. Allowing the appeals, setting aside the judgment of the Division Bench, and restoring that of the learned Single Judge, this Court, HELD: (1) To find out whether a village was designated as inam village or not, prima facie the revenue accounts of the Government which were there at the time of the Inam Abolition Act came into force had to be looked into. If it was so shown, no further proof was necessary. Only when the entries in the revenue accounts were ambiguous, and it was not possible to come to a definite conclusion, it might be necessary to consider other relevant evidence which was admissible under the Evidence Act. [406H; 407A B] (2) An interpretation of the words "private land" and "ryoti land" had to be made in consonance with the legisla tive purpose, provisions and scheme of the enactment. Inter pretare at Concordare leges legibus, est optimus interpre tundi modus. To interpret and in such a way as to harmonize laws with laws in the best mode of interpretation. [410E] (3) The Estate Abolition Act accepted the definitions of occupancy right and ryoti as in the Estates Land Act, 1908. The above provisions conferred permanent, heritable and transferable right of occupancy on the Tenant. This right stemmed from the will of the legislature and involved an element of social engineering through law star pro rationa voluntas populi: the will of the people stands in place of reason. The right of the landholder to keep his private land to himself has therefore to be interpreted in its proper perspective. Statuta pro publico late interpretaur. Statute made for the public good ought to be liberally construed. [425E F] 396 (4) The concept of past or present intention of the landholder to resume personal cultivation of land let out to a tenant and still in possession of the tenant has to be strictly construed against the landlord and liberally in favour of the tenant. [425E] The learned Single Judge in the instant case rightly observed that the legislature did not use the word domain or home farm land without attaching to them a meaning, and it was reasonable to suppose that they would attach to those words the meaning which would be given to them in ordinary English, namely, to connote land appurtenant to the mansion of the lord of the manor kept by the lord for his personal use and cultivated under his personal supervision is dis tinct from land let to tenant to be farmed without any control from the lord of the manor other than such control as incident to the lease. To that extent, the propositions of the learned Judges in Periannan 's case can no longer be held to be good law in view of this Court 's decisions in Chidambaram 's case and Venkataswami 's case, and the decision in Zamindar of Challapali vs Rajalapati/Jagadesan Pillai vs Kuppamal, and in Parish Priest of Karayar Perish vs Thiapa rajaswami Devasthanam mast be held to have been correctly decided. [421C E] Zamindar of Chellapalli vs Rajalapato Somayya, 39 Mad. 341; Jagadeesam Pillai vs Kuppamal, ILR ; Parish Priest of Karayar Parish vs Thiagarajaswami Devastha nam, App. 176 178 & 493 of 1946; Chidambaram Chettiar vs Santhanaramaswamy Odayar, ; ; Yerlagadda Malikarjuna Prasad Nayudu vs Somayya, ILR PC; P. Venkataswami D.S. Ramireddy, ; Suryanara yana vs Patanna, , referred to. Periannan vs Amman Kovil, AIR 1952 Mad. 323 F.B. partly overruled. (6) In the instant case the pattas and the muchilkas are not claimed to have shown anything to establish the lands to be private lands. Only the facts of occasional change of tenants and rents have been shown. [431B]

ON: Writ Petition (Criminal) No. 1376 of 1979. (Under Article 32 of the Constitution). A. K. Sen and Harjinder Singh for the Petitioner. U. R. Lalit and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. This Writ Petition has been filed with a prayer that an order of detention passed against the petitioner on the 7th 870 September, 1979, under section 3(1) of the be quashed. After the order was served on the detenu he made a representation on the 27th September, 1979 to the Govt. who received it on the 28th September, 1979. In support of the Rule Mr. A. K. Sen has raised a number of points, but in view of one of them which is to the effect that there has been an inordinate and unexplained delay on the part of the detaining authority in deciding the representation and that the detention is therefore vitiated, we need not go into the other points. On the question of delay the petitioner had expressly taken a plea in para 11 of the petition but in their reply the respondents have not at all explained or detailed any reason why there was inordinate delay in disposing of the representation submitted by the detenu to the detaining authority. The admitted position is that the representation was received by the Government on the 28th September, 1979 and it was rejected on 3rd November, 1979, that is to say, after about one month and five days of the receipt. It is now well settled that any unexplained delay in deciding the representation filed by the detenu amounts to a clear violation of article 22(5) of the Constitution of India and is sufficient to vitiate the detention. Our attention was drawn by the counsel for the petitioner to a recent decision of this Court in Narendra Purushotam Umrao etc. vs B. B. Gujral & Ors. where this Court while relying on an earlier decision of this Court in Pankaj Kumar Chakraborty & Ors. vs State of West Bengal pointed out that under Clauses 4 and 5 of article 22 of the Constitution the detenu has a dual right, viz., 1. to have the representation, irrespective of the length of detention, considered by the appropriate Government, and 2. to have the representation considered by the Board duly constituted under the concerned Act. We might further mention that the constitutional right to file a representation to the Government carries with it impliedly a right that the representation must be disposed of as quickly as possible and any unexplained delay would amount to a violation of the constitutional guarantee contained in article 22 (5). This Court has also pointed out that the obligation of the appropriate detaining authority to take a decision on the representation filed by the detenu is quite apart 871 and distinct from its obligation to constitute a Board and to send the representation to it. The detaining authority is not entitled to wait for the opinion of the Board but has to take its decision without the least possible delay. In Writ Petition No. 246 of 1969 decided on September 10, 1969 this Court observed as follows: "It is implicit in the language of article 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. There was, therefore, no reason for the Government to wait for considering the petitioner 's representation until it had received the report of the Advisory Board. As laid down in Sk. Abdul Karim & Ors. vs State of West Bengal, (supra) the obligation of the appropriate Government under article 22(5) is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid independent of any opinion which may be expressed by the Advisory Board. The fact that article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning. " The observations extracted above clearly show that the representation must be considered by the Government as expeditiously as possible. Mr. Lalit submitted that the delay in deciding the representation was due to the fact that the representation had to pass through various channels and departments before the Government was in a position to decide it. In the first place no such facts have been pleaded in the reply filed by the respondents and, therefore, we cannot entertain the grounds now urged by the counsel for the Union for the first time in the arguments before us. Even so it appears that at the most the detaining authority had forwarded the representation to the Revenue Intelligence whose comments were received on 16 10 79. Thereafter there was absolutely no justification for any delay in taking a decision on the merit of the representation. Even if we assume that there was some reasonable explanation for the delay from 28th September, 1979 to 16th Octo 872 ber, 1979, there appears to be no good explanation whatsoever for the delay from 16th October, 1979 to 2nd November, 1979 when the representation was rejected by the Government. It is manifest that the Government was not obliged to wait for the decision of the Board because it had to consider the representation independently of what the Board might say. In this view of the matter, we are satisfied that there has been unreasonable delay in deciding the representation filed by the detenu and that by itself is sufficient to render the detention void. For these reasons we allow this petition, set aside the order of detention and direct that the detenu be released forthwith. V.D.K. Petition allowed.

The respondent 's forefather was the landholder of a piece of land in the State. The land was taken possession of in 1897 as the land came under a Timber depot established on land adjacent to Government land. The practice prevalent during the Maharaja 's time was that only rent was remitted and no compensation was paid for the taking over the land. The respondent 's ancestors had no proprietory right in the land and the right of possession was also lost on the Government dispossessing him. Some sixty years later, the respondent filed an application before the then Prime Minister of the State for payment of compensation of the said land. Instead of deciding as to whether the State was liable to pay compensation in respect of the land which had been taken over sixty years ago, a new land acquisition proceeding under the Jammu and Kashmir State Land Acquisition Act, 1934 was started in the year 1955 and an Award for Rs. 32,645.62 as compensation for the land was made by the Collector. On reference the District Judge increased the amount of compensation. On appeal by the State, the High Court restored the amount fixed by the Collector. The respondent 's application under order 41 Rule 27 C.P.C. was dismissed by the High Court. A review petition that the land had already been acquired and that the land acquisition proceeding was without jurisdiction and a nullity was rejected. A suit was filed that the land acquisition proceedings had been taken as a result of taken of fact and law and that the entire proceeding was vitiated. The suit was dismissed. Appeal to a division Bench was also dismissed. Allowing the appeal, ^ HELD: In 1894 the Assamidar lost his assamidari right when the State p resumed the land from him. There was no law then that compensation was to be given. It depended upon the sweet will of the Riyasat to give some other land in lieu of the land acquired. Only the land revenue was remitted, and documents indicate, compensation was also paid for the standing crops in the land. No right was left in the landholder in respect of which he could acquire a better right. Whatever right was possessed by the respondent 's ancestor was dead and gone in the year 1894. [285H, 286A B] 2. The land was resumed by the Durbar from the ancestor of the respondent before the end of the 19th century and it was recorded as 'Khalsa '. The land had become the State land in the full sense of the term and belonged to the State since then. No semblance of any right, title or interest was left in the respondent 's ancestor thereafter. [286D E] 3. A queer procedure was adopted for acquiring the land under the State Land Acquisition Act afresh, thus determining the compensation on the basis of the market value of the land prevailing 60 years later. Under the influence of 282 some high ups, a case was made out for payment of compensation to the respondent in respect of the land acquired sixty years ago by acquiring it again which led to the determination of the market value of the land in the year 1955. [286G, 287A] 4. The State Exchequer cannot be made to suffer for illegal actions of its officers. The land had been resumed long ago and belonged to the State. The whole proceeding of land acquisition was a nullity and the Award resulting therefrom was ultra vires. It mattered little whether the proceeding was taken as a result of fraud or mistake or otherwise. The respondent had not practised any fraud nor was the land acquisition proceeding started as a result of any mistake of fact. It was either as a result of gross negligence or a deliberate act on the part of the officials at the instance of some high ups to help the respondent. There is no question of any acquisition of the State 's own land as was purported to be done in this case. [287B D] Government of Bombay vs Esufali Salebhai, I.L.R XXXIV Bombay, 618; Mohammad Wajeeh Mirza vs Secretary of State for India in Council, A.I.R. 1921 oudh, 31, The Deputy Collector Calicut Division vs Aiyavu Pillay and others, IX Indian Cases, 341; The Collector of Bombay vs Nusserwanji Rattanji Mistri & others ; referred to. of State vs Tayasaheb Yeshwantrao Holkar, A.I.R. , & Narriot vs Hamoton distinguished. The plea taken in the appeal by filing a petition under order 41 Rule 27 or in the review matter in the High Court was beyond the scope of the appeal filed under the State Land Acquisition Act. The scope of that appeal was the determination of the amount of compensation and not to declare the whole of the land acquisition proceeding a nullity. Whatever, therefore, was said by the High Court either in appeal on the question of adverse possession or while rejecting the review petition was outside the scope of the land acquisition appeal. It could not operate as res judicata in the present suit. The observations of the High Court were without jurisdiction. Nor did any question of estoppel arise in this case because the respondent was not made to change his position by starting the land acquisition proceeding against him. He had already lost his land. He merely wanted compensation. The method adopted for the payment of compensation was wholly ultra vires and without jurisdiction. [288H, 289A B]

ivil Appeal No. 1102 of 1990. From the Judgment and Order dated 7.10.1988 of the Patna High Court in C.W.J.C. No. 2075 of 1988. A.K. Sen, K.D. prasad, J. Krishna and Mrs. Naresh Bakshi for the Appellant. S.K. Sinha and U.S. Prasad for the Respondents. The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J. Special Leave is granted. This appeal from an order of the Patna High Court raises an important question as to the scope of section 33 B of the ( 'The Act '). The facts can be quite shortly stated: The appellant company is mainly engaged in construction of coal washeries on contract basis in different collieries and also doing allied and incidental work. Shivaji Prasad Sinha respondent No. 4 was a Senior Supervisor in the company 's establishment at Dhanbad. It is said that he was caught red handed when carrying 55 pieces of electromagnetic clutch plates kept concealed in the tool box of his scooter. The management held domestic enquiry into the incident and found him guilty of committing theft. He was accordingly dismissed from service. The dispute arising therefrom was referred under Section 10(1)(c) of the Act to Labour Court Dhanbad for adjudication. The Labour Court registered the case as refer ence case No. 4 of 1988 and issued notice to the parties. The parties entered appearance and filed their respective pleadings. When the matter was thus pending consideration the respondent seems to have written to the Government stating that it would be difficult for him to attend the Labour Court Dhanbad since he has been residing at Hajipur and it would be convenient for him if the case is trans ferred to Labour Court Patna. That application was made without intimation to the management. The Government howev er, has acceded to the request of the respondent and without opportunity to 294 the management transferred the case to Labour Court Patna. The Notification issued in that regard reads as follows: "NOTIFICATION Patna dated 8th August 1988 S.O. In exercise of powers conferred by sub section (1) of Section 33 B of the (14 of 1947) the Governor of Bihar after careful consideration of the application of the petitioner Shri Shivajee Prasad Sinha wherein he has prayed for the transfer of adjudication proceedings to Patna keeping in view to the difficulties expressed by him to attend the labour court, Dhanbad, regu larly due to his residence at Hajipur is pleased to withdraw the proceeding shown in Annexure 'A ' pending before Labour Court, Dhanbad and transfer the said proceeding to the Labour Court, Patna for speedy disposal from the stage at which the case is transferred. " The management moved the High Court by way of writ petition under Article 226 of the Constitution to have the Notification quashed. The High Court did not agree and summarily dismissed the writ petition with an observation: "Since no prejudice is being caused to the petitioner and no allegation of mala fide has been made against the presiding officer, Patna, we are not inclined to interfere with the order under challenge. This application is dismissed" The management in the appeal challenges the Government notification withdrawing and transferring the pending case from the Labour Court Dhanbad to Labour Court Patna. Since the impugned notification has been issued under Section 33 B of the Act, we may for immediate reference set out that Section. Omitting immaterial words, it is in these terms: "33.B. Power to transfer certain proceedings: (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, 295 Tribunal, or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special direc tions in the order of transfer, proceed either de novo or from the stage at which it was so transferred." The Section 33 B provides power to the appropriate Government to withdraw any proceedings pending before a labour court or Tribunal and transfer it for disposal to another labour court or Tribunal. It could be exercised suo motu or on representations of the parties. The expression 'may ' in sub section (1) of Section 33 B only makes it discretionary in so far as the appropriate Government taking a decision as to whether the power conferred thereunder has to be exercised or not. But when once a decision is taken to transfer a pending case then the requirement of giving reasons becomes mandatory. The authority is under legal obligation to record reasons in support of its decision. Reasons would be life of the decision. Failure to give reasons or giving reasons not germane would be fatal to the decision. In Associated Electrical Industries (P) Ltd. vs Its Workmen, [1961] II LLJ 122, 130 the Government withdrew and transferred a reference from one tribunal to another tribu nal merely stating that expediency required the withdrawal and transfer. The validity of the order of withdrawal and transfer was challenged inter alia on the ground that no reasons were stated for passing the order. Gajendragadkar, J., (as he then was) speaking for this Court observed that the requirement about the statement of reasons to be record ed must be complied with both in substance and in letter. To say that it is expedient to withdraw a case from one tribu nal and transfer it to another does not amount to giving reasons as required by the Section. In the instant case, the key question for consideration is whether the Government before accepting the representa tion of the workman and transferring the case from the labour court, Dhanbad to labour court, Patna should have given an opportunity to the management? The validity of the reasons given by the Government for transferring the case is another question to be considered. We will presently consider the question but before doing so a brief survey of some of the High Courts decisions bearing on this aspect may be usefully made. The Punjab High Court in Workman of Punjab 296 Worsted Spinning Mills Chheharta vs State of Punjab & Ors., [1965] II LLJ 2 18 has expressed the view that the power to transfer pending case under section 33 B is not a mere administrative but quasi judicial power and the appropriate Government cannot transfer a case on the basis of allega tions of one party without giving reasonable opportunity to other party to represent its point of view. This was also the view recognised by the Madras High Court in Management of Sri Rani Lakshmi Ginning and Weaving Mills Ltd. vs State of Madras, at 167. It was explained by the Madras High Court that the reasons given by a party who moved for transfer may not be valid or relevant or may not be true at all. Whether such reasons in fact exist and whether those reasons have any relevance for a transfer could be tested only if the other party has notice of the same. The High Courts of Calcutta, Andhra Pradesh and Allaha bad have however, taken contrary view. In Jay Engineering Works Ltd. vs Fourth Industrial Tribunal, Calcutta, [1977] (Lab) 1C 1739 at 1750 the Calcutta High Court has observed that it would be difficult to appreciate how under such circumstances, the Government could be called upon to give a notice to the parties before making an order under section 33 B. There could be no principle involved in giving such a notice. Nobody 's rights could possibly have been effected in taking such action and there is no question of observing the principles natural justice. The Andhra Pradesh High Court in Muthe Steels (India) Ltd. vs Labour Court, Hyderabad, [1979] (Lab) IC 325 at 329 has adopted a similar line of reasoning. It was emphasized that Section 33 B in terms does not con template any notice being given before a transfer is made of any proceeding from one Labour Court to another. There is no right to any party to have any question decided by a partic ular court. An arbitrary exercise of power of transfer is adequately safeguarded by the statutory requirement to record reasons for such transfer. The Allahabad High Court in Pioneer Ltd. vs Labour Court, Gorakhpur, [1983] (Lab) IC 335,338 has also expressed similar views. After the leading English case of Ridge vs Baldwin,I ; and an equally important case of this Court in A.K. Kraipak & Ors. vs Union of India, there was a turning point in the development of doctrine of natural justice as applicable to administrative bodies. Both the authorities laid down that for application of rules of natural justice the classification of functions as 'judi cial ' or 'administrative ' is not necessary. Lord Reid in Ridge case explained, 'that the duty to act judicially may arise from the very nature of the 297 function intended to be performed and it need not be shown to be super added '. Hegde, J., in Kraipak case said that under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness. The State functionaries must act fairly and reasonably. That is, however, not the same thing to state that they must act judicially or quasijudicially. In Keshav Mills Co. Ltd. vs Union of India, ; Mukherjea, J., said (at 30): "The administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly." The procedural standards which are implied by the duty to act fairly has been explained by Lord Pearson in Pearl berg vs Varty, ,547: "A tribunal to whom judicial or quasi judicial functions are entrusted is held to be required to apply those principles (i.e. the rules of natural justice) in performing those functions unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presump tion that compliance with the principles of natural justice is required although, as 'Parliament is not to be presumed to act unfairly ', the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fair ness. " In Mohinder Singh Gill vs Chief Election Commissioner, ; at 434 Krishna Iyer, J. commented that natural justice though 298 varying is the soul of the rule as fair play in action. It extends to both the fields of judicial and administrative. The administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Good administration demands fair play in action and this simple desideratum is the fount of natural justice. Fairness is flexible and it is intended for improving the quality of government by injecting fairplay into its wheels. In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 Bhagwati, J., expressed similar thought that audio alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. In Swadeshi Cotton Mills vs Union of India, Sarkaria, J., speaking for himself and Desai, J., said that irrespective of whether the power conferred on a statu tory body or tribunal is administrative or quasi judicial, a duty to act fairly, that is, in consonance with the funda mental principles of substantive justice is generally im plied. The presumption is that in a democratic polity wedded to the rule of law, the State or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly. In the same case, Chinnappa Reddy, J., added (at 2 12) that the princi ples of natural justice are now considered so fundamental as to be 'implicit in the concept of ordered liberty '. They are, therefore, implicit in every decision making function, call it judicial, quasi judicial or administrative. The learned Judge went on to state that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive, it should be followed by the authorities unless it is excluded by express words of statute or by necessary implication. Citations could be multiplied since there is fairly abundant case law has come into existence: See, for example, Royappa vs State of Tamil Nadu, ; and Union of India vs Tulsi Ram, [1985] (Supp.) 2 SCR 13 1. More recently in a significant judgment in Charan Lal Sahu & Ors. vs Union of India, JT learned Chief Justice Sabyasachi Mukharji has referred to almost all the authori ties of this Court on this aspect and emphasized that the principles of natural justice are fundamental in the consti tutional set up of this country. No man or no man 's right should be affected without an 299 opportunity to ventilate his views. The justice is a psycho logical yearning, in which men seek acceptance of their view point by having an opportunity before the forum or the authority enjoined or obliged to take a decision affecting their right. It may be noted that the terms 'fairness of procedure ', 'fair play in action ', 'duty to act fairly ' are perhaps used as alternatives to "natural justice" without drawing any distinction. But Prof. Paul Jackson points out that "Such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the. contrary, to refer to a standard of behaviour which, in creasingly, the courts require to be followed even in cir cumstances where the duty to observe natural justice is inapplicable" (Natural Justice by Paul Jackson 2nd ed. p. 11). We share the view expressed by Professor Jackson. Fair ness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern state is not abused but properly exercised. The State power is used for proper and not 'for improper purposes. The authority is not misguided by extraneous or irrelevant consideration. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase "that justice should not only be done but be seen to be done" is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good adminis tration. It has no set form or procedure. It depends upon the facts of each case. As Lord Pearson said in Pearlberg vs Varty, (at 547), fairness does not necessarily require a plurality of hearings or representations and counter repre sentations. Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly. A case with a not dissimilar problem was in Pannalal Binjraj and Anr. vs Union of India, There the Commissioner of Income Tax by the power vested under section 5(7A) of Income Tax Act, 1922, transferred an asses see 's case from one Income Tax Officer to another without hearing the assessee. Section 5(7A) of the Income Tax Act, 1922 provided: "The Commissioner of Income Tax may transfer any case from one Income Tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income Tax Officer to another. Such 300 transfer may be made at any stage of the proceedings, and shall not render necessary the re issue of any notice al ready issued by the Income tax Officer from whom the case is transferred. " This Section did not provide for affording an opportuni ty to the assessee before transferring his case from one Income Tax Officer to another. The assessee challenged the constitutional validity of the Section. This Court upheld its validity on the ground that it is a provision for admin istrative convenience. N.H. Bhagwati, J., speaking for this Court, however remarked (at 589): " . . it would be prudent if the principles of natural justice are followed, where circumstances permit, before any order of transfer under section 5(7A) of the Act is made by the Commissioner of Income Tax or the Central Board of Revenue, as the case may be, and notice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing . There is no presumption against the bona fide or the honesty of an assessee and normally the income tax authorities would not be justified in refusing to an assessee a reasonable oppor tunity of representing his views when any order to the prejudice of the normal procedure laid down in section 64(1) and (2) of the Act is sought to be made against him, be it a transfer from one Income Tax Officer within the State to an Income Tax Officer without it, except of course where the very object of the transfer would be frustrated if notice was given to the party affected. " Section 5(7A) was replaced by Section 127 of the Income Tax Act, 1961, which now makes it obligatory to record reasons in making the order of transfer after affording a reasonable opportunity of being heard to the assessee in the matter. In Ajantha Industries vs Central Board of Taxes, ; this Court considered the validity of a transfer order passed under Section 127 and it was held that merely recording of reasons on the file was not sufficient. It was essential to give reasons to the affected party. The order of transfer in that case was quashed for not communi cating reasons to the assessee. In the present case, the State has withdrawn the pending refe 301 rence from the Labour Court, Dhanbad and transferred it to another Labour Court at the distant District of Patna, on the representation of the workman, without getting it veri fied from the management. The State in fairness ought to have got it verified by giving an opportunity to the manage ment which is a party to the pending reference. Denial of that opportunity is a fatal flaw to the decision of the Government. The management need not establish particular prejudice for want of such opportunity. In S.L. Kapoor vs Jagrnohan, ; at 765 Chinnappa Reddy, J., after referring to the observation of Donaldson, J., in Altco Ltd. vs Suth erland, said that the concept that justice must not only be done but be seen to be done is basic to our system and it is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice. It was emphasized that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non observance of natural justice is itself prejudice to any man and proof of prejudice independ ently of proof of denial of natural justice is unnecessary. This takes us to the reasons given by the Government in support 'of the order of transfer. The Government has stated that the workman is having his residence at Hajipur and it would be therefore, inconvenient for him to attend the labour court regularly at Dhanbad. However, most of the factors do not point that way. The workman and his family members seem to be still residing in colony quarter at Dhanbad (Annexure C). His two sons are studying in De Nobili School at Mugma which is a nearby village. Reference may be made to a letter dated September 8, 1988 (Annexure D) of the Headmaster of the School in which the children of the work man are studying. Reference may also be made to a letter (Annexure E) from the Assistant Electrical Engineer in proof of the electricity supplied to the quarter occupied by the workman at Dhanbad. As against these material, the workman has not produced any proof in support of his allegation that he has been residing in a village home near Patna. In fact, in the counteraffidavit, he has not denied the documents annexed to the Special Leave Petition, and not seriously disputed the factum of his residence in the colony quarter at Dhanbad. Even the alleged recommendation of the Ward Commissioner referred in his counter affidavit has not been produced. We have, therefore, no hesitation in holding that the Government was misled by the representation of the workman. 302 In the result, we allow the appeal and quash the notifi cation dated August 8, 1988 by which the Government of Bihar transferred the case from the Labour Court, Dhanbad to the Labour Court, Patna. The Labour Court, Dhanbad shall now proceed to dispose of the matter as expeditiously as possi ble. In the 'circumstances of the case, we make no order as to costs. P.S. S Appeal allowed.

The respondent landlord filed an eviction petition against the appellants under section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the grounds of arrears of rent, sub letting and making material alterations impair ing the utility of the building. On the first date of hear ing before the Rent Controller the appellants tendered the arrears of rent but the respondent landlord refused to accept it on the ground that the tender of rent was not valid since it included rent on behalf of a disputed tenant. Accepting the case of unauthorised subletting the Rent Controller allowed the eviction petition holding that the rent tendered was not in terms of the proviso to sub section (2)(i) of section 13 because only the undisputed tenant alone ought to have tendered the rent. The appellate authority dismissed the appeal on the preliminary point of validity of tendering of rent, holding that the rent deposited by the appellants was not valid, since one of the appellants was a stranger. The High Court confirmed the order of the appellate authority by dismissing the tenant 's revision in limine. In the appeal to this Court on the question, whether the word 'tenant ' included a person claiming to be a tenant, allowing the appeal, this Court, 279 HELD: 1. When a word has been defined in the interpreta tion clause, prima facie that definition governs wherever that word is used in the body of the Statute unless the context requires otherwise. The context is both internal and external. The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act. The exter nal context involves determining the meaning from ordinary linguistic usage (including any special technical meanings) from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles. [286E G] Cross: Statutory Interpretation, 2nd ed. p. 48, referred to. 1.1 Even where the definition is exhaustive in as much as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. [287B] Vanguard Fire and General Insurance Co. Ltd. vs M/s Fraser and Ross & Anr., , followed. The opening sentence in the definition of Section 2 of the East Punjab Urban Rent Restriction Act, 1949 states "unless there is anything repugnant in the subject or con text". In view of this qualifications, the Court has not only to look at the words but also to examine the context and collocation in the light of the object of the Act and the purpose for which a particular provision was made by the Legislature. [286G H] 3. The apparent purpose of the proviso to Section 13(2)(i) was to relieve the defaulting tenant from the extreme penalty of eviction. The provision is analogous to Section 114 of the which confers discretion on the Court to grant relief against forfeiture for non payment of rent. But the proviso goes a step further and leaves no such discretion to the controller or Court even if the tenant is a constant defaulter. If the arrears and other amounts specified are paid or tendered on the first date of hearing, the default as a ground for eviction disappears and the Controller is precluded from passing a decree for eviction. The governing principle of the proviso is that the tenant could pay and stay an action for eviction on default. At the same time, the landlord is ensured payment of arrears, interest and the costs that he has incurred without the necessity of going to civil court to 280 recover it. The proviso affords a real and sanctified pro tection to tenant against eviction on the ground of default. It should not be given a hypothetical or literal construc tion, but should be meaningfully construed. The legislative protection concerning the tenants should not be narrowly tailored. Indeed, it should be given wider meaning and broader concept. [287G H; 288A; D] Court should try to understand the spirit of the text and not be bound by letter. [288D] Mangat Rai vs Kidarnath, ; , followed. Hudson County Water Co. vs Me Carter, ; , referred to. Taking into account the intention of the legislature and the purposes for which the proviso was enacted, it is clear that the obligation to tender the rent under the proviso to Section 13(2)(i) on the first hearing date does not depend upon the existence of admitted jural relationship of landlord and tenant. When an action for eviction is brought by the landlord or the ground of default, the provi so stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant. [289D E] Ram Gopal & Ors. vs Ram Prakash & Ors., [1963] RLR 1112 and Punjab Rajasthan Goods Carriers & Ors. vs Onkar Mal, [1977] RLR 1195, overruled. Law as creative response should be so interpreted to meet the different fact situations coming before the Court. For, Acts of Parliament were not drafted with divine pres cience and perfect clarity. It Is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislators do not deal with the specific controversies. When conflicting interests arise or defect appears from the language of the Statute, the Court by consideration of the legislative intent must supplement the written word with 'force and life '. [287E F] Seaford Estate Ltd. vs Asher, , referred to.

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. 39 From the Judgment and Order dated 9.12.91 of the Allahabad High Court in Civil Misc. W.P.No. 11114 of 1990. D.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 common 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 nomination of only one woman as a member of the Municipal Board by the State Government. Further, there was no provision permitting the State Government to cancel the nomination of such member at its pleasure. One Smt. Sarla Devi was nominated 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 nomination 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 nomination 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 notification was issued by the State Government cancelling of nominations of Women members in several Municipal Boards in Uttar Pradesh. The nomination of Smt. Sarla Devi also stood cancelled. On 19.4.1990, the State Government nominated 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 nominated 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 40 22.7.1991initiated no confidence 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 consideration of the no confidence 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 notification cancelling the nominations of Smt. Abida and Hazra Khatoon and in their place nominated 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 constitutional validity of the fourth proviso to Section 9 of the Act as well as the notification dated 2.8.1991 whereby the nomina tions of Smt. Abida and Hazra Khatoon were cancelled and in their place Smt. Shyama Devi and Smt. Baijanti Devi were nominated. Mohd. lqbal also challenged the proceedings of no confidence motion initiated against him. The High Court in the aforesaid Writ Petition passed an interim order stating that outcome of the no confidence proceedings shall be subject to the result of the Writ Petition but did not grant any stay of no confidence proceedings. 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 concerned, they neither attended the said meeting nor 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 no confidence motion out of the total strength of 37 members of the Board. After the no confidence 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 continued to function as President thereafter. Mohd. Iqbal then filed another Writ Petition No. 23861 of 1991 on 20th August, 1991 challenging the no confidence motion dated 12.8.1991 passed against him. The High Court refused to pass any stay order in favour of Mohd. Iqbal. Abida and Smt. Hazra Khatoon also filed a Writ Petition No. 24353 of 1991 on 12.9.1991 challenging the cancellation of their nominations and nominating 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 vs State of U.P. by order dated 13.11.1991 held that the fourth proviso to Section 9 of the Act was constitutional and valid and any notification issued by the State 41 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 vs 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 notification issued thereunder cancelling the nomination of any woman member of the Board and nominating a new member was invalid. A Division Bench of the Allahabad High Court considered all the three Writ Petitions, two filed by Mohd. Iqbal and one by Smt. Abida and Smt. Hazra Khatoon and by a common order dated 14.9.1991 recorded its agreement with the decision in Rama Mishra 's case and quashed the notification 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 nominated and also declared Mohd. Iqbal to be the President of the Board. In this judgment the High Court though followed Rama Mishra 's case but failed to take notice of the decision of the Lucknow Bench of the High Court dated 13.11.1991 given in Prem Kumar Balmiki 's 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 come in appeal by Special Leave Petition Nos. 13621 23 of 1992. Bashiran who was a nominated woman member in the Municipality of Varanasi and whose nomination 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 Mishra 's 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 Mishra 's case. After taking the aforesaid view the High Court held that the State Government had no power to cancel the nominations of Smt. Abida and Smt. Hazra Khatoon and to nominate Smt. Shyama Devi and Smt. Baijanti Devi in their place. The High Court as a result of the above finding held that the notification dated 2.8.1991 was a nullity and that being so, the earlier notification dated 19.4.1990 nominating Smt. Abida and Smt. Hazra Khatoon remained operative. The High Court then considered the next question as to what was the effect of the notification dated 2.8.1991 and the motion of no confidence passed on 12.8.1991. The High Court in this 42 regard took the view that the total strength of the members was 37 and the motion of no confidence was carried out by 20 members including the two nominated members Smt. Shyama Devi and Smt. Baijanti Devi. As nomination 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 considered 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 consisting 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 no confidence having not been passed by a requisite majority the entire proceedings held on 12.8.1991 relating to the motion of no confidence was non est and as such the resolution of no confidence passed therein was void. The High Court also repelled the contention that till the nomination 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 contention that the nomination of Smt. Abida and Smt. Hazra Khatoon vide notification dated 19.4.1990 should also be declared invalid on the analogy on which the notification dated 2.8.1991 nominating Smt. Shyama Devi and Smt. Baijanti Devi has been declared invalid. The High Court in this regard held that the notification 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 no confidence 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 notification 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 no confidence passed against the petitioner are quashed. Annexures No. 1 and 1 A to this petition are quashed. The respondents are directed not to interfere with the petitioner 's 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 43 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 costs. " Before considering 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 composition of the board. Except as otherwise provided by Section 10, a Board shall consist of (a) The President; (b) The elected members who shall not be less than 10 and not more than 40, as the State Government may by notification in the Official Gazette specify; (c) The ex officio members comprising all members of the House of People and the State Legislative Assembly whose constituencies include the whole or part of the limits of the Municipality;] [(d) Ex officio members comprising 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 notification of his election or nomination, as the case may be] : [Provided that if none of the members elected under clause (b), is a woman, the State Government may by a like notification nominate one woman as a member of the Board and thereupon, the normal composition of the 44 Board shall stand varied to that extent] [Provided that if none or only one of the members elected under clause (b), is a woman, the State Government may, by notification, nominate two women members or one more woman member, as the case may be, so that the number of women members in the Board is not less than two and thereupon the normal composition 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 not 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 constituency as he may choose : Provided also that if none of the members elected under clause (b) belongs to safai mazdoor class, the State Government may, by notification, nominate a person belonging to the said class a member of the Board, and thereupon the normal composition 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 notified by the State Government] : [Provided also that a member nominated under this section, whether before or after February 15, 1990 shall hold office during the pleasure of the State Government, but not beyond the term of the Board.]" "[47 A. Resignation of President of vote of non confidence. (1) If a motion of non confidence in the President has 45 been passed by the board and communicated to the President in accordance with the provisions of Section 87 A, the President shall (a) With three days or the (receipt) of such communication, 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 communication, 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 not elect a President until an order has been made by the State Government under sub section (3)]. [(2) ****] (3) If a representation has been made in accordance with sub section (1), the State Government may after considering the same [either supersede the board for such period, not exceeding the remainder of the term of the board, as may be specified, or reject the representation.] [(4)*****] [(5)*********] [(6) If the State Government supersedes the board under sub section (3) the consequences mentioned in Section 31 shall follow as if there had been a supersession under Section 30. '] "[87 A. Motion of non confidence against President. (1) Subject to the Provisions of this section, a motion expressing non confidence in the President shall be made 46 only in accordance with the procedure laid down below. [(2) Written notice of intention to make a motion of no confidence in its President signed by such number of members of the Board as constitute no less than [one half] of the total number of members of the Board together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate.] (3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall not be earlier than thirty and not later than thirty five days from the date on which the notice under sub section (2) was delivered to him. He shall send by registered post not less than seven clear days before the date of the meeting, a notice 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 notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice. (4) The District Magistrate shall arrange with the District Judge for a stipendiary civil judicial officer to preside at the meeting convened under this section, and no other person shall preside thereat. If within half an hour from the time appointed for the meeting, the judicial officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and the time to be appointed and notified to the members by that officer under sub section (5). (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 not later than fifteen days from the date appointed for the meeting under sub section (3). He shall without delay communicate in writing to the District Magistrate the 47 adjournment of the meeting. It shall not be necessary to send notice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give notice of the date and the time of the adjourned meeting by publication in the manner provided in sub section (3). (6) Save as provided in sub sections (4) and (5) a meeting convened for the purpose of considering a motion under this section shall not for any reason be adjourned. (7) As soon as the meeting convened under this section has commenced, the judicial officer shall read to the board the motion for the consideration of which it has been convened and declare it to be open for discussion. (8) No discussion on any motion under this section shall be adjourned. (9) Such discussion shall automatically terminate on the expiry of three hours from the time appointed for the commencement of the meeting, unless it is concluded earlier. Upon the conclusion 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. (10) The judicial officer shall not speak on the merits of the motion, nor shall he be entitled to vote thereon. (11) A copy of the minutes of the meeting together with a copy 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 copies 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.] 48 [(11 A.] As soon as may be after three days of the receipt of the copies mentioned in sub section (11), the District Magistrate shall forward the same to the State Government, together, in the event of the motion of non confidence having been carried, with a report whether or not the President has forwarded his resignation in accordance with the provisions of Sections 47 and 47 A;] [(12) 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.] [(13) If the motion is not carried by a majority as aforesaid, or if the meeting cannot be held for want of quorum which shall not be less than two thirds of the total number of members of the Board, for the time being, No. notice of any subsequent motion of no confidence in tic same President shall be received until after the expiry of a period of two years from the date of the meeting.] [(14) No Notice of a motion of no confidence under this section shall be received within two years of the assumption of office by a President.] [(15) 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 contended on behalf of the appellants that the view taken in Dr. Rama Mishra 's case was not correct and the view taken by the Lucknow Bench of the Allahabad High Court in Prem Kumar Balmiki 's case was correct. It was submitted that the State Legislature was fully competent to insert fourth proviso and to lay down that the nominated 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 49 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 contended that the Office of member of Municipal Board is a political office. It was further argued that if the initial appointment by nomination is made on political considerations, there appears no reason why political consideration should not be allowed to operate in terminating such appointments made by nomination. 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 nominated member to hold the Office during the pleasure of the State Government, there is no violation of any principle of natural justice nor such provision is arbitrary so as to be violative of Article 14 of the Constitution. It was contended that the only requirement under the second proviso to Section 9 of the Act was that if none or only one of the members elected under clause (b) is a woman, the State Government may by notification, nominate two women members or one more woman member as the case may be, so that the number of women members in the Board is not less than two. It was submitted that the State Government has not violated the aforesaid provision inasmuch as Smt. Shyama Devi and Smt. Baijanti Devi were nominated in place of Smt. Abida and Smt. hazra Khatoon and the number of two women members in the Board was kept intact. Learned counsel for the private respondents submitted that once the power of nominating the women members is exercised by the State Government, such nominated members cannot be removed prior to the completion of the term of the Board unless they are removed on the grounds contained under Section 40 of the Act. It was also contended that the State Government cannot be allowed to remove a nominated member at its pleasure without assigning any reason and without affording any opportunity to show cause. Once a woman member is nominated 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 contended that such arbitrary and naked power without any guidelines would be contrary to the well established principles of democracy and public policy. It would hamper the local bodies to act 50 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 nominated 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 nominated member is con terminous with the term of the Board. The normal 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 nominated members. In respect of a nominated member, power of curtailment of term has now 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 concerned with the removal of nominated members under the fourth proviso to Section 9 of the Act and we are not concerned with the removal as contained in Section 40 of the Act. The right to seek an election or to be elected or nominated to a statutory body, depends and arises under a statute, The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the Legislature 51 authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not 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 could be removed. But so far as the nominated members are concerned, the Legislature in its wisdom has provided that they shall hold office during the pleasure of the Govern ment. It has not been argued from the side of the respondents that the Legislature had no such 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 nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations. In Dr. Rama Mishra 's 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 not 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 not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15 (2) provides that no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them .be subject to any disability, liability, restriction or condition 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 52 use of the general public. Thereafter Article 15 (3) provides that nothing 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 not 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 contained for nominating 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 note that the provision of pleasure doctrine incorporated by adding proviso four does not, 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 nominated women members of its own choice. The High Court in Dr. Rama Mishra 's 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 not 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 not to enequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralise the nominated members in the discharge of their duties as a member in the Board. We do not find any justification for drawing such an inference, inasmuch as, such contingency 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 competent authority under the law, and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not 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 53 view that the decision in Dr. Rama Mishra 's case does not lay down. the .correct law and is overruled and the view taken by the High Court in Prem Kumar Balmiki 's case (supra) is held to be correct. We do not consider 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 nominated in place of Smt. Abida and Smt. Hazra Khatoon and were entitled to take part in the meeting held on 12.8.1991 for considering the motion of no confidence against Mohd. Iqbal, the President of Nagar Palika Shahjahanpur. Further, the motion of no confidence being supported by 20 members which admittedly constituted a majority of the total strength of the members of the Board being 37, the no confidence motion has been rightly carried out and as a result of which Mohd. Iqbal was not entitled to continue as President of the Board. Similarly, Smt. Abida and Smt. Hazra Khatoon having been rightly removed as nominated members, they are no longer entitled to continue as nominated members of the Municipal Board, Shahjahanpur and in their place Smt. Shyama Devi and Smt. Baijanti Devi shall be entitled to continue as nominated 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 costs. V.P.R. Appeals allowed.

The appellant, A 1, his wife, A 2, and his brother 's wife, A 3, were prosecuted under Sections 302/34 and 201/34 of the Indian Penal Code. Ile entire case was based on the circumstantial evidence : (a) the deceased had illicit relations with A 2 and A 3; (b) the deceased was last seen on the night when he went to sleep in his house and thereafter his dead body was found buried in the house of A 1; (3) during interrogation A 1 made a disclosure statement and consequently lead the police party to his sitting room where he pointed out a spot covered by a cot and thereafter he dug the floor and, the dead body of the deceased was recovered from a five feet deep pit; and (4) recovery of doe (woodcutter) from his possession bearing the same human blood group as that of the deceased. Relying upon these circumstances the trial court convicted A 1 and A 2 on both the counts and sentenced them to imprisonment for life on the first count and for five years on the second count but acquitted A 3. 'Me High Court dismissed the appeal of A 1. However, it acquitted A 2 on the ground that there was no evidence to connect her with the commission of the murder but maintained her conviction and sentence under sections 201/34 on the ground that she being the inmate of the house was in the know of the fact that the dead body was burried in the house with a view to causing the disappearance of evidence and she must have been necessarily involved in the process of digging a grave of five feet deep, the filling of the grave and erasing the traces etc. Both the accused filed appeals in this Courts. Dismissing the appeal of A 1 and allowing the appeal of A 2, this Court, 66 HELD: 1. The chain of circumstances relied upon by the prosecution and accepted by the Courts below leaves no manner of doubt that A 1 committed the murder. Accordingly his conviction and sentence is upheld. [68B] 2. There is not an iota of evidence on the record not even a whisper to the effect that it was A 2 who helped in concealing or causing the evidence of the commission of the offence to disappear. Simply because she is the wife of A 1 and as such is supposed to be living in the same house, It cannot be assumed that she was guilty of the offence under section 201/34. A 1 may or may not have taken help of his wife in concealing the dead body. Her being wife of A 1 by itself is not sufficient to prove the charge under section 201/34. She is accordingly acquitted of that charge. [68H, 69A B]

Appeal No. 2373 of 1966. Appeal from the judgment and order dated September 1964 of the Bombay High Court Nagpur Bench in Special Civil Appli cation No. 471 of 1964. 178 C.B. Agarwala, G., L. Sanghi, P. N. Kukde and A. G. Ratna parkhi, for the appellants Nos. 1, 2 and 4 to 6. R. M. Hazarnavis and A. G. Ratnaparkhi, for appellant No.3. section T. Desai, M. section Gupta and section K. Dhingra, for respondent No. 1. N. section Bindraand section P. Nayar, for respondents Nos. 2 and 3. The Judgment of the Court was delivered by Shah, J. Gendalal hereinafter called 'the mortgage ' filed Suit No. 11 of 1939 for recovery of the amount due under a deed of mortgage of proprietary rights in certain villages executed in 1929 by Prahlad father of the appellant. A preliminary mortgage decree was passed declaring that Rs. 2,16,309/11/9 were due on the mortgage. The decree was made absolute for sale. The mortgage commenced in 1948 proceedings for executing the decree. On March 31, 1951, the Madhya Pradesh Abolition of Pro prietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951 was brought into force. By virtue of section 3 of that Act the proprietary rights of holders of estates, mahals, alienated villages. and alienated lands stood vested in the State. Chapter IV of the Act provided for "determination of debts". The mortgagor Prahlad applied on April 26, 1951 to the Claims Officer under section 19 of that Act for "determination of the debt" due to the mortgagee and for scaling down the debt. The mortgagee contended that the debt had, by adjudication of the Court, been merged into a decree and there was no "secured debt" which could be determined or scaled down. The Claims Officer held that there was a debt due to the mortgagee, that it was a secured debt, and that he had jurisdiction to "determine the debt". On November 19, 1951 the Claims Officer directed the mortgagee to submit a statement of the claim under section 22 of the Act. Against the order of the Claims Officer, the mortgagee appealed to the Board of Revenue. Following the judgment of the Nagpur High Court in Ramkishan vs Board of Revenue, Madhya Pradesh(1), the Board of Revenue set aside the order holding that the Claims Officer had no jurisdiction to decide the question Whether there was a secured debt, and that the Civil Court alone was competent to decide that question. In the execution application filed by the mortgagee the Additional District Judge held that there was a secured debt within the meaning of section 19 read with section 17(1) of the Act due to the mortgagee under the mortgage, notwithstanding the decree passed by the Civil Court. (1) I.L.R 179 On October 3, 1955, the High Court of Nagpur in Jethalal Bhawanji vs Prabhakar Sadashiv(1) overruled the Judgment in Ramkrishna 's case (2 ) , and held that the Claims Officer had jurisdiction to decide whether a debt was a secured debt. The mortgagee then filed on January 23, 1958, a statement of his claim. On March 26, 1958, the appellant son of the original mortgagor Prahlad contended that the debt stood discharged because the mortgagee had failed to file a statement of his claim as ordered on November 19, 1951 by the Claims Officer. By order dated December 24, 1962 the Claims Officer upheld the contention of the appellant. Against that order the mortgagee preferred an appeal to the Commissioner, Nagpur Division. At the hearing of the appeal, the appellant contended that the Commissioner had no jurisdiction to hear the appeal. The Commissioner rejected the contention of the appellant and set aside the order of the Claims Officer discharging the debt. A petition moved by the appellant in the ' High Court of Bombay at Nagpur challenging the order passed by the Commis sioner was summarily dismissed. With certificate granted by the High Court, this appeal has been preferred. Counsel contended that the mortgagee failed to file a state ment of account pursuant to the order dated November 19, 1951 by the Claims Officer, and by virtue of section 22 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951 the debt stood discharged. But the order of the Claims Officer holding that there was a secured debt was set aside in appeal by the Board of Revenue. Any proceeding consequent upon that adjudication was, in view of the judgment of the Board of Revenue, unauthorised. That decision of the Board of Revenue became final between the parties. It cannot be contended that because in another proceeding the High Court of Nagpur expressed the view that the judgment on which the Board of Revenue relied was erroneous, the direction of the Claims Officer requiring the mortgagee to file his statement of account was revived, and if the directions of the Claims Officer word not complied with, the debt due to the mortgagee was discharged. The order of the Claims Officer was reversed by the Board of Revenue, and all directions given by the Claims Officer, pursuant to his order calling upon the mortgagee to file a statement of his claim, stood annulled. The Nagpur High Court in Jethalal Bhawanji 's case(1), it is true, decided that the Claims Officer was competent under section 23 of M.P. Act 1 of 1951 to determine whether a debt is a secured debt. But the first order of the Claims Officer was annulled by order of the Board of (1) I.L.R. (2) I.L.R. (19541 Nag. 180 Revenue and thereafter that officer did not pass any order under section 22 of Act 1 of 1951 directing that the proceeding shall continue, and further directing that a notice shall issue calling upon the mortgagee to file a statement of the claim. Until a notice, valid in law, directing that a statement be filed was served upon the mortgage and he failed to comply with it, the debt could not be discharged. Section 22 enacts a penal provision and unless the conditions precedent are satisfied, the debt could not by operation of the statute be discharged). The High Court was right in dismissing the petition. The appeal fails and is dismissed with costs.

The first respondent was appointed in 1958 as a skilled workman by the appellant Company. He had executed a bond to serve the Company for five years in consideration of the Company having borne.the expenses of his training. In accordance with the practice of the Company a verification report about him was called for as was done in the case of other workmen also. On a report from the Police the Security Officer recommended that it was not desirable to retain the respondent in the company 's service any longer. The respondent at the time was working as a fitter in the blast furnace of the works. In December 1960 he was served with an order by which his service was terminated. The Industrial Tribunal, on a reference of the dispute, rejected the Union 's allegation as to victimisation or unfair labour practice. Nevertheless it held that it was improper on the part of the Company not to have disclosed the report to the respondent, that the order of termination was in fact punitive in nature and considering the action taken as disproportionate the order was illegal and unjustified. The Tribunal therefore directed reinstatement with full back wages. On a petition for a Writ of Certiorari the High Court upheld the Tribunal 's order. It also held that the case was not one of those exceptions to the general rule of reinstatement and the Tribunal having exercised its discretion it could not interfere with the Tribunal 's order. The appeal to this Court was limited only to the question whether the relief to the first respondent should have been reinstatement or compensation. HELD : (1) In the circumstances of the case the Tribunal was not justified in directing reinstatement and the High Court erred in refusing to interfere with the order of the Tribunal merely on the ground that it could not do so as it was a case where the Tribunal had exercised its Discretion. The Tribunal has the discretion to award compensation instead of reinstatement if the circumstances of a Particular case are unusual or exceptional so as to make reinstatement inexpedient or improper. The Tribunal has to exercise its discretion judicially and in accordance with the well recognised principles in that regard and has to examine carefully the circumstances of each case and decide whether such a case is one of those exceptions to the general rule. If the Tribunal were to exercise down by this Court it would be a case either of no exercise of discretion or of one not legally exercised. In either case the High Court in exercise of its jurisdiction can interfere and cannot be content by simply saying, that since the Tribunal has exercised its discretion, it will not examine the circumstances of the case to ascertain whether or not such exercise 344 was properly and in accordance with settled principles made. If the High Court were to do so, it would be a refusal on its part to exercise jurisdiction. [351 B E] In the present case the termination of service was not on account of victimisation or unfair labour practice. It is clear that the Company terminated the service of the workman only because it felt that it was not desirable for reason of security to continue the workman in its service. Therefore what was relevant at the stage when the Tribunal came to decide what relief the workman was entitled to was the question whether the management genuinely apprehended as a result of the report that it would be risky to retain the workman in the company 's service. If, on an examination, of the circumstances of the case the Tribunal came to the conclusion that the apprehensions of the employer were genuine and the employer truly felt that it was hazardous or prejudicial to the interests of the industry to retain the workman in his service on grounds of security the case would be properly one where , compensation would meet the ends of justice. The present case is one such. The Tribunal exercised its discretion mechanically without weighing, the circumstances of the case and the refusal by the High Court to interfere was equally mechanical and amounted to refusal to exercise jurisdiction. A GI Western India ' Automobile Association vs Industrial Tribunal , 348; United Commercial Bank Ltd. vs U.P. Bank Employees Union, [19521 ; Punjab National Bank Ltd. vs Workmen, ; Assam Oil Co. Ltd. vs Workmen, ; ; Working of Charottar Gramodhar Sahakari Mandali Ltd. vs Charottar Gramodhar Sahakari Mandali Ltd., C.A. 382 of 1966, dec. on August 14, 1967; Deomur Dulung Tea Estate vs Workmen, C.A. 516 of 1966, dec. on October 26, 1967; and Ruby General Insurance Co. Ltd. vs P.P. Chopra, C.A. 1735 of 1969, dec. on September 12, 1969, referred to. (ii)In the circumstances of the case it would be proper for this Court to determine the amount of compensation. Compensation for a period of two years at the rate of Rs. 160 per month, that being the last salary drawn by the concerned workman would meet the ends of justice. [353 DI Assam Oil Co. Ltd. vs Workmen, [19601 3 S.C.R. 457 and Utkal Machinery Ltd. vs Workmen, ; , referred to.

Civil Appeals Nos. 600 601 and 1699 1714 and 877 878 of 1975. Appeals by Special Leave from the Judgment and Order dated 30th January 1975 of the Gujarat High Court in Spl. Civil Applns. Nos. 15, 1194, 88, 89, 90, 107, 113, 121, 122, 124, 125, 166, 182, 202, 112, 123, 177, 1757, 149, 150 of 1974 respectively. 622 F. section Nariman, K. section Nanavati, P. C. Bhartari and J. B. Dadachanji, for Appellant (In CA 600/75). K. section Nanvavati, P. C. Bhartari and J. B. Dadachanji, for the Appellants (In CA 601/75 and CA 1700 1714/75). V. M. Tarkunde, K. section Nanavati, P. C. Bharatari and J. B. Dadachanji for the Appellant (in CA 1699/75). V. N. Ganpule, for Appellants (In CA 877 878/75). M. C. Bhandare and M. N. Shroff, for the Respondents (In CA 600 601 of 1975) and CA Nos. 1699 1714/75 and 877 to 878/75. The Judgment of the Court was delivered by KHANNA, J. This judgment would dispose of civil appeals Nos. 600, 601, 877, 878 and 1699 to 1714 of 1975 which have been filed by special leave against the judgment of Gujarat High Court dismissing petitions under article 226 of the Constitution of India filed by the appellants. The appellants in these petitions assailed the validity of sections 53A and 53B of the Bombay Industrial Relations Act, 1946 (Bombay Act No. 1 of 1947) (hereinafter referred to as the principal Act). These sections along with some other provisions were inserted in the principal Act by the Bombay Industrial Relations and Industrial Disputes (Gujarat Amendment) Act, 1972 (Gujarat Act No. 21 of 1972). The appellants also challenged the validity of the rules which were added to the Bombay. Industrial Relations (Gujarat) Rules, 1961 as per notification dated June 4 1973. In addition to that the appellants challenged the validity of notification dated December 17, 1973. The principal Act was enacted to regulate the relations of employers and employees, to make provisions for settlement of industrial disputes and certain other purposes. In 1956 the industrial policy resolution of the Government of India stated inter alia that in a socialist democracy labour is a partner in the common task of development and must participate in it with enthusiasm. Emphasis was laid upon joint consultation of workers and technicians and for associating progressively labour in the management of the industry. Stress was again laid on joint management councils at the tripartite conference held in July 1957. Representatives of labour, management and Government were present at that conference. There was, however, no statutory provision for joint management councils and whatever was done, was on a voluntary basis. Sections 53A and 53B were inserted in the principal Act by Gujarat Act 21 of 1972. The two sections read as under: "53.A(1) If in respect of any industry, the State Government is of opinion that it is desirable in public interest to take action under this section, it may, in the case of all undertakings or any class of undertakings in such industry, in which five hundred or more employees are employed or have been employed on any day in the preceding twelve months, by general or special order require the employer to constitute 623 in the prescribed manner and within the prescribed time limit a Joint Management Council, consisting of such number of members as may be prescribed, comprised of representatives of employers and employees engaged in the undertaking, so however that the number of representatives of employees on the Council shall not be less than the number of representatives of the employers. Notwithstanding anything contained in this Act, the representatives of the employees on the Council shall be elected in the prescribed manner by the employees engaged in the undertaking from amongst themselves: Provided that a list of industries in respect of which no order is issued under this sub section shall be laid by the State Government before the State Legislature within thirty days from the commencement of its first Session of each year. (2) One of the members of the Council shall be appointed as Chairman in accordance with rules made in this behalf. 53B (1) The Council shall be charged with the general duty to promote and assist in the management of the undertaking in a more efficient, orderly and economical manner, and for that purpose and without prejudice to the generality of the foregoing provision, it shall be the duty of the council (a) to promote cordial relations between the employer and employers; (b) to build up understanding and trust between them; (c) to promote measures which lead to substantial increase in productivity; (d) to secure better administration of welfare measures and adequate safety measures; (e) to train the employees in understanding the responsibilities of management of the undertaking and in sharing such responsibilities to the extent considered feasible; and (f) to do such other things as may be prescribed. (2) The Council shall be consulted by the employer on all matters relating to the management of the undertaking specified in sub section (1) and it shall be the duty of the Council to advise the employer on any matter so referred to it. (3) The Council shall be entrusted by the employer with such administrative functions, appearing to be connected with or relevant to, the discharge by the Council of its duties under this section, as may be prescribed. 624 (4) It shall be the duty of the employer to furnish to the Council necessary information relating to such matters as may be prescribed for the purpose of enabling it to discharge its duties under this Act. (5) The Council shall follow such procedure in the discharge of its duties as may be prescribed. " Consequent upon the insertion of sections 53A and 53B in the principal Act, the Bombay Industrial Relations (Gujarat) Rules were also amended and certain new rules were added. Rule 47A relates to the manner of election of two persons from amongst employees in disputes. Rule 61A reads as under: "61 A. Constitution of Joint Management Council. Any employer who is required by an order made under sub section (1) of section 53 A to constitute a Joint Management Council shall constitute within a period of ninety days from the date of the said order a Joint Management Council consisting of ten members, out of which the number of representatives of the employer to be nominated by the employer and the number of representatives of employees engaged in the undertaking to be elected from amongst themselves shall be such as may be determined by the employer so however that the number of representatives of the employees on the Council shall not be less than the number of representatives of the employer. " Rule 61B to rule 61T relate to election of employees representatives on the Management Council. Rule 61U prescribes for appointment of Chairman of the Council. Rule 61V deals with the constitution of the Council from time to time and the manner of filling in the vacancies. Rule 61W relates to the number of meetings of the Council and provides that the Chairman shall also have a second or casting vote in the event of equality of votes. Rule 61X makes other provisions for the meeting, while Rule 61Y deals with annual returns. Rules 61Z, 61ZA and 61ZB to which reference has been made during the course of arguments read as under: "61 Z. Duties of the Council. It shall be the endeavour of the Council: (i) to improve the working conditions of the employees; (ii) to encourage suggestions from the employees; (iii)to assist in the administration of laws and agreements; (iv) to serve generally as an authentic channel of communication between the management and the employees; (v) to create in the employees a sense of participation; (vi) to render advice, in the general administration of Standing Orders and their amendment when needed; 625 (vii)to render advice on matters pertaining to retrenchment or rationalisation, closure, reduction in or cessation of operations 61 Z A. Administrative functions with which the Council shall be entrusted by Employer. The Council shall be entrusted by the employer with administrative functions in respect of: (i) operation of vocational training and apprenticeship schemes; (ii) preparation of schedules of working hours and breaks and of holidays; and (iii)payment of rewards for valuable suggestions received from the employees. 61 Z B. Matters in respect of which the Council shall be entitled to receive information. The Council shall be furnished by the employer with information in respect of: (i) general economic situation of the concern; (ii) the state of the market, production and sales programmes; (iii)organisation and general running of the undertaking; (iv) circumstances affecting the economic position of the undertaking; (v) methods of manufacture and work; (vi) the annual balance sheet and profit and loss of statement and connected documents and explanation; and (vii)long term plan for expansion, re employment etc." Imugned notification dated December 17, 1973 reads as under: "No. KH SH 1988/BIR 1073 JH Whereas in respect of the industry specified in the Schedule annexed hereto the State Government is of opinion that it is desirable in public interest to take action under section 53A of the Bombay Industrial Relations Act, 1964 (Bom. of 1947), in the case of all undertakings in the said industry in which five hundred or more employees are employed or have been employed any day in the preceding twelve months. Now, therefore, in exercise of the powers conferred by sub section (1) of the said section 53 A, the Government of Gujarat hereby requires the employer of each such undertaking in the said industry to constitute a Joint Management Council in the manner and within the time limit specified in rule 61 A G of the Bombay Industrial Relations (Gujarat) Rules, 1961. 626 SCHEDULE Cotton Textile Industry as specified in the Government of Bombay Political and Services Department, Notification No. 2847/34 A, dated 30th May 1939 and the Government of Gujarat, Education and Labour Department, Notification No. BIR 1361, dated the 17th July 1961. " Although a number of contentions were advanced before the High Court to assail the validity of sections 53A and 53B as well as the rules mentioned above, before us learned counsel for the appellants have restricted their challenge to the impugned provisions only on the ground of lack of legislative competence of the State Legislature. So far as notification dated December 17, 1973 is concerned, we may state that the said notification is no longer in force and, instead of that notification a fresh notification date March 1, 1976 has been issued. In the circumstances, no opinion need be expressed on the validity of notification dated December 17, 1973. We also express no opinion on the reasons given by the High Court in upholding the aforesaid notification. It is also, in our opinion not necessary to express any opinion about the validity of notification dated March 1, 1976 as this notification was issued subsequent to the decision of the High Court and was not the subject matter of writ petitions before the High Court. We may now advert to the question of the legislative competence of Gujarat legislature to enact sections 53A and 53B reproduced above. In upholding the contention of the respondent State that the impugned provisions were within the sphere of the legislative competence of the State legislature under entries 22 and 24 of List III in Seventh Schedule to the Constitution, the High Court has held that the subject matter of the above legislation was labour welfare even though it might have some incidental effect on corporate undertakings or controlled industries. Dealing with rule 61ZB the High Court held that the information to be furnished should be of such a nature that its disclosure would not be harmful to the undertaking. The information, it was held, should not be confidential or relating to trade secrets. Sections 53A and 53B as already mentioned were inserted in the principal Act by Gujarat Act No. 21 of 1972. This Act was published on October 19, 1972 after it had received the assent of the President. According to the respondents, the above provisions have been enacted under entries 22 and 24 of List III of the Seventh Schedule to the Constitution. Entry 22 relates to trade unions; industrial and labour disputes, while entry 24 deals with "welfare of labour including conditions of work, provident funds, employers ' liability, workmen 's compensation, invalidity and old age pensions and maternity benefits". As against that, the contentions advanced on behalf of the appellants is that the impugned legislation falls under entries 43, 44 and 52 of List I in the Seventh Schedule which relate respectively to "incorporation, regulation and winding up of trading corporations including banking, insurance and financial corporations but not including 627 co operative societies;" "incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities;" and "industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest". We have given the matter our earnest consideration, and we find no sufficient ground to interfere with the finding of the High Court that the impugned statutory provisions fall under entries 22 and 24 of List III in Seventh Schedule of the Constitution and that the State legislature was competent to enact the same. The impugned provisions in our opinion, are intended in pith and substance to forestall and prevent industrial and labour disputes. They constitute also in essence a measure for the welfare of the labour. From a conceptual viewpoint, workers ' management of undertakings or self management represents the most far reaching degree of association of workers in decisions concerning them. Probably the best known example of this type of workers ' participation is the Yugoslav system of self management. Under that system, the workforce of the undertaking exercises the principal functions of management through the self management organs, the organisation and powers of which have been established since the sixties by the statute or internal regulations of the undertaking, namely, the workers ' assembly and the workers council. For varying lengths of time, in a large number of countries, and by virtue of a legal obligation, workers ' representatives have been included in management organs in the public sector as a whole or in certain nationalised undertakings. In the private sector, the system which has pushed workers ' representation to the furtherest degree is that of co determination applied in the Federal Republic of Germanv since the beginning of the fifties. By an Act of 1951, equal representation of workers was established on the supervisory boards of large iron and steel and mining undertakings. These boards generally include five workers ' representatives" five representatives of the shareholders and an eleventh member nominated by mutual agreement. In addition, one of the members of the directorate or management board, namely, the "labour director" who is generally responsible for personnel questions and social affairs, may only be nominated or dismissed in agreement with the maiority of the workers ' members of that board. Under an Act of 1952, the workers ' representation on the supervisory boards of the companies which do not belong to the above industries is one third of the total membership. Pressure is however, being brought by the trade unions for equal representation of workers on the supervisory boards in sectors other than iron and steel and mining (see International Labour Organization Background Paper on Symposium on Workers ' Participation in Decisions within Undertaking in Oslo in August 1974). The object of workers ' participation in joint management councils is to enlist co operation of workers with a view to bring about improvement in the performance of industrial organisations. It is assumed that the above scheme would give a robust feeling of participation to the workers in the management and thus result in improved functioning of the industrial undertaking. Another object appears to 628 be to democratise the industrial milieu and ensure egalitarianism in the process. It has not been disputed on behalf of the appellants that the various objectives mentioned in clauses (a) to (f) of sub section (1) of section 53B pertain to welfare of labour. What is, however, contended is that joint management councils may claim to exercise such functions under the opening words of sub section (1) of section 53B as can be discharged only by the Board of Directors. This contention, in our opinion, is not well founded. The impugned statutory provisions, in our opinion, should be so construed and implemented as would sustain their constitutional validity. The functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes. Such functions would be analogous to those specified in clauses (a) to (f). If the impugned legislation in pith and substance relates to subjects which are within the competence of the State legislature, as it in fact does, the fact that there is an incidental encroachment on matters which are the subject matter of entries in List I would not affect the legislative competence of the State legislature to pass the impugned legislation. The impugned rules, in our opinion, likewise relate to subjects which are within the competence of the State legislature. The rules in the very nature of things can operate only in that field in which the parent Act can operate. For about a hundred years the term industrial democracy has been often mentioned in the writings of socialists, trade unionists and social reformers. Of late the industrialists have taken it over. The reason for that is that industrialists have become conscious that any approach which has the effect of treating workers as if they were commodities is unsound and wasteful economically. The industrialists, it has been said, tried paternalism or benevolent autocracy, and they have found that this did not work, just as Frederick the Great and his followers found that benevolent political despotism did not work. Democracy in political terms means the consent of the governed in the governance of the country. In industry it means that wage earners shall have an effective voice. It has been observed by Edward Filence. "labour. , having experienced the advantages of democracy in government now seeks democracy in industry. Is it any stranger that a man should have a voice as to the conditions under which he works than that he should participate in the management of the city and the state and the nation ? If a voter on governmental problems, why not a voter on industrial problems ?" (See page 339, Personnel and Labour Relations by Nash/Miner). The above approach postulates trade unions as a potential positive force. For management and union to share the pluralist ideology requires more than agreement about joint decision making as such. It requires also that neither side enforces claims or imposes policies which are found excessively burdensome by its counterpart. As observed 629 by Alan Fox on page 303 of Beyond Contract Work and Trust Relations: "It follows from this analysis that management will be readier to accept pluralistic forms of decision making the greater its confidence that it will always be able, in the last resort, to bend employee claims towards acceptable compromises. It may even be convinced of its ability to charm them away altogether or at least much reduce them by 'rational ' argument and persuasion designed to bring out the 'true ' common interests. In this sense a formal acceptance of pluralistic patterns may mask unitary convictions on managements past about the nature of the enterprise. It may regard joint decision making and a fully institutionalised handling of claims and grievances not as mechanisms for compromising genuine conflicts of interest but as devices which facilitate the 'working through ' of mistaken conceptions, psychological blockages, and organizational confusions by a process of 'rational ' clarification. " It would appear from the above that the concept of joint management has a much wider connotation. That wider aspect of joint management would plainly be impermissible under the impugned legislation as it has been enacted by the State legislature. Such legislation can operate only within a limited field because that is the only way in which its constitutional validity can be sustained against the challenge on the ground of want of legislative competence by the State legislature. With the above observations we dismiss the appeals, but in the circumstances leave the parties to bear their own costs throughout. V.P.S. Appeal dismissed.

The appellant company carried on the business of manufacture, storage and sale of liquors Between June 1967 and April 1969 it transported various quantities of liquor from its distilleries in Uttar Pradesh to its bonded warehouse at Chandigarh On arrival the consignments were examined by the Officer in Charge of the warehouse and a shortage was found exceeding the wastage allowance permissible under rule 8 of the Punjab Bonded Warehouse Rules 1957 and April 1969, it Transported various quantities of liquor from its distilleries in Uttar Pradesh to its bonded warehouse at Chandigarh. On arrival, the consignments were examined by the Officer in Charge of the warehouse, and a shortage was found, exceeding the wastage allowance permissible under rule of the Punjab Bonded Warehouse Rule, 1957. The Excise and Taxation Commissioner, exercising the power of the Financial Commissioner, issued a show cause notice and then ordered the appellant to pay duty on the wastage in excess. The appellant 's petitions to the High Court under Articles 226 and 227 of the Constitution, were dismissed. It was contended before this Court, firstly that Rules 8 and 9 of the 1957 Rules under which the duty was sought to be imposed, were ultra vires the rule making power of the Financial Commissioner, and secondly, that these rules were invalid as they went beyond the scope of Ss. 16, 23 and 31 and Entry 51 List II, 7th Schedule of the Constitution, by imposing excise duty or counter vailing duty on articles which neither existed in the State nor were removed from the warehouse. Dismissing the appeals the Court, ^ HELD . (1) The impugned rules do not impose any duties or prescribe the rates thereof or create `any liability in respect thereof. They are in essence and substance of a regulatory character rent to guard against perpetration of fraud or deception on the revenue. They provide for and regulate the storage and subsequently the Removal of liquor from the bonded warehouse, on payment or otherwise of the duty which is chargeable under the Fiscal Rules of 1937, issued be the State Government. The power exercised by the Financial Commissioner were clearly available to him under Sections 59 and 22 of the Act and he has not overstepped the same. 1513G H; 514A] (2) According to Section 31 of the Act read with Entry 51 of list II of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India. It is immaterial whether the liquor of which permits were obtained was consumed within the union territory of Chandigarh or was in existence in that territory or not. Duty is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof. [517D G] Kalyoni Stores vs The State of Orissa & ors. [1966] I S.C.R. 865 referred to.

l Appeal Nos. 1840 and 1841 of 1979. From the Judgment and Order dated 24.1.1979 of the Madras High Court in Appeal Nos 67 and 68 of 1975. J.Ramamurthy, K. Ram Kumar, N. Sridhar and Ms. Anjani for the Appellant. 891 A.T.M. Sampath, Ms. Pushpa Rajan, section Balakrishnan, Srinivasan and Ms. Revathy Raghavan for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. These appeals by grant of special leave are directed against the judgment of the Madras High Court dated 24.1.1979. Abdul Salam and his mother Razia Begum sold their agricultural lands measuring 3 acres and 25 acres respectively by executing two sale deeds Exhibits A.2 and A.1 dated 17.4.1962 in favour of Satyanarayana Rao and his father Mahadeva Rao. The consideration of the respective sale deeds was Rs.10,000 and Rs.75,000. On the same day, both the vendees took Rs.500 back and executed two separate agreements in favour of the respective vendors under Exhibits A.3 and A.4 giving a right of repurchase to the vendors at any time after 17.4.1969 but before 16.4.1972. Thereafter, Razia Begum and Abdul Salam executed agreements of sale in favour of the appellant T.M. Balakrishna Mudaliar on 4.1.1963, for a consideration of Rs.1,30,000 in all. The appellant also paid an amount of Rs.30,000 from time to time till April 1963 to Razia Begum and Abdul Salam towards the said agreements. For the balance of Rs.1,00,000 which was to be apportioned between Razia Begum and Abdul Salam, Exhibits A.10 dated 15.4.1963 and A.11 dated 15.3.1963 registered deeds of agreement of sale were executed by Razia Begum and Abdul Salam respectively for Rs.87,500 and Rs.12,500. The appellant paid further sums of Rs.4,000 under Exhibit A.10 to Razia Begum and Rs.1,000 under Exhibit A.11 to Abdul Salam and Exhibits A.3 And A.4 were handed over to the appellant. Mahadeva Rao died leaving behind his widow Pushpavathi Ammal and Satyanarayana Rao his son as his legal representatives. In view of the fact that Satyanarayana Rao and his mother Pushpavathi Ammal refused to execute the reconveyance deed, the appellant T.M Balakrishna Mudaliar filed two suits for specific performance of the agreements of reconveyance, delivery of possession and mesne profits in the Court of Subordinate Judge, Tirupattur. O.S. No.67 of 1969 was filed against Satyanarayana Rao, Pushpavathi Ammal and Abdul Salam and O.S.No.73 of 1969 was filed against Satyanarayana Rao, Pushpavathi Ammal and Razia Begum. In O.S. No.67 of 1969, the appellant deposited the amount of Rs.9,900 in the Court for payment to Satyanarayana Rao and Pushpavathi Ammal and Rs. 1600 for payment to Abdul Salam. In O.S. No.73 of 1969, the appellant deposited 892 Rs.74,500 for payment to Satyanarayana Rao and Pushpavathi Ammal and Rs.9,000 to Razia Begum. Both the above suits were decreed ex parte on 7.1.1974. Razia Begum and Abdul Salam did not file any application for setting aside the ex parte decree and as such the decrees passed against them became final. On an application filed by Satyanarayana Rao and Pushpavathi Ammal, the ex parte decrees passed against them were set aside and they were allowed to contest the Suit. The trial court after recording the evidence decreed the suit against Satyanarayana Rao and Pushpavathi Ammal also. Satyanarayana Rao and Pushpavathi Ammal aggrieved against the judgment of the trial court filed appeal Nos.67 and 68 of 1975 in the High Court. The High Court by its judgment dated 24.1.1979 allowed the appeals and set aside the judgments of the trial court and dismissed both the suits. T.M. Balakrishna Mudaliar, the plaintiff aggrieved against the judgments of the High Court has filed the aforesaid two appeals. The facts are almost admitted and there is no controversy as regards the execution of Exhibits A.4 and A.3 the deeds of reconveyance by Satyanarayana Rao and Mahadeva Rao in favour of Razia Begum and Abdul Salam respectively and Exhibits A.10 and A.11, registered deeds of agreement of sale by Razia Begum and Abdul Salam in favour of the appellant. The High Court however, took the view that under the terms and conditions set out in Exhibit A.10 and A.11 Razia Begum and Abdul Salam had not assigned the rights of reconveyance of the properties which 'they had got under Exhibits A.4 and A.3. According to the High Court, Exhibits A.10 and A.11 contemplated the performance of agreements of sale within a period of two years namely, 17.4.1969 to 16.4.1971, while under the terms and conditions of Exhibits A.3 and A.4 such period for reconveyance in favour of Abdul Salam and Razia Begum was three years i.e. from 17.4.1969 to 16.4.1972. According to the High Court this difference relating to the period was important from the point of view of considering the question whether the plaintiff could stand in the shoes of Razia Begum and Abdul Salam to enforce the agreement entered into between Razia Begum and Abdul Salam on the one hand and Satyanarayana Rao and Mahadeva Rao on the other. The High Court took the view that on account of such curtailment of the period in Exhibits A.10 and A.11 it was reasonable to infer that if the plaintiff did not enforce his rights under Exhibits A.10 and A.11 within the period of two years me 893 tioned therein, still Razia Begum and Abdul Salam in their own right would be in a position to enforce their right under Exhibits A.3 and A.4 because there was still one more year available to them to enforce the obligations undertaken by Satyanarayana Rao and Mahadeva Rao under Exhibits A.3 and A.4. The High Court further took the view that from the terms of the documents Exhibits A.10 and A.11, it was clear that no privity was intended between the plaintiff on the one hand and Satyanarayana Rao and Mahadeva Rao directly and it was only Razia Begum and Abdul Salam who could have enforced the terms of the contract of reconveyance under Exhibits A.4 and A.3. The High Court also took the view that the plaintiff did not fall within the expression 'representative in interest ' as contemplated under Section 15 clause (b) of the (hereinafter referred to as 'the Act ') and as such was not entitled to bring a suit for specific performance of the contract on the basis of the deeds of reconveyance Exhibits A.3 and A.4. It was also held that having regard to the language of Exhibits A.10 and A.11, no question of assignment of any right in favour of the plaintiff can arise. We have heard learned counsel for the parties and have thoroughly perused the record as well as the contents of Exhibits A.3, A.4 and A.10 and A.11 on which the entire case hinges. Exhibits A.3 and A.4 are agreements of resale executed on 17.4.1962 by Mahadeva Rao and Satyanarayana Rao in favour of Abdul Salam and Razia Begum respectively. Both the documents contained the terms of the resale at any time after 7 years, but within 10 years of the date of execution of the documents. It was clearly stipulated that after 17.4.1969 but before 17.4.1972, Mahadeva Rao and Satyanarayana Rao shall sign the sale deed on receiving the sum of Rs.74,500 in favour of Razia Begum and on receiving Rs.9,900 in favour of Abdul Salam. Both these documents Exhibits A.3 and A.4 do not contain any condition that such right was personal and was in favour of Abdul Salam and Razia Begum and such right could not be exercised by a stranger. The documents also do not contain any condition that such right could be exercised by the heirs of such persons or any other named persons and that such right could not be assigned by Abdul Salam and Razia Begum in favour of any other person. The High Court was wrong in taking the view that the plaintiff Balakrishna Mudaliar was not a representative in interest of Abdul Salam and Razia Begum even after such right being assigned in his favour by agreements Exhibits A.10 and A.11. Exhibits A.10 is a sale agreement for Rs.87,500 executed on 15.4.1963 by Razia Begum 894 in favour of the plaintiff Balakrishna Mudaliar. It has been clearly stated in the aforesaid deed that in order to raise funds for expenses required for the family and also for repayment of the amount of Rs.75,000 and recover back the properties from M/s Mahadeva Rao and Satyanarayana Rao and that Razia Begum (party No.1) had a right to have it reconveyed as per reconveyance agreement she agreed to assign such right in favour of Balakrishna Mudaliar (the second party). It further provided that Razia Begum had received Rs.4,000 and out of the balance amount of Rs.83,500, an amount of Rs.74,500 shall be paid to Mahadeva Rao and Satyanarayana Rao and the balance amount of Rs.9,000 shall be paid to Razia Begum. It was also mentioned that in case Mahadeva Rao and Satyanarayana Rao who had already executed the agreement of resale refuse to receive the sum of Rs.74,500 as per the said resale agreement, Razia Begum at her own expense shall get the sale deed executed by the said Mahadeva Rao and Satyanarayana Rao in her favour and then shall execute the sale deed in favour of the plaintiff. At the time of executing Exhibit A.10, a copy of the sale deed made in favour of Mahadeva Rao and Satyanarayana Rao and the agreement for resale executed by them in favour of Razia Begum was also handed over to the plaintiff. Exhibit A.11 has been executed by Abdul Salam in favour of the plaintiff and contains identical terms and conditions as in Exhibit A.10 except the difference of amount. Thus, a combined reading of the documents Exhibits A.3, A.4, A.10 and A.11, there remains no manner of doubt that Razia Begum and Abdul Salam had made an agreement to sell the properties in favour of the plaintiff and had also given a right to make the payment of such amount to Mahadeva Rao and Satyanarayana Rao which they were entitled under the terms and conditions of Exhibits A.3 and A.4, the agreements of resale made in favour of Abdul Salam and Razia Begum respectively. The plaintiff had filed a suit for specific performance of the agreement for sale impleading Razia Begum and Mahadeva Rao and Satyanarayana Rao as defendants in the one case and Abdul Salam and Mahadeva Rao and Satyanarayana Rao in another care and had also deposited the amount of consideration in Court which clearly proved that the plaintiff was always ready and willing to perform his part of the contract. In our view, there was no ground or justification for the High Court to dismiss the suits filed by the plaintiff. The High Court was wrong in taking the view that it was only Razia Begum and Abdul Salam who were entitled to get reconveyance from Mahadeva Rao and Satyanarayana Rao and the plaintiff was not entitled 895 to enforce such right by a suit for specific performance against Mahadev Rao and Satyanarayana Rao. The High Court further erred in holding that the restriction of the period during which the plaintiff could have got the sale deeds executed in his favour was two years while Razia Begum and Abdul Salam under Exhibits A.3 and A.4 could have exercised such right within a period of three years and such difference in the period deprived the plaintiff of his right to enforce the agreement of specific performance. Admittedly the plaintiff was exercising the right of specific performance of agreement of sale within the stipulated period of two years and we are unable to accept the reasoning of the High Court as to how the period of three years granted in favour of Razia Begum and Abdul Salam in any manner affected of took away the right of the plaintiff to bring a suit for specific performance. It may also be noted that an ex parte decree for specific performance of sale had become final against Razia Begum and Abdul Salam and so far as Mahadeva Rao and Satyanarayana Rao are concerned, they were bound to make a resale or reconveyance of the property in favour of Abdul Salam and Razia Begum as well as their assignee under Exhibits A.3 and A.4. So far as Mahadeva Rao and Satyanarayana Rao are concerned, they have not pleaded that they had not executed Exhibit A.3 and Exhibit A.4 or that Razia Begum and Abdul Salam had lost the right of repurchase or reconveyance of the property in question in their favour. The Privy Council in Sakalaguna vs Munnuswami, AIR 1928 PC 174 has held that the benefit of a contract of repurchase which did not show that it was intended only for the benefit of the parties contracting, could be assigned and such contract is enforceable. Beaumount C.J. in Vishweshwar vs Durgappa, AIR 1946 Bombay 339 held that the both under the common law as well as under Section 23 (b) of the , an option given to repurchase the property sold would prima facie be assignable, though it might also be so worded as to show that it was to be personal to the grantee and not assignable. On the particular facts of that case, it was held that the contract was assignable. In Sinnakaruppa vs Karuppuswami AIR 1965 Madras 506 it was held: "In our view, generally speaking, the benefits of a contract of repurchase must be assignable, unless the terms of the contract are such as to show that the right of repurchase 896 is personal to the vendor. In the latter case it will be for the person who pleads that the contract is not enforceable, to show that the intention of the parties thereto was that it was to be enforced only by the persons named therein and not by the assignee. ' In our view, the above statement of law appears to be correct. We have already held above that under the terms and conditions laid down in Exhibits A.3 and A.4, the right of repurchase was not given as personal to Razia Begum and Abdul Salam and they were entitled to assign such right and the plaintiff having got such right under Exhibits A.10 and A.11 was entitled to enforce such contract by filing a suit for specific performance. The plaintiff in the present case also falls within the meaning of representative in interest as contemplated under Clause (b) of Section 15 of the Act. On such assignment, the plaintiff appellant acquired a valid titled to claim specific performance. In the result, we allow these appeals with costs and set aside the Judgment of the High Court and restore and Judgments and decrees passed by the trial court. V.P.R. Appeal allowed.

On 17.4.1962, 'A ' and his mother `B ' sold their agricultural lands measuring 3 acres and 25 acres respectively by executing two sale deeds in favour of Respondent No.1 and his father for Rs.10,000 and Rs.75,000 respectively. On the same day, the respondents vendees, taking Rs.500 back, executed two separate agreements in favour of 'A ' and 'B ' giving them the right of repurchase at any time after 17.4.1969 but before 16.4.1972. On 4.1.1963, 'A ' and 'B ' executed agreements of sale in favour of the appellant for a consideration of Rs.1,30,000 in all. The appellant paid Rs. 30,000 till April, 1963 to 'A ' and 'B '. The appellant latter paid Rs. 12,500 to 'A ' and Rs.87,500 to 'B ' and the registered deeds of agreement of sale were executed by 'A ' and 'B '. Again a sum of Rs.1,000 was paid to 'A ' and Rs. 4,000 was paid to 'B ' by the appellant. 'A ' and 'B ' handed over the agreements executed by the respondent No.1 and his father in favour of 'A ' and `B ', to the appellant. Respondent No. 1 's father died leaving behind his widow and son, respondent No.1. They refused to execute the reconveyance deed. The appellant in the Court of Subordinate Judge filed two suits for specific performance of the agreements of re conveyance, delivery of possession and mesne profits one suit against the respondent No.1, his 889 mother and 'A ' and the other one against the respondent No.1, his mother and 'B '. In the first suit the appellant deposited the amount of Rs.9,900 in the Court for payment to respondent No.1 and his mother and Rs.1,600 for payment to 'A ' and in the other suit he deposited Rs.74,500 for payment to respondent No.1 and his mother and Rs.9,000 to 'B '. The suits were decreed ex parte. As IV and `B ' did not rile any application for setting aside the ex parte decree, the decree passed against them became final. Respondent No.1 and his mother filed an application to set aside the ex parte decree and the Court set aside the decree and allowed them to contest the suits. The suits were decreed against the respondent No.1 and his mother against which they riled appeals in the High Court. The High Court setting aside the decree and judgments of the trial Court allowed the appeals riled by the respondent No.1 and his mother. The plaintiff aggrieved against the judgments of the High Court preferred the present appeals by special leave before this Court. Allowing the appeals, this Court, HELD:1.01. A combined reading of the documents Exhibits A.3, A.4, A.10 and A.11, leaves no manner of doubt that 'A ' and 'B ' had made an agreement to sell the properties in favour of the plaintiff and had also given a right to make the payment of such amount to respondent No.1 and his father which they were entitled under the terms and conditions of Exhibits A.3 and A.4, the agreements of resale made in favour of 'A ' and `B ' respectively. The plaintiff had filed a suit for specific performance of the agreement for sale impleading 'B ' and respondent No.1 and his father as defendants in one case and 'A ' and respondent No.1 and his father in another case and had also deposited the amount of consideration in the Court which clearly proved that the plaintiff was always ready and willing to perform his part of the contract. There was no ground or justification for the High Court to dismiss the suits filed by the plaintiff. [894 E G] 890 1.02.The High Court was wrong, in taking the view that it was only IV and 'B ' who were entitled to get reconveyance from respondent No.1 and his father and the plaintiff was not entitled to enforce such right by a suit for specific performance against respondent No.1 and his father. [894 H] 1.03.The High Court further erred in holding that the restriction of the period during which the plaintiff could have got the sale deeds executed in his favour was two years while 'A ' and 'B ' under Exhibits A.3 and A.4 could have exercised such rights within a period of three years and such difference in the period deprived the plaintiff of his right to enforce the agreement of specific performance. [895 B] 1.04.The plaintiff was exercising the right of specific performance of agreement of sale within the stipulated period of two years and it is unable to accept the reasoning of the High Court as to how the period of three years granted in favour of 'Al and `B ' in any manner affected or took away the right of the plaintiff to bring a suit for specific performance. [895 C] 1.05.Under the terms and conditions laid down in Exhibits A.3 and A.4 the right of repurchase was not given as personal to 'Al and `B ' and they were entitled to assign such right and the plaintiff having got such right under Exhibits A.10 and A.11 was entitled to enforce such contract by riling a suit for specific performance. The plaintiff in the present case also falls within the meaning of representative in interest as contemplated under Clause (b) of Section 15 of the . On such assignment, the plaintiff appellant acquired a valid title to claim specific performance. [896 C] Sakalaguna vs Munnuswami, AIR 1928 PC 174; VisHweshwar vs Durgappa, AIR 1940 Bombay 339 and Sinnakaruppa vs Karuppuswami, AIR 1965 Madras 506, approved. [895 F]

s 1, 7, 8, 10, 53 and 76 of 1963. Petitions under Art 32 of the Constitution of India for the enforcement of Fundamental Rights. R.V. section Mani and K. R. Shama, for the petitioner (in W.P. Nos. 1 and 76 of 1963). R. V. section Mani and T. R. Y. Sastri, for the petitioner (in W.P. Nos. 7, 8, 10 and 53). A.V. Ranganadham Chetty and A. Y. Rangam, for the respondent (in the petitions). I.N. Shroff, for the interveners Nos. 1 and 5 (in all the petitions). M. C. Setalvad, N. section Bindra and R. H. Dhebar, for inter vener No. 2 (in W.P. No. 1 of 1.963). C. P. Lal, for intervener No. 3 (in W.P. No. 1 of 1963). R. H. Dhebar, for intervener No. 4 (in W.P. No. 1 of 1963). section V. Gupte, Additional Solicitor General, N. section Bindra and R. H. Dhebar, for intervener No. 6 (in W.P. No. 1 of 1963). 83 March 9, 1964. The Judgment of the Court was delivered by WANCHOO, J. These six petitions under article 32 of Constitution raise a common question about the constitution ality of the Madras Land Reforms (Fixation of Ceiling on Land Act, No. 58 of 1961 (hereinafter referred to as the Act), which was assented to by the President on April 13, 1962 and came into force on publication in the Fort St. George Gazette on May 2, 1962. The constitutionality of the Act is attacked on the ground that it violates articles 14, 19 and 31(2) of the Constitution. It is not necessary to set out in full the attack made on the constitutionality of the Act in these petitions. It will be enough if we indicate the two main attacks on the constitutionality of the Act under article 14. The first of these is with respect to section 5 of the Act which lays down the ceiling area. The second is on section 50 of the Act read with Sch. III thereof, which provides for compensation. It is urged that the Act is not protected under article 31 A of the Constitution and is therefore open to attack in case it violates article 14, 19 or 31. The petitioners in this connection rely on the judgment of this Court in Karimbil Kunhikoman vs State of Kerala(1). Before we consider the two main attacks on the constitu tionality of the Act we may briefly indicate the scheme of the Act. Chapter 1 is preliminary, Section 3 thereof provides for various definitions, some of which we shall refer to later. Chapter 11 deals with fixation of ceiling on land holdings. Section 5 thereof fixes the ceiling area. The other sections provide for determining surplus land, and s.18 provides for the acquisition of surplus land which vests in the Government free from all encumbrances. Chapter III provides for ceiling on future acquisition and restriction on certain transfers. Chapter IV provides for the constitution and functions of the land board. Chapter V provides for the constitution and functions of the sugar factory board. Chapter VI provides for compensation. Section 50 thereof read with Sch. III lays down the mode for determining compensation for the land acquired by the Government and other ancillary matters. Chapter VII provides for survey and settlement of lands in the transferred territory which came to the State of Madras by virtue of the States Reorganisation Act of 1956. Chapter VIII provides for cultivating tenants ' ceiling area. Chapter IX provides for exemption of certain lands from the application of the Act. Chapter X provides for land tribunals and Chapter XI for appeals and revision. Chapter XII provides for certain penalties and procedure while Chapter XIII provides for disposal of land acquired by the Government under the Act. Chapter XIV deals with miscellaneous provisions, including s.110, which provides for the framing of rules (1) [1962] Suppl. 1 S.C.R. 829. 84 The main purpose of the Act is to provide for a ceiling on land holdings, for determining surplus land which would be acquired by Government and for payment of compensation therefor. The Act is applicable to agricultural land as defined in section 3(22) and is mainly concerned with persons holding lands in ryotwari settlement or in any other way subject to payment of revenue direct to the Government. It is not in dispute that the Act is not protected under article 31 A of the Constitution and it is in this background that we shall consider the attack based on article 14 on the two main provisions of the Act relating to ceiling area under section 5 and compensation under section 50 read with Sch. III of the Act. It is first necessary to read certain definitions in s 3. Section 3(14) defines family as follows "family" in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her (i) minor sons and unmarried daughters; and (ii) Minor grandsons and unmarried grand daughters in the male line, whose father and mother are dead. " It is unnecessary to refer to the explanation of section 3(14), for present purposes. Section 3 (34) is in these terms: person ' includes any trust, company, family, firm, society or association of individuals, whether incorporated or not. " Section 3 (45) is as follows: " 'surplus land ' means the land held by a person in excess of the ceiling area and declared to be surplus land under sections 12, 13 or 14. " Section 5 is in these terms: "5. (1) (a) Subject to the provisions of Chapter VIII, the ceiling area in the case of every person and, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, the ceiling area in the case of every family consisting of not more than five members, shall be 30 standard acres (b) The ceiling area in the case of every family consisting of more than five members shall, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, be 30 standard acres together with an additional 5 standard acres for every member of the family in excess of five. (2) For the purposes of this section, all the lands held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be held by the family. 85 (3) (a) In calculating the extent of land held by a member of a family or by an individual person, the share of the member of the family or of the individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanthana family or a Nambudiri Illom shall be taken into account. (b) In calculating the extent of land held by a family or by an individual person, the share of the family or of the individual person in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company (other than a non agricultural company) shall be taken into account. Explanation For the purposes of this section (a) the share of a member of a family or of an individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanathana family or a Nambudiri Illom, and (b) the share of a family or of an individual person in the land held by a firm, society or association of individuals (whether incorporated or not), or by a company (other than a non agricultural company), shall be deemed to be the extent of land (i) which, in case such share is held on the date of the commencement of this Act, would have been allotted to such member, person or family had such land been partitioned or divided, as the case may be, on such date; or (ii) which, in case such share is acquired in any manner whatsoever after the date of the commencement of this Act, would be allotted to such member, person or family if a partition or division were to take place on the date of the preparation of the draft statement under sub section (1) of section 10. "(4). . . " It is unnecessary to consider the rest of section 5 for present purposes. The attack on section 5 (1) is that it is hit by article 14 inasmuch as it denies equality before the law or equal protection of law to persons similarly situate, and reliance is placed in this connection on the decision of this Court in Karimbil Kunhikoman(1). In that case this Court was considering the Kerala Agrarian Relations Act, 1961 (hereinafter referred to as the 86 [1962] Suppl. 1 S.C.R. 829. Kerala Act). The argument is that as in the Kerala Act, so in the present Act, the word "family" has been given an artificial definition which does not conform to any kind of natural families prevalent in the State, namely, Hindu undivided family, Marumakkattayam family, Aliyasanathana family or Nambudiri Illom, and that a double standard has been fixed in section 5(1) in the matter of providing ceiling. It is therefore urged that the ratio of that decision fully applies to the present Act. Therefore, section 5(1) should be struck down as violative of article 14 in the same manner as section 58 of the Kerala Act was struck down. We are of opinion that this contention is correct and the ratio of that case applies with full force to the present case. It was observed in that case that "where the ceiling is fixed . . by a double standard and over and above that the family has been given an artificial definition which does not correspond with a natural family as known to personal law, there is bound to be discrimination resulting from such a provision". In the present case also "family" has been given an artificial definition as will immediately be clear on reading. 3(14), which we have set out above. It is true that this definition of "family" in section 3(14) is not exactly the same as in the Kerala Act. Even so there can be no doubt that the definition of the word "family" in the present case is equally artificial. Further in the Kerala Act section 58 fixed a double standard for the purpose of ceiling; in the present case section 5(1)(a) fixes a double standard though there is this distinction that in section 5(1) the same ceiling is fixed in the case of a person as in the case of a family consisting of not more than five members, namely, 30 standard acres while in the Kerala Act, the ceiling fixed for a family of not more than five was double that for an adult unmarried person. But that in our opinion makes no difference in substance. The provision of section 5(1) results in discrimination between persons equally circumstanced and is thus violate of article 14 of the Constitution. This will be clear from a simple example of an undivided Hindu family, which we may give. Take the case of a joint Hindu family consisting of a father, two major sons and two minor sons, and assume that the mother is dead. Assume further that this natural family has 300 standard acres of land. Clearly according to the personal law, if there is a division in the family, the father and each of the four sons will get 60 standard acres per head. Now apply section 5(1) to this family. The two major sons being not members of the family because of the artificial definition given to "family" in section 3(14) of the Act will be entitled to 30 standard acres each as individuals and the rest of their holdings i.e. 30 standard acres in the case of each will be Surplus land. But the father and the two minor sons being an artificial family as defined in section 3(14) will be entitled to 30 87 standard acres between them and will thus lose 150 standard acres, which will become surplus land. This shows, clearly how this double standard in the matter of ceiling read with the artificial definition of "family" will result in complete discrimination between these five members of a natural family. Under the Hindu law each member would be entitled to onefifth share in the 300 standard acres belonging to the family. Under the Act however the two major sons will keep 30 standard acres each while the father and the two minor sons together will keep 30 standard acres which work out to 10 standard acres each. The two major sons will thus lose 30 standard acres each while the father and the two minor sons will lose fifty standard acres each. No justification has been shown on behalf of the State for such discriminatory treatment resulting in the case of members of a joint Hindu family; nor ;.ire we able to understand why this discrimination which clearly results from the application of section 5 (1) of the Act is not violative of article 14 of the Constitution. Examples can be multiplied with reference to joint Hindu families which would show that discrimination will result on the application of this provision. Similarly we are of opinion that discrimination will result in the case of Marumakkattayam family, Aliyasanthana family and a Nambudiri Illom, particularly in the case of the former two where the husband and wife do not belong to the same family. We are clearly of opinion that as in the case of section 58 of the Kerala Act so in the case of section 5 (1) of the Act discrimination is writ large on the consequences that follow from section 5(1). We therefore hold that section 5(1) is violative of the fundamental right enshrined in article 14 of the Constitution. As the section is the basis of Chapter 11 of the Act, the whole Chapter must fall along with it. Next we come to the provisions as to compensation contained in section 50 read with Sch. III of the Act. Here again we are of opinion that the decision of this Court in Karimbil Kunhikoman 's(1) case fully applies to the scheme of compensation provided in the Act which is as discriminatory as was the scheme in the Kerala Act. Learned counsel for the respondent however contends that Sch., III does not provide for any cut in the purchase price as was the case in the Kerala Act, and therefore the provisions in the Act are not discriminatory. If we look at the substance of the matter, however, we find that there is really no difference between the provisions for compensation in the Kerala Act and the provisions in respect thereof in the Act, though the provisions in the Act are differently worded. What was done in the Kerala Act was to arrive at the figure of compensation on certain principles, and a cut was then imposed on the figure thus arrived at and this cut pro gressively increased by slabs of Rs. 15,000. In the present [1962] Suppl. 1 S.C.R. 829. 88 case , a converse method has been adopted and the provision is that first the net annual income is arrived at and thereafter compensation is provided for slabs of Rs. 5,000 each of net income. For the first slab of Rs. 5,000, the compensation is 12 times the net annual income, for the second slab of Rs. 5,000 it is II times, for the third slab of Rs. 5,000 it is ten times and thereafter it is nine times. Let us now work out this slab system. Take four cases where the net annual income is respectively Rs. 5,000, Rs.10,000, Rs. 15,000 and Rs. 20,000. The firstperson whose net annual income is Rs. 5,000 will get Rs.60,000 as compensation, the second person whose net annualincome is Rs. 10,000 will et Rs. 1,15,000, the third personwith a net annual income of Rs. 15,000 will get Rs. 165,000 and the person with a net annual income of Rs. 20,000 will et Rs. 2,10,000. If the same multiplier had been applied as in the case of the first slab of Rs. 5,000 to the other three slabs also, these persons would have got compensation of Rs. 1,20,000, Rs. 1,80,000 and Rs. 2,40,000. This will show that in effect there is a cut of about 4 per cent on the total compensation which corresponds to the purchase price in the Kerala Act in the case of a person with a net annual income of Rs. 10,000, of about 8 per cent in the case of a person with a net annual income of Rs. 15,000 and about 12 per cent in the case of a person with a net annual income of Rs. 20,000. Though the manner of arriving at the total com pensation is ostensibly different from that provided in the Kerala Act, its effect is the same, namely, as the total net income goes up after the first slab of Rs. 5,000 there is a progressive cut in the total compensation just as was the case in the Kerala Act. The argument that the cut is justified on the same basis as higher rates of income tax on higher slabs of income has already been rejected by this Court in Karimbil Kunhikoman 's case(1). Therefore, for the reasons given in that case, we are of opinion that the provisions contained in section 50 read with Sch. III of the Act with respect to compensation are discriminatory and violate article 14 of the Constitution. Sections 5 and 50 are the pivotal provisions of the Act, and if they fall, then we are of opinion that the whole Act must be struck down as unconstitutional. The working of the entire Act depends on section 5 which provides for ceiling and section 50 which provides for compensation. If these sections are unconstitutional, as we hold they are, the whole Act must fall. We therefore allow the petitions and strike down the Act as unconstitutional. The petitioners will get their costs from the State of Madras one set of hearing fee. Petitions allowed. (1) [1962] Suppl. 1 S.C.R. 829.

The father of the appellant owned considerable agricultural property in Pakistan and he with the members of his family moved over to India on partition. The appellant 's father had some unsatisfied claim for allotment and on December 29. 1955 he was allotted some plots in Urban area within a certain municipality. The appellant 's father died in 1952 and the allotment made was actually to the appellant in lieu of the claim of his father. On the allotment being made, a sanad was issued to the appellant by the Managing Officer. When the appellant tried to take possession of these lands, disputes were raised by respondents Nos. 4 and 5. These respondents moved the Assistant Settlement Commissioner for cancellation of the allotment on the ground that these disputed plots were within an "urban area" within the meaning of r. 2(h) of the Displaced Persons, Compensation and Rehabilitation Rules, 1955 and, therefore, the allotment to the appellant was contrary to law. The Assistant Settlement Commissioner accepted the contention of the res pondents and allowed the appeal and cancelled the allotment. The appellant then applied to the Chief Settlement Com missioner in revision. He rejected the petition. Then the appellant moved a petition under articles 226 and 227 of the Constitution before the High Court. This petition was also dismissed. the High Court granted certificate of fitness under article 133 of the Constitution and hence the appeal. Held:(i) Where an order making an allotment was set aside by the Assistant Commissioner or Settlement Commissioner the title which was obtained on the basis of the continuance of that sanad or order also fell with it. Shri Mithoo Shahani vs Union of India, ; , relied on. (ii)The contention of the appellant that r. 2(h) of the Displaced Persons Compensation and Rehabilitation Rules, 1955, was unconstitutional as contravening article 14 of the Constitution must fail. This contention is based on the basis of the proviso to Rule 2(h). Rule 2(h) was framed under section 40 of the Act. This rule along with other rules came into force on May 21, 1955. The allotment was made to the appellant on December 29, 1955 and the Sanad was issued two days later. In other words the allotment in favour of the appellant was after the rule came into force and was not one "already made" as stated in the proviso to r. 2(h). Therefore, if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and the proviso, had no application. 193 The discrimination is said to consist in the rule having drawn a dividing line at the date when it came into force, for determining whether the allotment was valid or not. Such a contention is patently self contradictory. Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alternation in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which cannot be accepted.

Civil Appeals Nos. 76 to 80 of 1971 From the Judgment and orders dated the 17th October, 1968 of the Madhya Pradesh High Court in Misc. Petitions No. 277, 279 to 282 of 1966. G. C. Sharma, P. L. Juneja and section P. Nayar, for the appellant. S, Chowdhury, Leila Seth and U. K. Khaitan, for respondent. The Judgment of the Court was delivered by FAZAL ALI, J. These appeals are by Income tax officer, 'A ' Ward, Indore, against the judgment of the Madhya Pradesh High Court and involve a question of law regarding the interpretation of section 220 sub sections (2) and (3) of the Income tax Act, 1961. In order to understand the scope and ambit of the question involved, it may be necessary to mention a few facts leading to these appeals. The respondent firm carries on the business of manufacturing cloth. In 1947 the then Maharaja of Gwalior granted to the firm exemption from tax for a period of twelve years from the date when the firm started its factories. Under the Part States (Taxation Concessions) Order, 1950 the Commissioner of Income tax of the region concerned approved of the exemption only to the weaving division of the respondent for ten years, but deferred decision regarding the staple fibre division until the ' factory started functioning in 1954. The Commissioner was approached again for granting exemption but he refused to do so. The respondent thereafter moved the Hi h Court of Madhya Pradesh for cancelling the order of the 857 Commissioner refusing exemption. The writ petition before the High Court succeeded and the respondent 's right to exemption was upheld by the High Court. Thereafter the Revenue filed an appeal to this Court which was allowed and by its order dated April 28, 1964 reported in this Court reversed the decision of the High Court and maintained the order of the Commissioner refusing exemption. As a result of the cancellation of; the exemption, a huge amount of income tax became due from the respondent, and the provisional assessments made for the years 1959 60 to 1965 65 reached the aggregate amount of over Rs. 6.60 crores which was payable by the firm was actually demanded from the respondent. In fact the effect of the order of this Court was that the amount exempted became payable at once and was according demanded from the respondent but the respondent instead of paying the amount tried to negotiate with the Revenue for certain concessions. In this connection a series of correspondence followed between the respondent and the Income tax `Department including a letter which was written by the assessee on December 26, 1964 by which the assessee paid a sum of Rs. 3 crores and wanted the balance of Rs. 3.60 crores to be paid in instalments. The assessee further undertook to pay interest on the arrears at the rate ' of 5% per annum, even though under sub s (2) of section 220 of the Income tax Act, 1961 hereinafter referred to as 'the Act he was required` to pay interest at the rate of 4% only. In view of these favourable terms offered by the assessee, the Income tax officer acceded to its request by his letter `dated January 16, 1965. The assessee had agreed to pay the arrears in the following manner: Rs. 1,00,00,000 by March 15, 1966. Rs. 1,20,00,000 by March 15, 1967. Rs. 1,34,76,000 by March 15, 1968. Soon after the request of the assessee was granted by the Income tax officer, sub section (2) of section 220 of the Act was amended by the Finance Act, 1965 by which the rate of interest was increased from 4 to 6% per annum. In view of this amendment, the Income tax Officer by his letter dated January 10,1966 informed the assessee that on the unpaid balance of tax arrears the respondent would be liable to pay interest at the rate of 6% per annum with effect from April 1, 1965 instead of 5% as agreed to by the Income tax officer in his previous letter. The Income tax officer pointed out that this course was necessitated in view of the amendment made by the Finance Act, 1965. Consequently a notice of demand under section 156 of the Act was served on the respondent which resulted in his filing writ petitions before the High Court with the result mentioned above. The main point urged in the petitions before the High Court by the respondent was that the Income tax officer having acceded to the request of the assessee a settlement between the parties was arrived at to pay the balance of arrears at the rate of interest at 5% per annum and it was not open to the Income tax officer to vary that 858 rate to the prejudice of the assessee even in spite of a change in the rate of interest by the Finance Act 1965, because a vested right could not be taken away by a statute which in terms did not apply retrospectively. This plea appears to have found favour with the High Court, though not on the ground expressly taken by the respondent. The High Court found that in view of the notice of demand the liability of the assessee to pay the arrears arose only after the expiry of 35 days and this period had expired before the Finance Act, 1965 amending section 220(2) of the Act and therefore the Revenue had no jurisdiction to demand payment of the arrears at the rate of 6% interest. Thus it would appear that the High Court actually decided the case on a point which was not raised by the respondent in his petition but after making out a new case made out at the time of arguments and without giving any opportunity to the Revenue to rebut the same. The High Court has written a detailed judgment regarding the time as to when the liability of the assesse to where a notice of demand under section 156 of the Act is issued would arise. It is, however, not necessary for us to consider the reasons given by the High court in detail because in the view that we take we find that the basis on which the High Court has decided this case is wholly irrelevant and is not at all germane to the issue that was involved. It was not a case of a notice of demand under section 156 of the Act simpliciter, but the admitted position was that in view of the decision "f the Supreme court the respondent was in arrears of tax and had to pay heavy amounts of over Rs. 6.6 crores. The respondent voluntarily paid the amount of Rs. 3 crores and requested the Income tax officer to allow it to pay the balance in instalments and Persuaded the Income tax officer to accept the request even by agreeing to pay a higher rate of interest of 5% than the rate prescribed under section 22()(2) of the Act. The liability to pay the arrears was never disputed and the only dispute between the parties was as to rate of interest that was payable. Section 22n, sub sections ( '2) and (3) run thus: "(2) If the amount specified in any notice of demand under section 156 is not paid within the period limited under sub section (1), the assessee shall be liable to pay simple interest at four per cent per annum from the day commencing after the end of the period mentioned in sub section (1). Provided that, where as a result of an order under section 154. Or section 155, or section 250, or section 254, or section 260 or section 262, or section 264. the amount on which inter st was payable under this section had been reduced. the interest shall be reduced accordingly and the excess interest paid, if any, shall be refunded. (3) Without prejudice to the provisions contained in sub section (2), on an application made by the assessee before 859 the expiry of the due date under sub section (1), the Income tax officer may extend the time for payment or allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case. " The fact that the arrears were demanded from the assessee is not disputed as would appear from the statement made by the respondent in paragraph 2 of the writ petition filed before the High Court where it was averred thus: "Subsequently when assessments for the assessment years 1959 60 to 1964 65 were provisionally made, a huge amount aggregating to over Rupees six and a half crores became payable and was demanded from the petitioner. " In these circumstances, therefore, the conditions precedent to the application of subs. (2) of section 220 of the Act were undoubtedly fulfilled, in this case. It would be seen that before the assessee entered into correspondence with the Revenue, the rate of interest prescribed under sub section (2) of section 220 was only four per cent and yet the assessee offered to pay a higher rate namely 5% per annum is he was allowed to pay the arrears in instalments. This request of the assessee was accepted by the Income tax officer on January 16, 1965 when there was no amendment in the provisions contained in section 220(2) of the Act and the order passed by the Income tax officer must be construed as one made under sub section (3) of section 220 of the Act. It was suggested before the High Court that the order of the Income tax officer amounted to an irrevocable agreement which could not be varied merely because the rate of interest contained in sub section (2) of section 220 of the Act was enhanced. Mr. section C. Choudhry learned counsel for the respondent, however, has fairly conceded that there was no question of an agreement or settlement because section 220(3) does not empower the Income tax officer to enter into agreement or settlement in order to bind the Revenue. We find ourselves in complete agreement with this view. Section 220(3) merely empowers the Income tax officer to extend the time for payment or allow payment by instalments on such conditions as he may impose. In the instant case the Income tax officer merely exercised his powers under sub section (3) of section 220 by imposing the condition that the assessee shall be allowed to pay the arrears by instalments if he paid interest at the rate of 5% per annum offered by him. What is important however, is that sub section (3) is not independent of sub section (2) but is inter connected with it. The words 'without prejudice to the provisions contained in sub section (2) ' clearly show that any order passed by the Income Tax officer under sub section (3) must neither be inconsistent with nor prejudicial to the provisions contained in sub section In other words, the Position is that although sub section (3) is an independent provision the power under this sub section has to be exercised subject to the terms and conditions mentioned in sub section (2) so far as they apply to the facts mentioned in sub section Thus if sub section (2) of section 220 provided that the rate of interest chargeable would be 860 four per cent per annum any order passed under sub section (3) could not vary that rate, and if it did, then the order to that extent would stand superseded. The argument o the assessee. is that sub sections (2) and (3) of section 220 were independent provisions which operated in fields of their own. We are, however, unable to accept this somewhat broad proposition of law. Sub sections (2) and (3) form part of the same section, namely section 220, and are therefore closely allied to each other. It is no doubt true that the two sub sections deal with separate issues but the non obstante clause of sub section (3) clearly restricts the order passed under sub section (3) to the conditions mentioned in sub section (2) of section 220 of the Act. Further more, it is the Finance Act which fixes the rate of interest payable under sub section (2) of section 220 and it is common knowledge that every year the Finance Act makes important amendments in the rates payable under the various provisions of the Income tax Act. In these circumstances, therefore, it is not within the competence of the Income tax officer to vary the rate of interest fixed by the Finance Act under sub section (2) of section 220 from time to time. We are fortified in this view by a decision of this Court in Esthuri Aswathaiah vs Commissioner of Income tax, Mysore(1) where this Court observed thus "The Income tax officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By section 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. " As we have already pointed out sub section (3) of section 220 of the Act does not empower the officer to enter into and indefeasible settlement with the assessee or to clothe the Income tax officer with any such power so as to vary the statutory inhibition contained in sub section Any order which is passed under sub section (3) would be subject to the rate of interest mentioned in sub section (2) and as soon as the rate mentioned in sub section (2) is varied or enhanced by the Legislature it would have to be read into sub section (2) from the date of the amendment and any order passed under sub section (3) would be subject to the rate so fixed. In fact if this is not the position, then the order passed under sub section (3) being prejudicial to sub section (2) becomes illegal and invalid and the Income tax officer exceeds the limits of his jurisdiction in passing such an order. In the instant case the Finance Act of 1965 became effective form April 1, 1965 and the Income tax officer in his letter dated (1) ,416. 861 January 10,, 1966, to the assessee had merely given effect to the legal provisions of the Finance Act by insisting that in view of the variation in the rate of interest under sub s (2) of section 220 the assessee would have to pay interest at the rate of 6% per annum only from April 1, 1965. There was absolutely no question of the Finance Act operating retrospectively, near there was any question of the Finance Act taking away a vested right which had accrued to the assessee because we have already held that the order of the Income tax officer under sub section (3) of section 220 does not amount to any final settlement or agreement. There is yet another view of the matter. In the present case the assessee himself wanted extension of time for being allowed to pay the arrears by instalments. The assessee could be permitted to seek this indulgence under sub section (3) of section 220 only within the four corners of the law and not outside the same. The moment the Finance Act, 1965, came into operation and the rate of interest in sub section (2) of section 220 was increased from 4% to 6% per annum any order passed by the Income tax officer would automatically operate in accordance with the Finance Act with effect from April 1 1965. This is what has happened in the present case. Thus it is manifest that the Income tax Officer could not have passed any order against the statutory provisions of sub section (2) of section 220 either with or without the consent of the assessee. Even the order of the Income tax officer dated January 16, 1965, accepting the offer of the assessee to pay interest at the rate of 5% per annum was legally invalid, because if the rate of interest fixed by the statute was 4% the parties could not be allowed to contract out of the statute. The only relief, therefore, which the assessee could get is that it was liable to pay interest at the rate of 4% and not 5% per annum for the period January to march 1965. But from April 1, 1965 it was bound to pay interest at the rate of 6% per annum as found by the income tax officer. Reliance was placed by Mr. G. C. Sharma appearing for me Revenue on a decision of the Orissa High Court in Biswanath Ghosh vs Income tax Officer, Ward and Another(1) where a Division Bench of that Court observed as follows: "As we find, the Income tax officer has charged interest at 6 per cent until the provision was amended to enhance the rate of interest at 9 per cent. In fact in the counter affidavit given by the Income tax officer in O.J.C. No. 195 of 1972 that position has been clarified. Mr. Pasayat for the petitioner claims that the rate of interest must he only at 6 per cent in view of the fact that default in this case had occurred prior to the amendment. It is only here that he relies upon the decision of the Madhya Pradesh High Court in Gwalior Rayon Silk Manufacturing (Weaving) Co. vs Income tax Officer (1) , 374. 862 That was a case in respect of penalty under section 220(2) of the Act and the court took the view that the rate of interest as provided on the date when default occurred would apply to the facts of the case. We do not agree with the view expressed in the said decision. It is true that central Act 27 of 1967 has no retrospective effect, but in respect of continuing default after the amendment, in our view, the rate of interest as provided thereunder would apply." The Orissa High court expressly dissented from the view taken by the Madhya Pradesh High Court in the present judgment under appeal and we find ourselves in complete agreement with the view taken by the orissa High court. We have already pointed out, the Madhya Pradesh High Court did not at all go into the question which really arose in this case with respect to the payment of interest at the rate of 6 per cent in accordance with the Finance Act, 1965 . For these reasons, therefore, the appeals are allowed and the order of the High Court is set aside with slight modification, namely In that the assessee shall pay interest on the entire amount of arrears the rate of 4 per cent per annum only during the period January to March 1965. So far as rest of the period is concerned, the order of the Income tax officer directing the assessee to pay interest at the rate of 6 per cent per annum is restored. In view of the peculiar circumstances of the case, however, we leave the parties to bear their own costs throughout. P.B.R. Appeals allowed.

Sub section (2) of 9. 220 of the Income tax Act. 1961 makes an assessee liable to pay simple interest at 4% p.a. if the amount specified in any notice of demand under section 156 was not paid within the period limited under sub section Sub section (3) states that without prejudice to the provisions contained in sub section (2) on an application made by the assessee before the expiry of the due date under sub section (1) the Income tax officer may extend the time for payment or allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case. Out of a large sum of money which became payable by the respondent as income tax, half the amount was paid and in respect of the remaining half which was allowed to be paid in three instalments, the respondent had under taken to pay interest at the rate of 5% p.a. even though section 220(2) of the Income tax Act, 1961 prescribed 4% as the rate of interest payable on such arrears. The Income tax Officer accepted the term. By the Finance Act, 1965 the rate of interest payable under this section was raised from 4% to 6% p.a. On receipt of a notice from the Income tax officer, that on the unpaid balance of the tax arrears the company was liable to pay interest at 6% p.a., the respondent moved the high Court contending that it was not open to the Income tax officer to vary the rate from 5% to 6% even in spite of the change made by the Finance Act, 1965, in that a vested right could not be taken away by a statute which did not apply retrospectively. The High Court allowed the writ petition. On appeal to this Court it was contended by the respondent that sub sections (2) and (3) of section 220 were independent provisions which operated in fields of their own. Allowing the appeal to this Court, ^ HELD: (1) Sub sections (2) and (3) form part of the same section namely, section 220 and are therefore closely allied to each other. It is true that the two sub sections deal with separate issues but the non obstante clause of sub section (3) clearly restricts the order passed under sub section (3) to the conditions mentioned in sub section (2) of section 220 of the Act. [860 B] (2) It is the Finance Act which fixes the rate of interest payable under sub section (2) of section 220. It is not within the competence of the Income tax officer to vary the rate of interest fixed by the Finance Act under subs. (2) of section 220 from time to time. [860C D] Esthuri Aswathaiah vs Commissioner of Income fax Mysore and 416, followed. (3) Sub section (3) of section 220 does not empower the Income tax officer to enter into any indefeasible settlement with the assessee or to clothe the Income tax officer with any such ,power so as to vary the statutory inhibition contained 856 in sub section Any order which is passed under sub section (3) would be subject to the rate of interest mentioned in sub section (2) and as soon as the rate mentioned in sub section (2) is varied or enhanced by the legislature it would have to be read into sub section (2) from the date of the amendment and any order passed under sub section (3 ) would be subject to the rate so fixed. If this is not the position then the order passed under sub section (3) being prejudicial to sub section (2) becomes illegal and invalid and the Income tax officer exceeds the limits of his jurisdiction in passing such an order. [860F H] In the instant case there was no question of the Finance Act operating retrospectively nor was there any question of the Finance Act taking away a vested right which had accrued to the assessee because the order of the Income tax officer under sub section (3) of section 220 does not amount to any final settlement or agreement. The notice had merely given effect to the legal provisions of the Finance Act. [861 B] (4) In is manifest that the Income tax officer could not have passed any order against the statutory provisions of sub section ( 2) of section 220 either with or without the consent of ' the assessee. Even the order of the Income tax officer accepting the Offer. Of the assesse to pay interest at the rate of 5% p.a. was legally invalid because if the rate of interest fixed by the statute was 4% the parties could not be allowed to contract out of the statute. The only relief which the assessee could get was to pay interest at 4% p.a. prior to the Finance Act, 1965 and at 6% after 1st April, 1965. [861D E] Biswanath Ghosh vs Income tax officer, Ward, B. and Another , 374, approved.

328 of 1951.Petition under article 32 of the Constitution for issue of writs in the nature of certiorari, prohibition and mandamus. The facts appear in the judgment. The petitioner in person. C.K. Daphtary, Solicitor General of India, (J. B. Dadachanji, with him) for the respondent. December 21. The Judgment of the Court was delivered by PATANJALI SASTRI.C.J. This is a petition under article 32 of the Constitution for the enforcement of the petition er 's fundamental rights under article 19 (1) (f) and article 31(1) alleged to have been violated by the Central Bank of India Ltd., a company incorporated under the Indian Compa nies Act, 1882, and having its registered office at Bombay, (hereinafter referred to as "the Bank"). It appears that the petitioner held five shares in the Share capital of the Bank which sold those shales to a 51 392 third party in purported exercise of its right of lien for recovery of a debt due to it from the petitioner, and the transfer was registered in the books of the Bank in the year 1937. The petitioner thereupon instituted a series of pro ceedings in the High Court at Bombay on its original and appellate jurisdiction challenging the validity of the said sale and transfer. The latest of these proceedings was a suit filed against the Bank in 1951 wherein the plaint was rejected on 2nd March, 1951, under Order 7, Rule 11 (d), of the Code of Civil Procedure as barred by limitation. The petitioner now prays that all the adverse orders made in the previous proceedings be quashed and the said High Court be directed to have "the above suit set down to be heard as undefended and pronounce judgment against the respondent or to make such orders as it thinks fit in relation to the said suit". It may be mentioned here that though the aforesaid order rejecting the petitioner 's plaint was appealable, the petitioner did not prefer an appeal on the somewhat extraor dinary ground that "the appeal if filed could not be heard by the Judges of the said Court as all of them were disqual ified from hearing such appeal" either because of their interest in the Bank or because of their prejudice against him. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither article 19 (1) (f) nor article 31 (1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to free dom" and by clause (1) assures to the citizen certain funda mental freedoms including the freedom "to acquire, hold and dispose of property" subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in clauses (2) to (6). The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regu late private rights in the public interest, 393 Violation of rights of property by individuals is not within the purview of the article. The position is no better under article 31 (1). The petitioner has urged that clause (1) should be construed apart from and independently of the rest of the article and, if so construed, its language is wide enough to cover in fringements of rights of property by private individuals. He laid emphasis on the omission of the word "State" in clause (1) while it was used in clause (2) of the same article as well as in many other articles in Part III. Referring to entry No. 33 of the Union List, entry No. 36 of the State List and entry No, 42 of the Concurrent List of the Seventh Schedule to the Constitution, he also argued that, while these entries read with article 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or requisitioning of property for the purposes of the Union or the State as the case may be. no power was conferred to make laws regarding "deprivation of property" by the State, so that the "deprivation" contemplated in clause (1) could only be deprivation by individuals. Sub section (1) of section 299 of the Government of India Act, 1935, corresponding to clause (1) of article a 1 was, it was pointed out, omitted in the draft article 19 (later numbered as article 81) which retained in a modified form only the provision contained in sub section (2) of that section relating to compulsory acquisition of property for public purposes. But, clause (1) was subsequently restored and article was enacted in its present form as recommended in Drafting Committee 's Report and this, it was claimed, showed that clause (1) was intended to operate as a distinct provi sion apart from clause (2). We see no force in any of these arguments. In support of the argument that clause (1 ) should be construed in isolation from the rest of the article, the petitioner relied on certain observations of our learned brother Das in Chiranjit Lal vs The Union of India (1), where the view was expressed that clause (1)enunciated the general principle that no person should be deprived (1) [1950] S.C,R,. 860. 394 of his property except by authority of law and laid down no condition for payment of compensation, while clause (2) dealt with deprivation of property brought about by acquisi tion or taking possession of it and required payment of compensation. In other words, deprivation referred to in clause(1) must be taken to cover deprivation otherwise than by acquisition or requisitioning of property dealt with in clause (2). We consider it unnecessary for the purpose of the present petition to go into that question. Even assuming that clause (1) has to be read and construed apart from clause (2), it is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty. There is no express reference to the State in article 21. But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words "except by procedure established by law" plainly exclude such a suggestion. Similarly, the words "save by authority of law" in clause (1) of article 31 show that it is a prohibition of unauthorised governmental action against private property, as there can be no question of one private individual being authorised by law to deprive anoth er of his property. The argument based on the entries in the Lists is fallacious. It is not correct to suggest that, merely be cause there is no entry in the Lists of the Seventh Schedule relating to "deprivation of property" as such, it is not within the competence of the legislatures in the country to enact a law authorising deprivation of property. Such a law could be made, for instance, under entry No. 1 of List II, entry No. 1 of List II or entry No. 1 of List III. Article 31 (1) itself contemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power. Nor does the legislative history of the article lend any support to the petitioner 's contention. Section 299 395 (1) of the Government of India Act, 1935, was never inter preted as prohibiting deprivation of property by private individuals. Its restoration, therefore, in the same form in article 31, after omission in the original draft article 19, could lead to no inference in support c. of the peti tioner 's contention, which indeed proceeds on the fundamen tal misconception that article 19(1)(f) and article 31 (1), which are great constitutional safeguards against State aggression on private property, are directed against in fringements by private individuals for which remedies should be sought in the ordinary law. In this view it is unnecessary to deal with certain other objections to the maintainability of the petition raised by the Solicitor General on behalf of the Bank. The petition is dismissed. We make no order as to costs. Petition dismissed.

Article 19(1)(f) of the Constitution is clearly intended to protect the freedom to acquire, hold and dispose of property against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Similarly, article S1(1) provides a safe guard against deprivation of property by the State except by procedure established by law. Violation of rights of property by private individuals is not within the purview of those articles. A person whose rights of property are infringed by a private individual must therefore seek his remedy under the ordinary law and not by way of an application under article 32.

Appeal No. 367 of 1969. Appeal by special leave from the judgment and order dated October 28, 1968 of the Madhya Pradesh High Court in Misc. Civil Case No. 188 of 1967. I. N. Shroff, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Hegde, J. This appeal by special leave arises from the deci sion of the Madhya Pradesh High Court in a reference under section 44 of the Madhya Pradesh Sales Tax Act, 1959. The reference was made by the Board of Revenue. After stating the case, the Board of Revenue referred the following question to the High Court for its opinion. "Whether on the facts and circumstances of the case the Commissioner of Sales Tax acted illegally in exercising his powers ' of revision under section 39(2) of the Madhya Pradesh General Sales Tax Act, 1958 in respect of the assessment order dated 28 12 1,961 which was passed in respect of the returns submitted on 30 1 1958 and 17 6 1958 and on the basis of the notice in form XI issued on 29 8 1961 ?" The High Court answered that question in the affirmative and in favour of the assessee. Aggrieved by that order, the Commissioner of Sales Tax, Madhya Pradesh has come up in appeal to this Court. The assessee, M/s. Amarnath Ajitkumar was a registered dealer under the Madhya Bharat Sales Tax Act, Samv. 2007. For the period from July 1, 1957 to 31st March, 1958, the period with which we are concerned in this appeal, the assessee submitted its return for the second and third quarters on January 30 , 1958 and for the fourth quarter on 17th June 1958. These returns were made under section 9(3) of the . The sales tax concerned in the present case was that leviable under the . But the procedure to by adopted in the matter of assessment and collect ion was that prescribed in the Madhya Bharat Sales Tax Act Samv. The Madhya Bharat Act was repealed by the Madhya Pradesh General Sales Tax Act, 1959, which came into force on April 1, 1959. Thereafter the Assistant Commissioner of Sales Tax, issued a notice in form XI of the Madhya Pradesh Sales Tax (Central) Rules, 1959 on August 29, 1961. That Officer passed the assessment order on November 28, 1961. On October 30, 830 1964, the Commissioner of Sales Tax initiated proceedings under section 39(2) of the M.P. Sales Tax Act, 1959 for revising the assessment made. After notice to the dealer the Commissioner on April 15, 1965 revised the assessment and enchanced the same by a sum of Rs. 993.06 paise. The assessee 's appeal to the Board of Revenue was dismissed on June 20, 1966. Both before the Commissioner as well as the Board of Revenue, the assessee contended that as the assessment related to the period when Madhya Bharat Sales Tax Act, Samv. 2007 was in force, the revision of that assessment is governed by section 12(1) of that Act and not section 39(2) of the M.P. Act, 1959. It was urged on its behalf that under the Madhya Bharat Act, the Commissioner could not have revised the order of assessment after the expiry of two years after the assessment was made. Hence the Commissioner was not competent to revise the assessment. The Commissioner as well as the Board of Revenue rejected that contention. They came to the conclusion that it was open to the Commissioner to take action under S.39(2) of the M.P. General Sales Tax Act, 1959 in the matter of revising the assessment. The High Court did not agree with that view. It held that in view of section 52 of the 1959 Act, the governing provision in the matter of revising the assessment was section 12(1) of the Madhya Bharat Act. The only question that we have to decide is whether in the facts and circumstances of the case, the Commissioner could have exercised his power under section 39(2) of the M.P. Sales Tax Act, 1959. Section 12(1) of the Madhya Bharat Act provides "The, Commissioner may in his discretion at any time suo moto or being moved by the assessing authority, call for and examine the records of any proceedings under this Act and if he considers any order is illegal or improper or erroneous in so far as it is pre judicial to the interests of the revenue he may pass orders as he thinks fit : Provided that no order shall be passed prejudicial to a dealer without giving him an opportunity of hearing; Provided further that the Commissioner shall not revise an order which has been made more than two years previously." From the second proviso, it is clear that the Commissioner is precluded from revising an order which had been made more than two years previously. That proviso did not lay down any rule of limitation. But it took away the power of the Commissioner 831 to revise any assessment after the prescribed period. Thereafter the assessment became final and conclusive as against the Department as well as the assessee, unless it was liable to be changed under some other provision of the Madhya Bharat Act. Section 39(2) of the M.P. Sales Tax Act of 1959 says "The Commissioner may of his own motion or on information received call for and examine the record of any proceeding under this Act if he, considers that any order passed therein by any person appointed under section 3 to assist him is erroneous in so far as it is prejudicial to the interests of the revenue, he may after giving the dealer an opportunity of being heard and. after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment; Provided that no proceedings shall be initiated under this sub section after the expiry of three years from the date of the order sought to be revised. . The M.P. Sales Tax Act, 1959 which repealed the Madhya Bharat Act by section 52 therein provided the following repeal and saving provisions. "52(1). The Central Provinces and Berar Sales Tax Act, 1947, the Madhya Bharat Sales Tax Act, Samv. 2007, the Central Provinces and Berar Sales Tax Act, 1947 as extended to Vindhya Pradesh and Bhopal region and as in force in those regions immediately before the commencement of this Act and the Rajasthan Sales Tax Act, 1954, as in force in Sironj region, are hereby repealed : Provided that such repeal shall not affect the previous operation of the said Acts or any right, title, obligation or liability already acquired, accrued, or incurred thereunder, and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate or licence) in the exercise of any power conferred by or under the said Acts shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken; and all arrears of taxes and other 832 amounts due, at the commencement of this Act may be recovered as if they had accrued under this Act. " The High Court came to the conclusion that in view of the ,decisions of this Court in The Sales Tax Officer Circle 1, Jabalpur vs Hanuman Prasad(1) and The Swastik Oil Mills Ltd. vs H. B. Munshi, Dy. Commissioner of Sales Tax, Bombay, (2) the Commissioner was incompetent to revise the order because of section 12(1) of the Madhya Bharat Act read with section 52(1) of the M.P. Sales Tax Act, 1959. Hanuman Prasad 's case (supra) arose out of M.P. Sales Tax Act, 1959. Therein in respect of a period governed by the Central Provinces and Berar Sales Tax Act, 1947, the assessee therein filed its return and a notice in form XII was issued to him on March 10, 1959. The assessee 's turnover was assessed by an order dated May 23, 1959. But in the meantime, M.P. Sales Tax Act, 1959 came into force on April 1, 1959. The Commissioner sought to revise the order of assessment on the ground that a portion of assessee 's turnover had escaped assessment. The question arose whether he had to exercise his powers within the time fixed by the Berar Sales Tax Act, 1947 or that fixed under M.P. Sales Tax Act, 1959. The specific question that arose for decision in that case was whether the Commissioner 's power to revise had to be exercised in accordance with section 11A(1) of the Central Provinces and Berar Sales Tax Act, 1947, as contended by the assessee or under section 19(1) of the M.P. Sales Tax Act, 1959 as contended by the Department. That question was examined by this Court from several angles. One of the tests applied was what is the effect of section 52 of the M.P. Sales Tax Act, 1959. Dealing with that aspect, this Court observed at p. 90 of the report "It was under section 52 of the new Act that the repealed Act was repealed, and that section itself, under the proviso laid down that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder. There was also the further addition that subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate or licence) in the exercise of any power conferred by or under the said Act, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act, as if this Act were in force on the date on view of this proviso it has to be held that when this new which such thing was done or action was taken. In (1) 19 S.T.C. 87. (2) 21 S.T.C. 383, 833 Act came into force on 1st April, 1959, all rights, title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained unaffected and intact. The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force." Agreeing with the High Court this Court held in Hanuman Prasad 's(1) case that the Commissioner could not have revised the order of assessment after the period prescribed in the repealed Act. One of the reasons given in support of that conclusion is that "the rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act, in respect of turnover of sales effected during the time when that Act was in force". The expression assessment includes re assessment. Swastik oil MillS(2) case is a converse case. Therein the assessee was assessed to sales tax under the Bombay Sales Tax Act, 1946, for the periods 1st April 1948 to March 31, 1950 and April 1, 1950 to March 31, 1951. On January 7, 1963, Deputy Commissioner initiated proceedings under section 31 of the Bombay Sales Tax Act, 1 1953 proposing to revise the order of the Assistant Collector of Sales Tax in so far as he had allowed deduction in respect of the entire goods despatched by the assessee to its branches 'in other states overlooking the provisions of proviso (b) to rule 1 (ii) under section 6 (3) of the Act of 1946 as amended in 1949. The question was whether the Deputy Commissioner could take advantage of the longer period prescribed under the Bombay Sales Tax Act, 1946 or whether he was required to exercise his powers within the shorter period fixed under the 1953 Act. Bombay High Court as well as this Court came to the conclusion by applying the provisions in section 7 of the Bombay General Clauses Act (1 of 1904) that the Deputy Commissioner was entitled to exercise his power of revision within the period prescribed under the repealed Act. Section 7 of the Bombay General Clauses Act provides "where this Act or any Bombay Act or Maharashtra Act, made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. (1) 19 S.T.C. 87. (2) 21 S.T.C. 383. 834 (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed" Dealing with the scope of those provisions this is what this Court observed : "Very clearly, the repeal of the Act of 1953 by the Act of 1959 did not affect the rights and liabilities of the assessee to tax under the Act of 1953 or the Act or 1946 in respect of the turnover which became liable to sales tax under the Act of 1946. The effect of clause (e) of section 7 of the Bombay General Clauses Act further is that any legal proceeding in respect of levy, imposition or recovery of that tax is to continue and any fresh investigation, legal proceeding or remedy could be instituted as if there had been no repeal by the Act of 1959. Consequently, the repeal of the Act of 1953 did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu against the appellate order of the Assistant Collector which had been passed in exercise of his powers under the Act of 1946. It is true, as urged by Mr. Desai in the alternative, that, in fact, the proceedings should have been taken not under section 31 of the Act of 1953, but under section 22 of the Act of 1946. That is so, because, when the Act of 1946 was repealed by the Act of 1953, similar provisions were made in the Act of 1953 to continue in force the provisions of the Act of 1946 in respect of rights and liabilities which may have accrued or have been incurred under the Act of 1946. Section 48(2) and section 49(1) clearly contained provisions indicating that, in respect of a liability to tax under the Act of 1946, the rights and liabilities of the assessee had to be determined in accordance with the provisions of the Act of 1946 and all legal proceedings or remedies in respect thereof had also to be taken under the same Act. Consequently the Deputy Commissioner in seeking to exercise revisional powers against the order of the Assistant Collector passed under the Act of 1946, had to proceed under section 22 of the Act of 1946. That, however, is not at all material, because the provisions of section 22 of the Act of 1946 are quite similar to those of section 31 835 of the Act of 1953. The mere incorrect mention of section 31 of the Act of 1953 in the notice is immaterial. The Deputy Commissioner has the jurisdiction and power to revise the order under section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction. " Now coming back to section 52 of the M.P. Sales Act of 1959, the proviso to section 52(1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under section 12(1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee ? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12(1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why section 12(1) of the Madhya Bharat Act should not be considered as conferring on the assessee a right to see that the assessment made against him is not altered to his prejudice after a particular date. That is a valuable right. The effect of section 52 (1) of M.P. Sales Tax Act, as seen earlier is that all assessments, which includes reassessments should be in accordance with the repealed Act. The second part of that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall, in so far as it is not inconsistent with the provisions of the M.P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between section 12(1) of the Madhya Bharat Act and section 39(2) of the M.P. Sales Tax Act, 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is that the governing provision would continue to be section 12(1) of the Madhya Bharat Act. For the reasons mentioned above this appeal fails and the same is dismissed. Respondent is ex parte. No costs. L 3 Sup C.I./72 2500 5 10 72 GIPF. 835 of the Act of 1953. The mere incorrect mention of section 31 of the Act of 1953 in the notice is immaterial. The Deputy Commissioner has the I jurisdiction and power to revise the order under section 22 of the Act of 1946 and, consequently the proceedings initiated by him are not without jurisdiction. " Now coming back to section 52 of the M.P. Sales Act of 1959, the proviso to section 52(1) provides that the repeal of the Madhya Bharat Act shall not affect any right already acquired or accrued thereunder. The question is whether the bar on the power of the Commissioner from exercising the powers under section 12(1) of the Madhya Bharat Act after the prescribed period did create a right in favour of the assessee ? The effect of that provision is that after the time prescribed in that provision, the Commissioner could not revise the order of assessment to the prejudice of the assessee. Similarly he could not revise the order of assessment to the prejudice of the Revenue. Section 12(1) conferred a right both on the assessee as well as on the Department to see that an order of assessment is not revised to their prejudice after a particular date. We fail to see why section 12(1) of the Madhya Bharat Act should not, be considered as conferring on the assessee a right to see that the assessment made against him is, not altered to his prejudice after a particular date. That is a valuable right. The effect of section 52(1) of M.P. Sales Tax Act, as seen earlier is that all assessments, which includes reassessments should be in accordance with the repealed Act. The second part of that proviso says that subject to what has been provided in the first part of the proviso, anything done or any action taken including an order in the exercise of any of the powers conferred by or under the repealed Act, shall, in so far as it is not inconsistent with the provisions of the M.P. Sales Tax Act, 1959 be deemed to have been done in the exercise of powers conferred by or under that Act as if that Act were in force on the date on which such thing was done. There is undoubtedly a conflict between section 12(1) of the Madhya Bharat Act and section 39(2) of the M.P. Sales Tax Act, 1959. The former provision prohibits the Commissioner from revising an order which has been made more than two years previously and the latter provision permits him to revise the order till the expiry of three years from the date of the order sought to 'be revised. Therefore the Revenue cannot call into aid the second part of the proviso. The resulting position is: that, the governing provision would continue to be section 12 (1) of the Madhya Bharat Act. For the reasons mentioned above this appeal fails and the same is,dismissed. Respondent is ex parte. No costs. V.P.S. Appeal dismissed .

The respondent, who was the landlord under whom the appellant was a tenant, obtained a decree for eviction and damages against the appellant. The respondent filed an execution application on July 19, 1960. In answer to it the appellant flied objections by initiating proceedings under O. 21, r. 2(2) C.P.C. on September 3, 1960. In that application, the appellant alleged that there was a compromise between the parties on July 25, 1957 that in pursuance of the compromise he made various payments and that the last of the payments was made on June 16, 1960, and prayed for recording an adjustment of the decree. The trial court, however, held that as the compromise was entered into on July 25, 1957 the period of limitation for filing the application would start from that date, and since the application was filed beyond 90 days from that date, it was barred by limitation. The trial court dismissed the application on that sole ground, without investigating into the truth of the compromise or the payments. On appeal, the appellate court accepted the contention of the appellant that if he was able to establish that be bad made the last payment on June 16, 1960 the period of limitation of three months for filing an application under O. 21, r. 2 would begin to run only from that date and that his application would be in time. The appellate court therefore set aside the order of the trial court and remanded the proceedings for investigation into facts, namely, whether the compromise and the payments alleged to have been made by the appellant on the basis of the compromise and particularly the payment said to have been made on June 16, 1960, were true. After remand, the trial court accepted the plea of the appellant regarding the truth of the compromise as well as the payments said to have been made by him, including the payment of June 16, 1960, held that the application filed was within time, and ordered 'full adjustment and satisfaction of the decree. On appeal, the findings of the trial court were confirmed and the anneal was dismissed, in second appeal, the High Court accepted the findings on the questions of compromise and payments but held that as the appellant had not claimed to have made the payments in compliance with O. 21, r. 1, C.P.C., as amended and in force in Allahabad, it was not open to the appellant to ask for recording adjustment of the decree, and dismissed the application of the appellant filed under O. 21, r. 2. Allowing the appeal to this Court, HELD: In view of the decision of the appellate court when remanding the matter, it was not open to the respondent to raise the objection ,either of limitation or that the payments had not been made as per O. 21, T. 1, C.P.C. The parties and the courts had proceeded an the basis that 837 the entire question related to a controversy in respect of execution, discharge or satisfaction of the decree. Under section 47(2) C.P.C., the Court has power to treat the said proceeding as a suit. Under O. 41, r. 23, an appellant court has power to remand a proceeding when a suit has been disposed of on a preliminary point; and under O. 43, r. 1 (u) C.P.C. an appeal lies against an order remanding the case where an appeal would lie against the decree of the appellate court. The respondent should have filed an appeal against the order of the remand, and the consequence of his omission to file such an appeal is that under section 105(2), C.P.C., the decision of the appellate court, while remanding the matter, regarding the date from which the period of limitation is to commence, namely June 16, 1960, if payment on that date was established by the appellant, was final and binding on the parties. The High Court when dealing with the matter should have given due effect to the decision given in the order of remand and should have held that the respondent was precluded from raising either the plea of limitation or that it was not open to the appellant to rely upon the payments not made in accordance with O. 21, r. 1, C.P.C., as in force in Allahabad. The High Court had not differed on the concurrent findings recorded on facts in favour of the appellant and therefore, interference with the decision of the two subordinate courts was erroneous in law. [843 F G. 844 C H; 845 A E]

iminal Appeal No. 7 of 1953. Appeal by Special Leave from the Judgment and Order of the High Court of Judicature at Nagpur dated the 15th. September, 1952, in Criminal Case No. 45 of 1951 from the Order of the Court of the Magistrate 1st Class, Hoshangabad, in Criminal Case No. 75 of 1949. H.J. Umrigar, Rameshwarnath and Rajinder Narain for the appellants. T. L. Shevde, Advocate General of Madhya Pradesh (T. P. Naik and I. N. Shroff, with him) for the respondent. May 14. The Judgment of the Court was delivered by MEHAR CHAND MAHAJAN C.J. The facts giving rise to this appeal are these: The appellant, Harishankar Bagla, and his wife, Smt. Gomti Bagla, were arrested at Itarsi, by the Railway Police on the 29th November, 1948, for contravention of section 7 of the Essential Supplies (Temporary Powers) Act, 1946, read with clause (3) of the Cotton Textiles (Control of Movement) 383 Order. , 1948, having been found in possession of new cotton cloth " weighing over six maunds which cloth, it was alleged,was being taken by them from Bombay to Kanpur without any permit. After various vicissitudes through which the chalan passed the case was eventually withdrawn by the High Court to itself on the 3rd of September, '1951, as it involved a decision of constitutional issues. By its order dated the 15th September, 1952, the High Court upheld the provisions of sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, as constitutional. It also upheld the constitutionality of the impugned Order. Section 6 of the Act was held to be inconsistent with the provisions of the Railway Act but it was held that its unconstitutionality did not affect the prosecution in this case. The High Court directed that the prosecution should proceed and the records sent back to the trial Court for being dealt with in accordance with law. Leave to appeal was given both to the appellants and the respondent and requisite certificates under articles 132 and 134 of the Constitution were granted. This appeal along with the connected appeal No. 6 of 1953 is before us on the basis of the said certificates. Mr. Umrigar, who appeared in this and the connected appeal, urged the following points for our consideration and decision: (1) That sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, and the provisions of the Cotton Cloth Control Order contravened the fundamental right of the appellants guaranteed by article 19(1)(f) and (g) of the Constitution; (2) That section 3 of the Essential Supplies (Temporary Powers) Act, 1946, and in particular section 4 were ultra vires, the Legislature on the ground of excessive delegation of legislative power; (3) That section 6 having been found ultra vires, section 3 was inextricably connected with it and that both the sections should have been declared ultra vires on that ground; and (4) That the impugned Control Order contravened existing laws, viz., the provisions of section 27,28 and 384 41 of the Indian Railways Act, and was thus void in its entirety. The respondent challenged the judgment of the High Court that section 6 of the Act was unconstitutional. In our judgment, none of the points raised by Mr. Umrigar have any validity. On the other hand, we are of the opinion that the High Court was in error in declaring section 6 of the Act unconstitutional. Sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946, provide as follows: "3. (1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for socuring their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein (2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (a) for regulating by licences, permits or otherwise the production or manufacture of any essential com modity;. . (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity; 4. The Central Government may by notified order direct that the power to make orders under section 3 shall,in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or authority subordinate to a State Government as may be specified in the direction. " Section 6 runs thus: "6. Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith 385 contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act." Under powers conferred by section 3 the Central Government promulgated on 10th September, 1948, Cotton Textiles (Control of Movement) Order, 1948. Section '2 of this order defines the expressions "apparel," " carrier," " hosiery," " cloth " and " textile commissioner. " Section 3 of the order runs as follows: "3. No person. shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with (i) a general permit notified in the Gazette of India by the Textile Commissioner, or (ii) a special transport permit issued by the Textile Commissioner. " Section 8 provides that the Textile Commissioner may, by notification in the Gazette of India, prescribe the manner in which any application for a special transport permit under this Order shall be made. The Central Government has prescribed forms for application for obtaining permits and the conditions under which permits can be obtained. The first question canvassed by Mr. Umrigar was that the provisions of section 3 of the Control Order infringed the rights of a citizen guaranteed in subclauses (f) and (g) of article 19(1) of the Constitution. These sub clauses recognise the right of a citizen to dispose of property and to carry on trade or business. The requirement of a permit to transport by rail cotton textiles to a certain extent operates as a restriction on the rights of a person who is engaged in the business of purchase and sale of cotton textiles. Clause (5) of article 19 however permits such restrictions to be placed provided they are in the public interest. During the period of emergency it was necessary to impose control on the production, supply and distribution of commodities essential to the life of the community. It was for this reason that the Legislature passed the Essential Supplies (Temporary Powers) Act 50 386 authorising the Central Government to make orders from time to time controlling the production, supply and distribution of essential commodities. Clause 3 of the Control Order does not deprive a citizen of the right to dispose of or transport cotton textiles purchased by him. It requires him to take a permit from the Textile Commissioner to enable him to transport them. The requirement of a permit in this regard cannot be regarded as an unreasonable restriction on the citizen 's right under sub clauses (f) and (g) of article 19(1). If transport of essential commodities by rail or other means of conveyance was left uncontrolled it might well have seriously hampered the supply of these commodities to the public. Act XXIV of 1946 was an emergency measure and as stated in its preamble, was intended to provide for the continuance during a limited period of powers to control the production, supply and distribution of, and trade and commerce in, certain commodities. The number of commodities held essential are mentioned in section 2 of the Act, and the requirement of a permit to transport such commodities by road or rail or other means of transport cannot, in any sense of the term, be said, in a temporary Act, to be unreasonable restriction on the citizen 's rights mentioned in clauses (f) and (g) of article 19(1). The High Court was therefore right in negativing the contention raised regarding the invalidity of the Control Order as abridging the rights of the citizen under article 19(1) of the Constitution. Mr. Umrigar further argued that the Textile Commissioner had been given unregulated and arbitrary discretion to refuse or to grant a permit, and that on grounds similar to those on which in Dwarka Prasad vs The State of Uttar Pradesh (1), this Court declared void section 4(3) of the Uttar Pradesh Coal Control Order, section 3 of the Control Order in question should also be declared void. This argument again is not tenable. In the first place, the appellants never applied for a permit and made no efforts to obtain one. If the permit had been applied for and refused arbitrarily they might then have had a right to attack the law on (1) A.T.R. ; 387 the ground that it vested arbitrary and unregulated power in the textile commissioner. The appellants were not hurt in any way by any act of the textile commissioner as they never applied for a permit. They were transporting essential goods by rail without a permit and the only way they can get any relief is by attacking the section which obliges them to take a permit before they can transport by rail essential commodities. It may also be pointed out that reference to the decision of this Court in Dwarka Prasad 's case(1) is not very opposite and has no bearing on the present case. Section 4(3) of the Uttar Pradesh Coal Control Order was declared void on the ground that it committed to the unrestrained will of a single individual to grant, withhold or cancel licences in any way he chose and there was nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Section 4(3) of the Uttar Pradesh Coal Control Order was in these terms: " The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded. Provided that every power which is under this Order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller, or any person authorized by him in this behalf In the present Control Order there is no such provision as existed in the Uttar Pradesh Coal Control Order. Provisions of that Control Order bear no analogy to the provisions of the present Control Order. The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commis sioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion (i) ; A.I.R. 1954 S.C. 225; 388 cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief Presumably, as appears from the different forms published in the Manual, there are directions and rules laid down by the Central Government for the grant or refusal of permits. The next contention of Mr. Umrigar that section 3 of the Essential Supplies (Temporary Powers) Act, 1946, amounts to delegation of Legislative power outside the permissible limits is again without any merit. It was settled by the majority judgment in the Delhi Laws Act case (1) that essential powers of legislation cannot be delegated. In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3. Delegation of the kind mentioned in section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council, vide Russell vs The Queen (2), Hodge vs The Queen (3), and Shannon vs Lower Mainland Dairy Products Board (4)and since the coming into force of the Constitution delegation of this character has been upheld in a number of decisions of this Court on principles enunciated by the majority in the Delhi Laws Act case (1). As already. pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of I I) ; (2) 7 A.C. 829. (3) 9 A.C. II7. (4) [I938] A.C. 708. 389 the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy. Mr. Umrigar could not very seriously press the question of ' the invalidity of section 3 of the Act and it is unnecessary therefore to consider this question in greater detail. Section 4 of the Act was attacked on the ground that it empowers the Central Government to delegate its own power to make orders under section 3 to any officer or authority subordinate to it or the Provincial Government or to any officer or authority subordinate to the Provincial Government as specified in the direction given by the Central Government. In other words, the delegate has been authorized to further delegate its powers in respect of the exercise of the powers of section 3. Mr. Umrigar contended that it was for the Legislature itself to specify the particular authorities or officers who could exercise power under section 3 and it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise the power. Reference in this connection was made to two decisions of the Supreme Court of the United States of America Panama Refining Co. vs Ryan (1) and Schechter vs United States (2). In both these cases it was held that so long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. These decisions in our judgment do not help the contention of Mr. Umrigar as we think that section 4 enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. The decision of their Lordships of the Privy Council in Shannon 's case (3), completely negatives the contention raised regarding the invalidity of section 4. (1) ; (3) (2) ; 390 In that case the Lt.Governor in Council was given power to vest in a marketing board the powers conferred by section 4A(d) of the Natural Products Marketing (British Columbia) Act, 1936. The attack on the Act was that without constitutional authority it delegated legislative power to the Lt.Governor in Council. This contention was answered by their Lordships in these terms: " The third objection is that it is not within the powers of 'the Provincial Legislature to delegate so called legislative powers to the Lt. Governor in Council, or to give him powers of further delegation This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted various persons and bodies with similar powers to those contained in this Act. " The next contention that the provisions of the Textile Control Order operate as an implied repeal of sections 27, 28 and 41 of the Indian Railways Act and are therefore invalid is also not well founded. The requirement of a permit by clause (3) and provisions of clause (4) of the Order which empower the Textile Commissioner to direct a carrier to close the booking or transport of cloth, apparel, etc., are not in direct conflict with sections 27, 28 and 41 of the Railways Act. The Railways Act does not exclude the placing of a disability on a railway administration by the Government or any other authority. This clause merely supplements the relevant provisions of the Railways Act and does not supersede them. Similar observations apply to clause (5) which enables the Textile Commissioner to place an embargo on the transport of certain textiles from one area to another. There is nothing in the provisions of the order which in any way overrides or supersedes the provisions of the different sections of the Railways Act referred to above. 391 The last contention of Mr. Umrigar that section 6 having been declared invalid, section 3 is inextricably mixed with it and should also have been declared invalid is also not valid, because apart from the grounds given by the High Court for holding that the two sections were not so interconnected that the invalidity of one would make the other invalid, the High Court was in error in holding that section 6 was unconstitutional. Section 6 of the Act cited above declare, that an order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. In other words it declares that if there is any repugnancy in an order made under section 3 with the provisions of any other enactment, then notwithstanding that inconsistency the provisions of the Order will prevail in preference to the provisions of other laws which are thus inconsistent with the provisions of the Order. In the view of the High Court the power to do something which may have the effect of repealing, by implication, an existing law could not be delegated in view of the majority decision of this Court in In Re: Delhi Laws Act (1), where it was held that to repeal or abrogate an existing law is the exercise of an essential legislative power. The learned Judges of the High Court thought that the conferment of power of the widest amplitude to make an order inconsistent with the pre existing laws is nothing short of a power to repeal. In our opinion the construction placed on section 6 by the High Court is not right. Section 6 does not either expressly or by implication repeal any of the provisions of pre existing laws; neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of section 6 certainly is not to repeal any one of those laws or abrogate then;. Its object is simply to by pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) (I) [1951) S.C.R, 747. , or the orders made thereunder. In other words, the orders made under section 3 would be operative in regard to the, essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under section 3 it does not operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions. Conceding, how ever, for the sake of argument that to the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself. By enacting section 6 Parliament itself has declared that an order made under section 3 shall; have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3. The power of the delegate is only to make an order under section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act. Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre existing law and no exception could be taken on the ground of excessive delegation to the Act of the Parliament itself. There is no delegation involved in the provisions of section 6 at all and that section could not be held to be unconstitutional on that ground, 393 The result therefore is that in our opinion the provisions of sections 3, 4 and 6 of the Essential Supplies (Temporary Powers) Act, 1946, are constitutional and. the impugned order is also constitutional. Accordingly ' this appeal is dismissed, and the trial Court is directed to proceed expeditiously with the case in accordance with law. Appeal dismissed.

The appellant, who was a Platform Inspector employed by the North Eastern Railway was prosecuted for offences under section 161 I.P.C. and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 for accepting a bribe from another subordinate railway employee. The prosecution was commenced after obtaining the sanction of the Deputy Chief Commercial Superintendent but it was discovered during the trial that this officer was not competent to sanction the appellant 's prosecution. The trial Judge, at the request of the Public Prosecutor, quashed the proceedings. Thereafter. sanction was obtained from the Chief Commercial Superintendent and in fresh proceedings for the same offences, the appellant was convicted and the order of conviction was confirmed in appeal by the High Court. In appeal to this Court it was contended on behalf of the appellant: (i) that in view of the provisions of cl. (i) of r. 1704 of the Indian Railway Establishment Code, the Deputy Chief Commercial Superintendent had the power to remove the appellant from service, and was competent to grant sanction under section 6(c) of the Prevention of Corruption Act for his prosecution; the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant was therefore valid and the order passed by the Special Judge quashing the proceeding amounted in law to an order of acquittal so that the appellant could not again be tried for the same offence; (ii) that in relation to the evidence of two witnesses for the prosecution, the provisions of section 356 Cr. P.C. had not been complied with in that, the evidence of these witnesses was recorded in the presence of one trial Judge and the record of the evidence had been signed by his successor in office, after the death of the former; and (iii) that the investigation was made by an officer who. in view of the provisions of section 5A(1)(d) of the Prevention of Corruption Act, 1947 had no authority to investigate the offence as he was a Police Officer below the rank of a Deputy Superintendent of Police. 949 HELD: Dismissing the appeal, (i) The powers exercisable under r. 1704 (i) being subject to cl. (c) of r. 1705 of the Indian Railway Establishment Code and also to the provisions of article 311 of the Constitution in the present case the Deputy Chief Commercial Superintendent could not remove the appellant from service and, therefore had no power to sanction his prosecution. the trial judge who had taken cognizance of the case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an order of acquittal passed by a court which had no jurisdiction did not bar a retrial for the same offence. [952 C E] (ii) There was irregularity in maintaining the record of the evidence at the trial because the evidence was recorded before one Judge and another Judge. subscribed his signature to the record of that evidence, and on that account there was nOn compliance with the provisions of section 356(1) Cr.P.C., but this was an irregularity curable under section 537 Cr. P.C. and did not vitiate the trial. [955 B. E] The object of the provisions in the Code relating to the recording of evidence is to ensure that a correct record is maintained of what is said in court by witnesses, and the record may be available at a later stage of the trial and in appeal. If the court is satisfied that in a given case the record notwithstanding any departure from the provisions relating to maintenance of the record is correct the irregularity may be ignored if no injustice has resulted therefrom. [954 D] Liverpool Borough Bank vs Turner, ; , referred to. Abdul Rahman vs King Emperor, L.R. 54 I.A. 96, distinguished. (iii) By section 5A(1)(d) the legislature has expressly provided that an officer below the rank of a Deputy Superintendent of Police may conduct the investigation with the order of a Presidency Magistrate or a Magistrate of the First Class. In the present case such are order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained and there was compliance with the provisions of section 5A(1)(d). [957 H]

ivil Appeal No. 567 of 1987. From the Judgment and Order dated 12.1.1987 of the Bombay High Court in W . No. l24/ 1987. R. Agarwala for the Appellant. Dr. L.M. Singhvi, P.K. Banerjee, S.K. Jain, L .A. Kriplani. Dr. A.M. Singhvi and section Bandopadhya for the Respondents. The Judgment of the Court was delivered by B.C. RAY, J. The member of society Mrs. Maya Inderson Israni who has been allotted the flat No.62 on 6th floor of Nibhana Building by the disputant No.2, the Nibhana Co operative Housing Society. Ltd. and the society filed a dispute before the Judge Fifth Cooperative Court at Bombay for recovery of possession of the said flat from the opponents who are the appellants in this appeal and for mesne profits in respect of the flat alleging inter alia that the appellants were inducted in th flat without the written consent of the Society as a licencee on the basis of a leave and licence agreement which was a renewed from time to time till some time in 1972 and on Ist October 1972, the member, that is, the respondent No.2 terminated the licence and called upon the appellant to remove itself from the said flat. Thereafter an advocate s Letter dated 1st October 1972 was sent by the respondent No. 2 to the appellant for vacating the flat. The appellant having failed to comply with the request a dispute was filed by the H.T ASSOCIATES vs MRS. MAYA [RAY. J.] member as well as the Co operative Society for eviction of the appellants from the flat, as well as for mesne profits. The plea of the appellants was that they were continuing in possession of the flat on the basis of a leave and licence agreement by payment of licence fee uptill now and as such the dispute does not come within section 91 of the Co operative Societies Act as they have become tenants under section 15 of Bombay Rent Act. The Co operative Court after hearing the parties made an award holding that the dispute fell within the jurisdicton of the Co operative Court as the appellant claimed to be h possession of the flat as a licencee through the member of the society which is a Co partnership Housing Society under the Maharashtra Co operative Societies Act. It was also held that the appellant was occupying the flats in question as a trespasser after the licence in favour of appellant was terminated. There was no subsisting licence to occupy the flat by the appellants on 1st February. 1973 and so Section 15 of the Bombay Rent Act was not applicable to it. An appeal was filed by the appellant before the appellate authority. The said appeal was dismissed and the order of the Co operative Court was upheld. The appellants filed a writ petition No. 1 '4 of 1987 before the High Court of Bombay under Article 227 of the Constitution. The said Writ Petition was dismissed by the High Court. Hence this appeal by Special Leave has been filed by the appellant. In view of our judgment in C.A. No. 472 of 1985, this appeal is dismissed without any order as to costs. The decree will not be executed for a period of four months from the date of this order subject to the appellant s filling an usual undertaking within a period of two weeks from today to the effect that the appellant will not transfer. assign or encumber the flat in question in any manner whatsoever and on undertaking that he will hand over peaceful possession of the flat in question to the respondent on or before the expiry of the aforesaid period and he will go on paying the occupation charges equivalent to the amount he had been paying for each month by the 7th of succeeding month. In default of compliance of any of these terms, the decree shall become executable forthwith. N .V.K. Appeal dismissed.

The appellant who was a scientist in the Defence Electronics Research Laboratory was compulsorily retired from services by an order dated November 28, 1988 under Article 459(h) of the Civil Services Regulations. He challenged the retirement order before the Central Administrative Tribunal. It was contended on his behalf that he had a brilliant academic career and a clean record of service and that he had actually been interviewed for the post of Director during May June, 1986, and that on account of the representation made by him in February, 1986 to the authorities for redressal of personal grievances wherein he had suggested improvements in the laboratory and pointed out the defective functioning of the Institution, the authorities developed bias against him. On behalf of the Department, these allegations were countered and the service records of the appellant were produced before the Tribunal. The Tribunal rejected the allegations of bias, mala fide and the appellants ' claim that the order of retirement was based upon extraneous consideration, and dismissed the appeal. In the appeal to this Court it was contended on behalf of the appellant, that the appellant had a clean service record and there was, therefore, no justification to prematurely retire him, and that it has to be assumed that the appellants 's record of service was clean as he was not communicated any adverse entry in his character roll. The Department made available for inspection at the hearing of the appeal, the service records from 1973 till retirement, in support of its stand that the guidelines prescribed for review for deciding whether an officer should be prematurely retired had been strictly followed, and that the decision to retire the appellant was taken in a bona fide and legitimate manner and without any bias or prejudice and that there were several entries by the authorities in the character roll to indicate deficiencies and drawbacks in the appellant 's functioning. PG NO 6 Dismissing the appeal, HELD: 1. The post in which the appellant was working was a responsible one and poor performance could not be tolerated. [IID] 2. The appellant had served under four controlling authorities and three of them were Scientists of international repute. These Scientists appear to have made a fair assessment of the appellant 's work and what is material is that there is unanimity in their conclusion. Years back one of the entries had indicated that the appellant had become `dead wood ', and he was also communicated the general disapproval of his method of working. [11A B, 11D] 3. It cannot be contended in the instant case, that there was no communication of adverse entries because the entries were mostly based upon general assessment of the performance. Ordinarily when the entries relate to specific instance leading to adverse entries, the communication thereof is sent to the officer concerned with a view to providing an opportunity for improvement of performance. [11C D] 4. The review proceedings were in consonance with the guidelines framed by the Government. From the proceedings of the Review Committee it is found that the Committee took up the review of 19 officers and found the appellant alone liable for retirement. Even at Government level after the recommendation of the review committee, the report was duly scrutinised. [11D, 11F]

etition (Criminal) No. 7207 of 1981. (Under Article 32 of the Constitution of India) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. This petition for review and the petition for the issue of Writ under Article 32 were argued by Shri Jethmalani with, what appeared to us to be more than his customary vehemence and emotion. Nonetheless, we confess, we are not impressed. By our judgment dated August 12, 1981(1), we had set aside the judgment of acquittal passed by the High Court of Bombay and restored that of the learned Additional Chief Presidency Magistrate, 8th Court, Esplanade, Bombay, convicting the petitioner under different heads of charges and sentencing him to suffer imprisonment for various terms ranging from two years to four years and to the payment of fine of Rs. 10,000/ on each of different counts. , Shri Jethmalani contended that though he had argued that the period during which the petitioner had been preventively detained under the maintenance of Security Act and the should be 'set off ' against the sentence of imprisonment imposed upon him, we had not touched upon the point. He also drew our attention to a reference to set off ' in the written submissions given to us after the hearing of the case. We may mention that what was argued before us was not that the petitioner was entitled to a 'set off ' but that the period of his detention might be taken into 63 account in considering the question of the appropriate sentence to A be imposed on the petitioner, which question was considered by us. But, we will let that pass, accept Mr. Jethmalani 's word for it and proceed to consider the question straightaway. It appears that the petitioner was detained first under the provisions of the MISA and later under the provisions of the COFEPOSA. The periods of detention were September 17, 1974 to April 18, 1975, July 1, 1975 to November 21, 1975 and May 20, 1976 to March 22, 1977. We are told that the orders of detention, which have not been produced before us, were based on facts which were the vary subject matter of the criminal case. The learned Additional Chief Presidency Magistrate had convicted the petitioner by his judgment dated December 13, 1971 but that was set aside by the High Court by their judgment dated April 20, 1974. The State of Maharashtra filed an application for special leave under article 136 of the Constitution on November 30, 1974 and special leave was granted by this Court on April 15, 1975. It was noticed by this Court at the time of granting special leave that the petitioner was then in preventive detention and it was directed that in case he was released from detention but re arrested in connection with the case he should be released on bail on the same terms as those on which bail had been previously granted by the High Court. The submission of Shri Jethmalani was that the total of the three periods of detention should be "set off ' against the sentence of imprisonment imposed upon him. He relied upon the decision of this Court in Govt. Of Andhra Pradesh & Anr. vs Anne Venkateswara Rao etc. etc.(l) We are unable to agree with the submission of Shri Jethmalani; In the very case cited by the learned counsel, the Court negatived the contention that the expression 'period of detention ' in Section 428 Code of Criminal Procedure included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act. It was observed: "It is true that the section speaks of the period of. detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the 64 case in which the accused person has been convicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the 'same case ' in which he has been convicted. We, therefore, agree with the High Court that the period during which the Writ Petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them". After holding that the period during which the petitioners therein were in preventive detention could not 'set off ' under Section 428 Code of Criminal Procedure against the term of imprisonment imposed on them, the Court went on to consider whether the period during which the petitioners were in preventive detention could for any reason be considered as period during which the petitioners were in detention as undertrial prisoners or prisoners serving out a sentence on conviction. In the case of the prisoner A. V. Rao the Court held that the period commencing from the date when he would have normally been arrested pursuant to the First Information Report registered against him should be reckoned as period of detention as an undertrial prisoner. In the case of another prisoner Krishnaiah it was held that the period during which he was in preventive detention subsequent to the conviction and sentence imposed upon him should be treated as detention pursuant to conviction and sentence. The case before us is altogether different. The petitioner had been acquitted by the High Court before any of the orders of detention were made against him. There can be no question of the detention being considered as detention pursuant to conviction; nor can the detention be treated as that of an undertrial. It is only in the circumstances where the prisoner would have unquestionably been in detention in connection with a criminal case if he had not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428 Code of Criminal Procedure. Shri Jethmalani next contended that the petitioner had not been given an opportunity to argue on the question of sentence, that is hardly fair to us. A substantial part of the argument of Shri Jethmalani on that occasion was on the question of sentence 65 and, in the judgment pronounced by us, we did consider the argument advanced by the learned counsel on the question of sentence. It was also contended before us that the Court was not justified in holding that the petitioner was responsible for the long delay that had been caused in the disposal of the case and that the Court was wrong in holding that it was for the accused to show that he had been prejudiced by the delay. We see no merit in these contentions. The application for review is therefore dismissed. No separate arguments were advanced in the Writ Petition which is also dismissed. N.V.K. Petitions dismissed.

The Presidency Magistrate convicted the petitioner for offences under section 120B of the Indian Penal Code read with section 135 of and Customs Act and Rule 126P(2) (ii) and (iv) of the Defence of India Rules 1962 and sentenced him to suffer imprisonment for various periods ranging from two years to four years and to payment of fine. The conviction and sentence was set aside by the High Court, but this Court in appeal by the State set aside the judgment of acquittal by the High Court and restored that of the Presidency Magistrate. The petitioner was also preventively detained for various periods first under the Maintenance of Internal Security Act and afterwards under the . In the review petition and writ petition to this Court it was contended on behalf of the petitioner that: (I) though it was argued in the appeal to this Court that the periods during which the petitioner had been preventively detained should be 'set off ' against the sentence of imprisonment imposed upon him this court had not touched upon the point; and (2) this court 's decision in Government of Andhra Pradesh and another vs Venkateswara Rao; , , enabled the petitioner to claim the total of the three periods of detention to be 'set off ' against the sentence of imprisonment. Dismissing the review and writ petition, ^ HELD: 1. It was not argued that the petitioner was entitled to a 'set off ' but that the period of his detention might be taken into account in considering the question of the appropriate sentence be imposed on him. [62 H, 63 A]. 2(i) In Government of Andhra Pradesh vs Venkateswara Rao, this Court negatived the contention that the expression period of detention in Section 428, Code of Criminal Procedure 1973 included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act. [63 F G] (ii) Section 428, Code of Criminal Procedure 1973 makes it clear that the period of detention which it allows to be 'set off ' against the term of imprisonment imposed on the accused on conviction must be during the investigation, enquiry, or trial in connection with the 'same case ' in which he has been convicted. [64 A B] 62 (iii) only in circumstances where the petitioner would have unquestionably been in detention in connection with a criminal case if he had not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428, Code of Criminal Procedure 1973. [64 G] In the instant case the petitioner had been acquitted by the High Court before any of the orders of detention were made against him. There can, there fore, be no question of the detention being considered as detention pursuant to conviction nor can the detention be treated as that of an undertrial. [64 F]

Appeal No. 1 of 1962. Appeal from the judgment and decree dated September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954 (I.T.) T. section Venkataraman and V. A. Seyid Muhammad, for the appellant. A. V. Viswanatha Sastri, G. B. Pai, Shakuntala Sharm and K. P. Gupta for respondent No. 1. 1963. May 8. The judgment of the Court was delivered by HIDAYATULLAH J. This is an appeal on a certificate by the High Court of Kerala against its judgment and decree dated September 10, 1957. The suit out of which this appeal arises, was filed by the appellant Kunju Kesavan to redeem an Otti created by one Bhagavathi Parameswaran in favour of 638 one Krishnan Marthandan on 5.5.1091 M.E., for 3500 fanams. Subsequently, Krishnan Marthandan created some chittoti. Bhagavathi Parameshwaran made a gift of the property to his wife Bhagavathi Vailiyamma on 9.3.1103 M.E., by Exh. Bhagavathi Valli died on 4.11.1105 M.E. She had an only son Parameswaran Sivaraman who was married to Parvathi Meenakshi and had a son named Vasudevan. Sivaraman, according to the plaintiff, left Travancore in 1096 M.E., and both sides have taken it for granted that he died thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12.4.1123 M.E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the court. The suit was valued at 3500 fanams (about Rs. 500/ ) which was the amount of the otti, and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession. The suit was resisted by the first defendant (respondent No. 1). Defendants 2 and 3 (respondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter. The first respondent admitted some of these facts. He, however, averred that the document executed by Bhagavathi Parameshwaran was not meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom by Exh. He also contended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum, in O. section No. 36 of 1100 M.E., and that in an auction sale held on 3.4.1114 M. E., the jenmom rights were purchased by the decree holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale deed. He claimed to have thus obtained the jenmom rights as also the otti rights. 639 The first respondent admitted that Sivaraman had left India in 1096 M.E., but denied the allegation that letters were received from him till II 00 M.E , or that till 1108 M E., some information was being received about him. He asserted that right from 1096 M.E., none heard from him or of him, and submitted that Sivaraman must have died in 1096 M.E., or was not alive on 9.3 1103 M.E., the date of the gift to Bhagavathi Valli. According to him, on Bhagavathi Valli 's death, her sister Narayani and Narayani 's daughter Gouri were heirs and Meenakshi and Vasudevan were not her heirs and thus they never got the jenmom rights. Alternatively, he contended that even if they did obtain any jenmom rights, they lost them by the auctionsale in O.S. No. 36 of 1100 M.E., to the auctionpurchasers. The first respondent, therefore. submitted that the transaction by sale in favour of the present appellant gave him no rights; on the other hand, as the auction purchasers were allowed to continue in possession as full owners with the consent express or implied or the acquiescence of Vasudevan and Meenaksi, full title resulted to him. The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the ' Travancore Ezhava Act, 1100 (Act III of 1100) in the matter of succession and partition. One of the contentions tried in the case relates to this exemption, it being contended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed not by its terms but by the general Marumakkathayam law. , The two courts below decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367/13/4. An appeal was filed by the present first respondent, and the other side cross objected. The appeal and the crossobjection were dismissed. On further appeal by the 640 first defendant, the High Court reversed the decision of the two courts below, holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour, and was not entitled to redeem the property. The plaintiff has now appealed to this Court on a certificate by the High Court. A preliminary objection has been raised about the competency of the certificate granted by the High Court. It is contended that the suit was valued at 3500 fanams, and this valuation governs the suit for the purpose of the certificate, and the amount or value being below the mark, the certificate was wrongly issued by the High Court and ought to be cancelled. Alternatively it is contended that if the valuation was more than Rs. 10,000, the trial court had no jurisdiction to try the suit. The present appeal is against the judgment of the High Court which reversed the decision of the court below, and if the valuation was above the mark, the certificate was properly granted by the High Court since an appeal as of right would lie. An appeal must satisfy two tests of valuation. The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark. There are, however, cases in which the decree or final order involves directly or indirectly some claim or question to or respecting property above the mark. Such cases are also appealable. Ordinarily, the valuation in the plaint determines the valuation for the purposes of appeal. A plaintiff, who sets a lower value on a claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, because this would amount to approbation and reprobation. But in those cases in which the plaint is not required to be valued in 641 this way, a question may arise as to the proper value of the claim both in the court of first instance and on appeal to this Court. The word 'indirectly ' in such cases covers the real value of the claim which is required to be determined quite apart from the valuation given in the plaint. In this case, the High Court found the value to be Rs. 42,000 and Rs. 80,000 at the two material times. It is obvious that the plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He was not, therefore, concluded by the valuation given in the plaint. He had asked for possession of the property after redemption, and that property as the High Court hag found, is well above the mark in value. The certificate was, therefore, properly granted. The attack on the jurisdiction of the court of first instance must also fail. The suit as valued was properly laid in the court of first instance, and in any case, such an objection cannot be entertained now. The preliminary objection is, therefore, rejected. The main question in this appeal is whether Meenakshi and Vesudevan had any title to the property and whether they could transmit any title to the appellant. This depends on whether the Ezhava Act applies or the ordinary Marumakkatha yam law. The ordinary Marumakkathayam law has a system of inheritance in which the descent is traced in the female line. It is conceded that if the Marumakkathayam law is applicable, Meenakshi and Vasudevan, who were the daughter in law and son 's son of Bhagavathi Valli, were not heirs to her. The Ezbava Act was passed to define and amend, among others, the law of succession and partition among the Ezhavas. In its application, it excluded Ezhavas domiciled in Travancore, who were following Makkathayam. By section 2 of the Ezhava 642 Act, the Act could be extended to Ezhavas who followed Makkathayam. No question has been raised before us that it was not so extended and the arguments proceeded on the assumption that it was, indeed, the answering respondent claimed that Bhagavathi Valli had opted out of part IV under section 32 of the Act, and this could only be if the Act was applicable to her. The appellant contended. as we shall show presently, that Bhagavathi Valli was governed by the Ezhava Act. 'Makkathayam ' means gift by the father. In the Ezhava Act, Makkathayam property is defined to mean property obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest. The property in suit was gifted by Bhagavathi Parmeswaran to his wife Bhagavathi Valli, and obtained the character of makkathayam property. The first question, therefore, raised by Dr. Seyid Muhammed, counsel for the appellant, is that though the gift was to Bhagavathi Valli co nomine, it operated, under the law applying to makkathayam property, to confer equal benefits upon Bhagavathi Valli and her issue howlow so ever. Reference in this connection is made to section 32 of the Act which makes a special provision for the partition of makkathayam property and provides: "32. Makkathyam property divisible among wife and children equally. Except where a contrary intention is expressed in the instrument of gift or bequest, if any, makkathayam property acquired after the date of the passing of this Act shall be liable to be divided among the wife and each of the children in equal shares : Provided that, in the partition of makkathayam property, the issue how low so ever of a 643 deceased child shall be entitled to only such share as the child itself, if alive would have taken. " According to the answering respondent, the settlement deed, Exh. III, gave the suit property exclusively to Valliyamma and some other property to the grandson Vasudevan and thereby evinced an intention contrary to the operation of section 32. Dr. Seyid Muhammed submits that the ordinary rule of law was that the property was impartable and was always shared by a female of a marumakkathyam tarwad with her thavazhee, and cited a passage from M.P. Joseph 's book on the Principles of Marumakkthayam Law (1926), pp. 52,53, in support of this contention. He also refers to the observations of a Division Bench in Narayanen Narayanen v, Parwathi Nangali (1), where it was held that a gift by the rather (known as makkathayam) to his wife was ordinarily intended to benefit the wife and the children of the donor and though the property was usually registered and acquired in the name of the mother, it was always held in common by them. He contends that section 32 made a departure and imposed partibility on the makkathayam property and the only intention that must appear must be in favour of impartibility, and such an intention cannot be spelled out of Exh. Section 32 makes the makkathayam property divisible among wife and children equally. The provision is in part VII which deals with partition. It is not possible to say that by the contrary intention only impartibility could be imposed. There is nothing to show that impartibility was the rule in respect of makkathayam property. The two passages only show that ordinarily the benefit went to the thavazhee as a whole. What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares would be equal (1) 644 unless a contrary intention was expressed. The reading suggested by Dr. Seyid Muhammed cannot be accepted as the only reading. If one goes by the document, Exh. III, it is clear that there was such an intention implicit in it. The donor gave some properties to his wife, and others to his grandson. His son was then unheard of for years. He thus divided his properties between his wife and grandson and the intention is manifest that each was to take exclusively. Dr. Seyid Muhammed next contends that the property was either shared by Bhagavathi Valli with her son and son 's son as shown in the proviso to section 32, quoted above, or it belonged to her exclusively. In either case, be contends Vasudevan would have an interest and could transmit it to the appellant. He argues that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then, Vasudevan would have the right to redeem the otti as a person interested, and so would the present appellant, as a transferee from him. Alternatively, if the property became that of Bhagavathi Valli alone, then, succession to that property would be governed by sections 18 and 19 of the Ezhava Act, read with Explanation II, which explanation governs the whole of part IV where sections 18 and 19 figure. These sections and the explanation read : "18. Devolution of self acquired or separate property of a female. On the death of an Ezhava female, the whole of her self acquired or separate property left undisposed by her at her death shall develove on her own thavazhee. If she dies leaving her surviving no members of her thavazhee but her husband and members of her mother 's thavazhee, one half of such property shall devolve on her husband and the other half on her mother 's thavazhee. In the absence of the husband the mother 's thavazhee shall take the whole; and in the absence of the 645 mother 's thavazhee the husband shall take the whole." "19. Devolution of such property in the absence of members of her or her mothers thavazhee or husband. On the death of an Ezhava female, leaving her surviving neither members of her thavazhee nor other members of her mother 's thavazhee nor husband but only the thavazhee of her grandmother or of her other more remote female ascendants, her self acquired or separate property left undisposed of by her at her death shall devolve on such thavazhee, the nearer excluding the more remote. " x x x x " 'Explanation II. The expression 'children ' in the case of an intestate male and the expression 'thavazhee ' in the case of an intestate female shall, for the purpose of Part IV of this Act, include the issue of such intestate male or female how low so ever. " From the explanation, it would appear that the expression 'thavazhee ' in the case of an intestate female includes her issue how low so ever, and the word 'issue ' indicates both males and females. Reading this expression in connection with section 18, Dr. Seyid Muhammed contends that on the death of Bhagavathi Valli, the whole of her separate property left undisposed of by her at her death, devolved on her own thavazhee, that is to say, her issue how lowso ever. In this connection, a question of great nicety was also argued before us as to whether Sivaraman could be said to have survived Bhagavathi Valli or to have died earlier. In the absence of evidence, we need not embark upon an inquiry by the light of presumptions as to when Sivaraman can be said 646 to have died. In the document executed in favour of the answering respondent, Exh. R, dated 1 7 1121 M.E., it is quite clearly stated by the predecessors in title of the answering respondent that Sivaraman was then dead. This constitutes an admission which. has neither been withdrawn nor shown to be incorrect, and is thus binding upon the answering respondent. It follows that whether Sivaraman survived Bhagavathi Valli or died before her, Vasudevan succeeded, as an 'issue ' within the expression 'how low so ever ' of the Explanation, at least to a fractional interest in the property. He would thus be in a position to transfer that interest to the appellant, and the appellant would be a 'person interested ' for the purpose of redeeming the otti. But this can only be if 'lie provisions regarding succession under the Ezhava Act were applicable to Valli. Though in the pleadings, there is no mention that Bhagavathi Valli, had secured an exemption from the Ezhava Act, parties appeared to have joined issue on this subject. The answering respondent filed in the Court a copy of a Gazette notification which, so it was claimed, mentioned Bhagavathi Valli 's name among the persons who were granted exemption from part IV of the Ezhava Act. Section 33, under which such an exemption from the Act could be claimed, reads : "33. (1) On an application made within six months from the commencement of this ' Act (i) by an individual member of an Ezhava tarwad with reference to the provisions of part IV, x x x x the Government may, after making such enquiry as may be necessary and on being 647 satisfied as to the truth of the application, exempt by a notification in the Government Gazette such individual member. .from the operation of the said provisions of this Act. " The plaintiff was cross examined about the address of Bhagavathi Valli to prove that it was the same as shown in the notification. Evidence was also led by the answering respondent to show that Bhagavathi Valli had applied for exemption and obtained it. The appellant did not lead any evidence to show the contrary. It is contended before us that the notification or the deposition of the aforesaid witness cannot be looked into when there is no proper plea or issue about the exemption. It is contended that the plaintiff was taken by surprise when the High Court considered this point, as he did not get sufficient opportunity to rebut it, which he would have done if it had been pleaded and an issue had been framed. In our opinion, the parties understood that the only issue in the case was the application to Bhagavathi Valli of the rules of succession contained in part IV of the Ezhava Act. The appellant was cross examind regarding Bhagavathi Valli 's address, and D.W.1, an advocate, gave evidence that Exh. II was the notification, which showed the exemption obtained by Bhagavathi Valli. The trial judge assumed that Bhagavathi Valli had been exempted from the provisions of part IV of the Ezhava Act, but he felt that did not affect the devolution of makkathayam property according to the provisions of section 32 of the Ezhava Act. He was, therefore, of the opinion that after Bhagavathi Valli 's death, Bhagavathi Valli 's sister Narayani and Narayani 's daughter, Gouri, did not acquire any right in the property. In the appeal court, the learned District Judge observed that in the notification there were more 648 than one Bhagavathi Valli, and therefore, it was impossible to say whether Bhagavathi Valli, the donee under Exh. III, was at all mentioned in the notification. We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not. The parties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mistrial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication: "The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman." and the notification was filed to controvert his allegation. In our opinion, the subject of exemption was properly raised between the parties and considered in the High Court and the courts below. The High 649 Court differed from the District Court with regard to the notification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act. We shall now consider whether the finding on this part of the case given by the District judge or that given by the High Court is correct. II is a notification issued in 1102 M.E. It reads : "Whereas the undermentioned persons have applied to the Government, under Section 33 (1)(i) of the Travancore Ezhava Regulation, Act 3 of 1100 M.E, praying to exempt them from the provisions of Part IV of the said regulation, and whereas the Government have become convinced of the truth of their application, on making enquiries. The Government have exempted each of the following persons, from the provisions of Part IV of the Travancore Ezhava Regulation, Act 3 of 1100 M.E. Huzur, Trivandrum. (By order) 8th January 1927 K. George Chief Secretary to Government." "section No. Full name of the person. Address. Bhagavathi Valli belong Thottuvarambu ing to the branch of Bha Bungalow, Kat gavathi Bhagavathi of akampalli Paku Pinarummoottu tarwad thi, Trivandrum Taluk. 171. Bhagavathi Narayani of do Pinarummootu tarwad 172. Narayani Gouri of do " Pinarummootu tarwad 650 section No. Full name of the person Address "183. Narayanan Lakshmanan Vanchiyoor Pa of Pinarummototu kuthi, Trivand rum." "185. Bhagavathi Valli of do Pinarummoottu 186. Bhagavathi Narayani do It was contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathan Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhaga vathi Valliamma and Bhagavathi Narayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayani 's daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu, that Pinarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvurambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K,L,M, Q and R. He contends that in all these documents except one (Exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in Exh. II and that Bhagavathi Valli at No, 170 was not this Bhagavatht Valli. In Exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M.E. (1935), gave 651 her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi" and stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. It would, therefore, follow that the address as given in Exh.11 does not show that this was some other Bhagavathi Valli. Indeed the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi branch. Further, she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi valli mentioned at No. '185 may or may not be the same Bhagavathi Valli whose name is mentioned in conduction with one Narayanan Lakshmanan of Pinarummoottu, Vanchiyoor Pakuthi, Trivandrum. In the other notification, under which exemption from part VII of the Act was notified, the 'branch of Bhagavathi Bhagavathi of Pinarummoottil tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivandrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vahchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches. 652 We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vesudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these Gouri Narayani joined in executing the document 'R ' in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights. The appeal, therefore, must fail and is dismissed with costs. Appeal dismissed.

The property in the suit originally belonged to one Bhag avathi Parameswaram who created an otti in favour of one Krishnan Marthandam for 3500 fanams (about Rs. 500/ ). Subsequently the latter created a chittoti, Bhagavathi Parameswaram some years later (in 1163 M.E.) made a gift of the property to his wife Bhagavathi Valli. Bhagavathi Valli died in 1105 M.E. She bad an only son Sivaraman who was mar ried to Parvathi Meenakshi and had a son named Vasudevan. Sivaraman left Travancore in 1096 M.E. Both sides are agreed that he died thereafter. But there is no aggreement as to the date of his death. &ad Vasudevan claiming 635 to be the heirs jointly sold the jenmom rights in 1123 M.E. to the present appellant. The appellant brought a suit for the redemption of the otti and recovery of possession of the property from the defendant (present respondent No. 1). The defendant denied that Bhagawathi Valli ever got the jenmom right. He claimed to have obtained both the jenmom right as well as other rights. According to him on Bhagavathi Valli 's death her sister B. Narayani and Narayani 's daughter Gouri were heirs through whom he traced his title. He further contended that even if Meenakshi and Vasudevan got any jenmom right they lost it by the auction sale in O.S. No. 36 of 1100 M. E. For these reasons it was contended that the plaintiff had no title to sue. It is admitted by both parties that the case is governed by the Travancore Ezhava Act, 1100. The trial court and the first appellate court decreed the suit but the High Court reversed the decision of the courts below holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour and was not entitled to redeem the property. The plaintiff thereupon appealed to this Court on a certificate granted by the High Court. A preliminary objection was raised by the respondent about the competency of the certificate granted by the High Court. It was contended that since the suit was valued at 3500 fanams (Rs. 500/ ) this valuation governed the suit for the purpose of the certificate and this value being below the prescribed minimum under article 133 of the Constitution the certificate was not competent. It was alternatively contended that if the valuation was more than Rs. 10,000 the trial court had no jurisdiction to try the suit. It was contended on behalf of the appellant that the ordi nary rule of law was that property was impartable and that section, 32 of the Act made a departure and imposed partibility on the Makkothayam property and the expression 'contrary intention ' contemplated in section 32 was an intention contrary to partibility and such an intention could not be spelled out from exhibit III the gift deed. It was contended that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have the right to redeem the Otti as a person interested and so would the appellant, a transferee from him. Alternatively if the property became that of Bhagavathi Valli alone then Vasudevan would be entitled to succeed to the property left by Bhagavathi Valli by virtue of sections 18 636 and 19 of the Act provided Bhagavathi Valli was not exempted from the operation of the Act under section 33. It was further contended that since the question of exemption was not pleaded by the defendant (respondent) in his written statement and since no issue was framed the High Court ought not to have considered the notification put in by the respondent in his evidence purporting to prove that Bhagavathi Valli was exempted. Finally it was urged that the notification does not in fact prove that she was so exempted since her identity is not established by the notification. Held that for the certificate to be competent the appeal must satisfy two tests of valuation. The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark. There are however cases in which the decree or final order directly or indirectly involves some claims or question to or respecting property above the mark. Such cases are also appealable. The word indirectly ' in such cases coven the real value of the claims which is required to be determined quite apart from the valuation given in the plaint if the property was not required to be valued for the purposes of the suit on the market value. In the present case the High Court found the value to be Rs. 42,000/ and Rs. 80,000/ at the material times. The plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He had asked for possession of the property after redemption and the property as the High Court has found is well above the mark in value. The certificate is competent. The suit as valued was properly laid in the court of first instance and in any case such an objection cannot be raised for the first time in this Court. The working of section 32 does not justify the contention that by reason of the expression 'contrary intention ' only impartibility could be imposed. What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares should be equal unless a contrary Intention was expressed. The gift deed exhibit III in the present case shows that the properties given to the donees are to be taken by each exclusively. Reading sections 18 and 19 it follows that whether Sivaraman survived Valli or died before her Vasudevan would succeed as an issue within the expression 'how low so ever ' of the Explanation to section 19 at least to a fractional interest in the property. 637 But this can only be if Bhagavathi Valli was not exempted from the operation of Part IV of the Act. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagavathi Valli under the Ezhava Act". The subject of exemption from Part TV of the Ezhava Act, was properly raised in the trial Court and was rightly considered by the High Court. The High Court was right in holding that the identity of Bhagavathi Valli had been established and that Bhagavathi Valli was exempted from the operation of the Ezhava Act (Part IV). The present appellant. is not entitled to redeem the otti having never enjoyed the jenmom rights.

Criminal Appeal No. 13 of 1981 From the Judgment and Order dated 26.3.1979 of the Allahabad High Court in Crl. Petition No. 1816 of 1976 Altar Ahmad for the Appellant (not present). V.A. Bobde (Amicus Curiae) for the Respondent. The Judgment of the Court was delivered by NATARAJAN, J. This is an unfortunate case where the High Court has quashed an order of maintenance passed in favour of a minor child Tarana Farooq by the Special Judicial Magistrate No. 1, Rampur under Section 125 Cr. P.C., in exercise of its powers under Section 482 Cr. The High Court has, however, deemed it fit to grant a certificate to the appellant Dukhtar Jahan, the mother of the minor child, under Article 134(1)(c) read with Article 134A of the Con stitution to prefer an appeal to this Court for considera tion of a question of law formulated as under: "Whether, in an application under Section 482 Cr. P.C. the High Court can interfere with concurrent findings rendered by the courts below." As we find the appeal is capable of being disposed of on the basis of other materials, we do not feel called upon to answer the question of law formulated for consideration by the High Court. We may now have a look at the facts of the case. The appellant Dukhtar Jahan and the respondent Mohammed Farooq who were already related as first cousins, being the issues of two sisters, were married on 11.5.1973. The marriage lasted only for about 17 months 1090 since the respondent divorced the appellant on 16.10.1974. However, when the parties were in wedlock the appellant delivered a female child named Tarana Farooq on 5.12.1973. After the respondent effected the divorce in October 1974, the appellant filed a petition under Section 125 Cr. P.C. in the court of the Special Judicial Magistrate No. 1, Rampur for grant of maintenance to her and the child at Rs. 150 p.m. and Rs.50 p.m. respectively. The appellant however gave up the claim of maintenance for herself as the stand of the respondent was that he had paid her the Maher and the amount payable for the Iddat period and that he had also returned all the articles given by way of dowry. The enquiry in the petition was therefore, confined to the claim of maintenance for the child Tarana. The respondent refuted his liability to provide mainte nance to the child on the ground that he was not the father of the child and that the child had been conceived even before marriage and the appellant had suppressed the fact of her being enceinte at the time of the marriage. While the appellant examined herself and another witness to substantiate the claim for maintenance for the child, the respondent examined three witnesses besides himself to refute the claim. Of those three witnesses, two have spoken about the payment of Maher etc. to the appellant and hence we need mention only about the testimony of D.W.2 Abdul Asad. This witness was a Panchayat Sevak and he has deposed that he made entries in the birth register (Exhibit Kha I) about the birth of the girl child Tarana Farooq to the respondent and the appellant on the basis of information given to him by the Village chowkidar by name Kalicharan. Obviously this witness has been examined to show that the respondent was not the informant of the birth of the child in order to neutralise the effect of the entry in the birth register. The Trial Magistrate, after taking into consideration the evidence adduced in the case and the conduct of the parties held that since the child had been born when the parents were in wedlock and since the respondent had not discarded the wife or disowned the child forthwith but had waited for about 10 months to divorce the appellant, it would be reasonable to hold that the child should have been conceived to the respondent and as such he is by law obli gated to provide maintenance to the child. After taking into consideration the respondent 's income the learned Magistrate awarded maintenance to the child at Rs.30 per month as against the claim of Rs.50 p.m. 1091 A Revision preferred against the order of the Magistrate to the Sessions Judge, Rampur proved of no avail and hence the respondent filed Criminal Misc. Petition No. 1816 of 1978 to the High Court of Calcutta under Section 482 Cr. P.C. for quashing the order of maintenance. A Single Judge of the High Court has allowed the petition and quashed the order of maintenance in favour of the child. The learned Judge has taken the view that since the child had been born in about 7 months ' time from the date of marriage and since the child was not claimed to be prematurely born it has to be neces sarily held that the appellant should have conceived even before she married the respondent and consequently the respondent cannot be held to be the father of the child and called upon to pay maintenance to it. As the order of the High court appeared to be prima facie unsustainable and as the respondent failed to enter appearance in spite of notice being served on him, we re quested Mr. Bobde to appear as amicus curiae for the re spondent, and we are thankful to him for his assistance. The admitted facts are that the appellant and the re spondent were close relations and not strangers before marriage. They were married on 11.5.1973 and the girl child was born on 5.12.1973. The respondent did not divorce the appellant immediately after the child birth or even two or three months later but he divorced her only on 16.10. The child birth took place in the house of the respondent himself and hence there is no question of the birth of the child not being known to the respondent immediately. In spite of all these factors the High Court has allowed itself to be influenced by only two factors viz. the child birth taking place in about 7 months ' time from the date of marriage and the child being claimed to be a full grown one at the time of birth. Examining the matter, we feel the learned Judge has failed to view the case in its entire conspectus and this has led to miscarriage of justice. On the sole ground that the child had been born in about 7 months ' time after the marriage it cannot be concluded that the child should have been conceived even before the respondent had consummated the marriage. Giving birth to a viable child after 28 weeks ' duration of pregnancy is not biologically an improbable or impossible event. In "Combined Textbook of Obstetrics and Gynaecology" by Sir Gugald Baird 7th Edition at page 162 it is reported as under: 1092 "In the case of Clark vs Clark (1939) an extremely small baby, born alive 174 days after last possible date when intercourse with the husband could have taken place, and which survived, was held to be legitimate. While it is most unusual for babies of this weight for gestation period to survive it does occasion ally happen. " The learned Judge ought not, therefore, to have rushed to the conclusion that a child born in about 7 months ' time after the marriage of the parents should have necessarily been conceived even before the marriage took place. In so far as the second aspect is concerned viz. about the appel lant 's statement that the child was not born prematurely, the High Court has failed to bear in mind that the appellant is a rustic and illiterate woman and as such her opinion could suffer from error of judgment. Another serious infirmity noticed in the judgment is that the learned Judge has completely lost sight of Section 112 of the Indian Evidence Act. Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hun dred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotton. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitima tion of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. To drive home the point, we may refer to some of the reported cases where the courts have applied the rule of evidence contained in Section 112 of the Indian Evidence Act and declared the legitimacy of a child born during wedlock, even though the child had been born prematurely. In Mahbub Ali vs Taj Khan,, A.I.R. 1915 Lahore 77 (2) it was held that a boy born about 7 months ' after his father and mother were lawfully married and who had opportunity or access to each other at the time he could have been begotten, must be held to be the legitimate son of his parents. In Kahan Singh vs Natha Singh, A.I.R. 1093 1925 Lahore 414 the defendant 's father was married to the defendant 's mother on 2nd August 1889 and the defendant was born on 23rd January 1890. Even so it was held "that the defendant being born during the continuance of the marriage between his parents, he is his father 's legitimate son unless it is shown that his parents had no access to each other at any time when he could have been begotten and that it is immaterial how soon after the marriage the defendant was born." In Sibt Mohammad vs Md. Hameed, A.I.R. 1926 Allahabad 589 it was held that a Muhammedan child born during the continuance of a valid marriage between its parents but within 6 months of the date of its parents ' marriage must be held to be a legitimate child by reason of Section 112 of the Evidence Act. In Ponnammal vs Addi Aiyan, A.I.R. 1953 TRA CO 434 [Vol. 40, C.N. 169] the paternity of a child born to a married woman after 8 months ' from the date of marriage was disputed as the husband alleged that he was incapacitated from having sexual intercourse for one month from date of marriage due to some operation he had to undergo and hence the child was not his. The court held that even assuming that the husband was so incapacitated, the time available, viz, over seven months, was sufficient to raise the presumption that he was the father of the child. Even without reference to Section 112 of the Indian Evidence Act if we take into consideration the facts of the case and the conduct of the parties and the attendant cir cumstances we find a preponderance of materials to support the case of the appellant rather than that of the respond ent. The relevant features which have escaped the attention of the High Court can be catalogued as under: If the appellant was pregnant even at the time of the marriage she could not have concealed that fact for long and in any event the respondent would have come to know of it within two or three months of the marriage and thereupon he would have immediately protested and either discarded the appellant or reported the matter to the village elders and relatives and sought for a divorce. On the contrary the respondent had continued to lead life with the appellant in a normal manner till the birth of the child. Even the con finement appears to have taken place in his house as other wise the child 's birth would not have been registered in his village. The respondent had not disowned the child immedi ately after its birth or sent away the appellant to her parents ' house. Such would not have been his conduct if he had any doubt about the paternity of the child. Moreover, there is an entry in 1094 the birth register (Exhibit Kha 1) setting out the respond ent as the father of the child. Though the respondent has attempted to neutralise the entry in Exhibit Kha 1 by exam ining D.W.2 and making it appear that the entry had been made on the basis of information given by a third party, the lower courts have refused to give credence to the vague and uncorroborated testimony of D.W.2. It is also significant to note that the respondent had allowed eleven months to pass before effecting a divorce. By his inaction for such a long period the respondent has given room for inference that the divorce may have been effected for other reasons and not on account of the appellant giving birth to a child conceived through some one else. Lastly, even if the child had been born after a full term pregnancy it has to be born in mind that the possibility of the respondent having had access to the appellant before marriage cannot be ruled out because they were closely related and would therefore have been moving in close terms. All these factors negate the plea of the respondent that the minor child was not lathered by him. The proper course for the High Court, even if entitled to interfere with the concurrent findings of the courts below in exercise of its powers under Section 482 Cr.P.C., should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full fledged trial, that the child was not born to him and as such he is not legally liable to maintain it. Proceedings under Section 125 Cr. P.C., it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. The High Court was, therefore, clearly in error in quashing the order of maintenance, in favour of the child. The appeal has, therefore, to succeed and we accordingly allow the appeal and set aside the order of the High Court and restore the order of maintenance passed by the trial court. S.R. Appeal allowed.

Section 12(2) of the Foreign Exchange Regulation Act, 1947 which is designed to prevent wholesale or partial evasion of repatriation of earnings from export of goods is to the effect that 'where any expert of goods has been made to which a notification under sub section (1) applies, no person entitled to sell, or procure the sale of the said goods shall, except with the permission of the Reserve Bank . . ". In R. Venkata Subbu & Ors. vs The Direc torate of Enforcement, Enforcement Directorate, New Delhi & Anr., ILR Vol p. 18, the Madras High Court held that section 12(2) covers not only sale proceeds of goods exported "for sale" but also "on sale" in the context of sales completed before export, while the Calcutta High Court in the judgment under appeal held that it covers sale pro ceeds of goods exported "for sale" only. In view of the conflict of the opinions, the present appeal is by certifi cate. Allowing the appeal and remitting the matters to the Competent Authority, the Court, HELD: 1.1 The expression 'no person entitled to sell or procure the sale of the said goods ' cannot be so narrowly construed (as referable to goods which have already been exported), so as to govern the scope of section 12(2) in such a truncated manner which renders it virtually impotent in so far as transactions of 'exports on sale ' are con cerned. Too much is being read into too little for no more laudable a purpose than to paralyze the provision. The expression does not necessarily induce one to the conclusion that the legislature wanted to prevent abuse in the context of 'export for sale ' only. The expression is mean 982 ingful, relevant, and can co exist in the context of abuse arising from 'exports on sale ' from completed transactions as well. [985H;986B] 1.2 The said expression has been employed by the Legis lature merely in order to indentify the accountable persons and is merely descriptive in that sense. The said expression does not restrict the operation of the Act to the persons who have not yet sold the goods. One would have to take a quantum jump in order to conclude that persons referred to in section 12(2) are the persons who have not yet sold the goods but are entitled to sell the goods in future merely because the expression 'entitled to sell ' has been employed. The persons who have exported the goods to a foreign buyer, are not sought to be excluded from the operation of section 12(2). Clause (a) in terms adverts to the sale of goods being delayed. Clause (b) of section 12(2) adverts to pay ment for the goods, otherwise than in the prescribed manner, and also envisions a case where the payment does not repre sent the full amount payable by the foreign buyer in respect of the goods. Clauses (a) and (b) are compatible both with transactions of export on sale as also to transactions of export for sale. They are compatible with all transactions pertaining to both types of sales. There is no warrant to assume that the Legislature has not made any provision in order to ensure that the full amount of the sale price is repatriated and foreign exchange earned therefrom is not lost to the Nation regardless of whether it is in respect of 'export on sale ' or 'export for sale '. [986F. 987A C] 1.3 The avowed and the evident object of section 12 is to ensure that the Nation does not lose foreign exchange which is very much essential for the economic survival of the Nation. The exporter cannot be allowed to syphon away a part of the foreign exchange or to deprive the Nation of the foreign exchange earned by the exports. Such is the philoso phy of section 12. To take the view that the legitimate National interest in the sphere of preservation of foreign exchange has relevance only in the context of transactions of exports for sales and that the Legislature exhibited total unconcern for the foreign exchange earned in the context of transactions of completed sales or consignment sales, is to attribute to the Legislature irrationality. And to impute to the Legislature that it did not know its job inasmuch as it has tackled the problem only partially with out any rational basis for excluding the transactions of completed sales from the purview of the legislation which would substantially erode or defeat the purpose of the legislation. When it is equally possible to take the view which would be conducive to the conclusion that there is no lacuna in the legislation, it would be unreasonable to take the view that the Legislature has left a lacuna eitber by 983 negligence or by lack of foresight or because it did not know its job. [987B F] 2.1 Section 10 has no application in respect of foreign exchange earnings related to export of goods. Section 10 Is designed primarily to impose an obligation on persons who have a right to receive any foreign exchange from a person resident outside India. This section has nothing to do with the foreign exchange earned by export of goods. The entire matter pertaining to payments for exported goods and the foreign exchange earnings arising therefrom has been dealt with in section 12 which is a complete Code in itself. Section 12 has been very carefully designed. Every possible situation has been conceived of and appropriate prophylactic measures to ensure the preservation of foreign exchange and prevention of syphoning off the foreign exchange, which is very much essential to the economic life of the Nation have been embedded therein. The entire subject of foreign ex change earnings relatable to export of goods has been spe cifically and specially dealt with in section 12. It would therefore be futile to search for an alibi in section 10 merely in order to support the plea that section 12 does not take within its fold the foreign exchange earnings relatable to transactions of completed sales. [988A E] 2.2 On a plain reading of section 10, the matter per taining to the foreign exchange earned by exports in the context of completed sales will not directly fall within the ambit of it. It will have to be strained beyond the point of endurance in order to accommodate this aspect. Section 10 is akin to a complementary provision which deals with preserva tion of foreign exchange which does not fall within a spe cific provision like section 12. What is more, if completed transactions are excluded from section 12, the purpose of the legislation will not be served, because sub section (6) of section 12 which has been designed to ensure compliance with the provisions made in section 12(1) to section 12 (5) cannot be availed of. In that event, in regard to the per sons who syphon off foreign exchange earned out of the transactions in the context of a completed sale or export on sale they cannot be dealt with under section 12(6) and no sanction to ensure compliance will be available. The Act will be thus rendered toothless to ensure compliance with evasion in the context of a completed sale. There is accord ingly no compulsions of law, logic, or philosophy to adopt such a view. [988F; 9B?A B] R. Venkata Subba & Ors. vs The Director of Enforcement, Enforcement Directorate, New Delhi & Anr., ILR Vol. 3 Mad. , approved.

Appeal No. 43 of 1982. From the Judgment and Order dated 7.12.1979 of the Delhi High Court in Writ Petition No. 1754 of 1979. AND Writ Petition (Civil) No. 265 of 1980. (Under Article 32 of the Constitution). P.K. Pillai for the Appellant. R.K. Maheswari for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The petitioner claims exemption under section 115(4)(a) of the Delhi Municipal Corporation Act, 1957 from the liability of paying general tax leviable under the said section. The case of the petitioner is that it is a non profit making registered society and its object is to organize and run schools in Delhi and elsewhere with a view to promote education and welfare. Accordingly it is running a school with the name of General Raj 's School in Delhi in a building constructed for that purpose. A demand was made by the appropriate authority of the Municipal Corporation for payment of general tax under the Act and the exemption claimed by the petitioner was rejected. In this situation the petitioner moved the Delhi High Court under Article 226 of the Constitution for appropriate relief. The writ peti tion was dismissed in limine by the following order: "The only question that arises for consideration is whether the School run by the Society falls within the ambit of clause (4) of Section 115 of the Delhi Municipal Corpora tion Act. Reading this section it is obvious that exemption for levy for general tax could be granted if the Society which is running the school was a Society for charitable purposes. Charitable purpose is defined in the explana tion to clause (4) of Section 115. No doubt the School is impart 68 ing education but in order to qualify for exemption, it had to give education and medi cal relief. Admittedly fees are charged from students. Mere imparting of education cannot be called giving relief. We, therefore, find nothing wrong with the stand taken by the Municipal Corporation of Delhi. Dismissed. " The present Civil Appeal by special leave is directed against this judgment. The learned counsel for the petitioner has contended that in view of the language of section 115(4)(a), quoted below, it is not correct to suggest that to qualify for exemption from the tax liability it is necessary for a society to offer medical relief: "(a) lands and buildings or por tions of lands and buildings exclusively occupied and used for public worship or by a society or body for a charitable purpose: Provided that such society or body is supported wholly or in part by voluntary contributions, applies its profits, if any, or other income in promoting its objects and does not pay any dividend or bonus to its members. Explanation "Charitable purpose" includes relief of the poor, education and medical relief but does not include a purpose which relates exclusively to religious teach ing;" The argument is well founded. The test of 'charitable pur pose ' is satisfied by the proof of any of the three condi tions, namely, relief of the poor, education, or medical relief. The fact that some fee is charged from the students is also not decisive inasmuch as the proviso indicates that the expenditure incurred in running the society may be supported either wholly or in part by voluntary contribu tions. Besides, the explanation is in terms inclusive and not exhaustive. The impugned judgment must, therefore, be held to be erroneous. Mr. B. Sen, the learned counsel representing the respondent Municipal Corporation, contended that although he is not in a position to support the reasoning given by the High Court, the petitioner is for other reasons not entitled to the exemption claimed and the High Court 's judgment is, therefore, correct. He urged that in view of the 69 relevant facts and circumstances in the case, as is evident by the assessment order, the claim of the petitioner that its purpose is charitable cannot be accepted. Since, the High Court has not adverted to the facts of the case relied upon by the learned counsel for the parties and has not expressed its opinion on the other aspects of the case, we are of the view that the case should go back on remand to it for fresh decision. During the pendency of the case in this Court the parties have filed further affidavits. It will be open to them to file additional affidavits and other materi als in support of their respective cases. This, however, they should do within one month from today, so that the case which is an old one may be disposed of expeditiously. Civil Misc. Petition No. 11315 of 1989 has not been pressed and is, therefore, dismissed; and the Writ Petition No. 265 of 1980 is permitted to be withdrawn as prayed for on behalf of the petitioner. Civil Appeal No. 43 of 1982 is allowed and the case is remitted to the High Court for fresh decision in the light of the observations made above. There will be no order as to costs of this Court. In view of the urgent nature of the case, the High Court is requested to dispose of the writ petition as expeditiously as may be possible. S.S. Appeal al lowed.

This appeal has been filed by the brother of the detenu T.A. Sirajudeen who was detained pursuant to an order of detention passed by the first respondent under Section 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Ex change and Smuggling Activities Act, 1974 with a view to preventing the said detenu to take part in the smuggling activities of Gold. The circumstances under which the deten tion order in question was passed may now be stated. On 30.11.1986, Superintendent of Central Excise, Manjeri Range searched the residential premises of the detenu but did not discover any contraband goods. However on question ing the detenu confessed that he had burried eleven gold biscuits in the back yard, which were recovered after dig ging the ground and the statement of the detenu was recorded under Section 108 of the Customs Act, that very day. On 9.12.1986 again the Authorities concerned searched the residence of the detenu in the belief that there was concealment of more gold. During the search the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of the house. The detaining authority taking into consideration the fact of seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached subjective satisfaction and passed the impugned order of detention on 7.10.87. The detenu was arrested on 18.1.1988 and detained in Central Prison, Trivandrum from 19.1.1988 onwards Grounds of detention and other relevant material were furnished to the detenu on 21.1.1988. The detenu made representation for revocation of the detention order on 25.1.1988 which was rejected 946 on 11.4.1988. The first respondent made a reference under Section 8 of the Act on 5.5.88 to the Advisory Board which reported that in its opinion sufficient cause existed for the detention of the detenu. The appellant challenged the detention of his brother in the High Court by means of Writ Petition but, having failed, he filed this appeal by special leave. The appellant primarily urged two contentions before this Court. It was urged that there was no proximity in time to provide a rational nexus between the alleged prejudicial activity and the passing of the impugned order of detention after 11 months i.e. on 7.10.87 and as there was no reasona ble and satisfactory explanation for the said long delay, the detention order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention stood snapped. The delay throws doubt on the genuineness of the subjective satisfaction arrived at by the detaining authori ty. Secondly it was contended that the representation sub mitted by the detenu on 25.1.88 challenging the impugned order clamped on him had been disposed of by a delay of 72 days i.e. on 11.4.88 and this long and avoidable delay vitiates the detention order being violative of article 22(5) of the Constitution. The first respondent in the counter affidavit explained the delay and attributed the same to the extensive search of various premises in different places and examination of persons apart from departmental delays. It is only after completing the necessary investigation customs authorities sponsored the case for detention of the detenu. Allowing the appeal, this Court, HELD: There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of seizure of the eleven gold biscuits from the back court yard of the house of the detenu. The test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of deten tion. However, when there is undue and long delay between the prejudicial activity and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactionly examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned and further the court has to investi gate whether the causal connection has been broken in the circumstances of each case. No hard and fast rule 947 can precisely be formulated and guidelines can be laid down in that behalf. [951G 952A] When there is unsatisfactory and unexplained delay between the date of the order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. [954C] See Gora vs State of West Bengal, ; ; Hemlata Kantilal Shah vs State of Maharashtra, ; ; Golam Hussain @ Gamal vs Commr. of Police of Calcutta & Ors., ; ; sk Serajul vs State of West Bengal, ; Rekhaben Virendra Karadia vs State of Gujarat & Ors., ; ; Harnek Singh vs State of Punjab, ; ; Shiv Ratan Makin vs Union of India and Others, ; Smt. K. Aruna Kumari vs Gov ernment of Andhra Pradesh & Ors., ; and Rajendra Kumar Natvarlal Shah vs State of Gujarat & Ors., ; The Court in the instant case, noticed from the Counter affidavit filed on behalf of the first Respondent, that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of passing of the order and keeps stunned silence on that score. Counsel when queried by the Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order made on 7.10.1987, frankly admitted that he could not do so. Under the circumstances, the Court held that leaving apart the question of delay in passing the order of detention, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months of the passing of the detention order and this non explanation throws a considerable doubt on the genuineness of the sub jective satisfaction of the detaining authority vitiating the validity of the order of detention. [954E 955A] The long interval in receipt of the representation and the comments of the Collector of Customs, Cochin, indicate the casual and indifferent attitude, displayed by the au thorities concerned dealing with the representation. The manner in which the representation has been dealt with reveals a sorry state of affairs in the consideration of the representation made by the detenu. [955G 956A] 948 The Court took firm view that the representation of the detenu has not been given prompt and expeditious considera tion and was allowed to lie without being properly attended to. The delay of 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority. The unexplained delay in disposal of the representation of the detenu is violative of Article 22(5) of the Constitution of India rendering the order of detention invalid. [956H 957B] The Court set aside the judgment of the High Court, quashed the order of detention and directed that the detenu be set at liberty forthwith. [957C] Rama Dhondu Borade vs Shri V.K. Saraf, Commissioner of Police & Ors.

Appeal No. 49 of 1958. Appeal from the judgment and decree dated April 17, 1954, of the former Nagpur High Court in F. As. Nos. 95 and 103 and 1946. section P. Sinha, Yogeshwar Prasad and M. 1. Khowaja, for the appellants. Achhru Ram and Ganpat Rai, for respondents Nos. 1 (a) to 1 (d), (2) and 4. 1962. April 10. The Judgment of the Court was delivered by MUDHOLKAR, J. This is an appeal by certificate from the decree of the High Court of Nagpur dismissing the appellants ' suit for setting aside sale of two villages mauza Amaldihi and mouza Gondhami situate in Mungali tehsil, district Bilaspur. It is common ground that the two villages, along with several others, were the Joint family property of the appellant, and their father the third 650 defendant, Gorelal. On April 8, 1944, Gorelal, acting for himself and as guardian of his minor son Balramdas, appellant No. 2 and Radhakrishnadas, appellant No. 1 describing himself as a major executed a sale deed in favour of two persons, Pandit Ramlal, son of Motiram, defendant No. 2 and Kaluram the first defendant for a consideration of Rs. 50,000/ . It was stated in the sale deed that the executants were transferring full 16 annas interest in the village Amaldihi and Gondkhami ', 'together with sir and khudkast lands, grass, kothar padia gochar rivers, brooks, wells, tanks, bandkies, orchards and gardens and houses and the like, as well &is the cultivated and the uncultivated lands in the village with all the rights and privileges. " The entire sixteen annas share in mauza Gondkhami and twelve annas share in mauza Amaldihi was sold to Kaluram for Rs. 37,500/ and the remaining four annas share of Amaldihi to Pandit Ramlal for Rs. 12,500/ . Out of the consideration of Rs. 50,000/ a sum of Rs. 30,491/8/ was kept with Kalaram for satisfying a mortgage decree obtained against the family by one Gayaram in respect of these two village; as ' well as two other villages. Similarly a further amount of Rs. 2,000/ was allowed to be retained by Kaluram for paying the land revenue due in respect of these villages. The balance of the amount was received in cash. It was further stated in the sale deed that this amount was required for performing the marriages of the appellant No. 1 Radhakrishnadas and Gorelal 's daughter Ramjibai, who were both stated to be majors. The possession of the property sold was handed over to the defendant 1 and 2 who are respondents 1 and 2 to the appeal. On May 5, 1945, the two appellants instituted a suit out of which this appeal arises. It was contended in the suit that since the income of the 651 family was Rs. 7,000/. per year, considerable savings could be made out of it after defraying the expenses of the family. There was, therefore, no necessity for executing the sale deed. It was further stated that the consideration for the sale was extremely low, bearing in mind the value of the two villages. It was further stated that the appellant No. I who was one of the executants of the sale deed was in fact a minor on the date of its execution and, therefore, the document is void in so far as his interest in the property sold is concerned. It was then stated that the sale deed did not purport to transfer the cultivating rights in the sir lands in the two villages and, therefore, in any case only the proprietary interest in the sir land could pass to the respondents 1 and 2 under the sale. The trial court negatived the appellants ' contention about the want of legal necessity for the sale and found as a fact that Rs. 10,000 were required for the marriages of the appellant No. 1 and his sister Ramjibai, Rs;. 7, 508 8 0 for paying various creditors, Rs. 1,655 2 0 for the payment of land revenue and the balance to satisfy the mortgage decree of Gayaram Sao. It, however, found that the appellant No. 1 was a minor at the date of the execution of the sale deed and that its execution by him was void and ineffective. But it held that he is bound by the sale deed as his father Gorelal, who is respondent No. 3 to the appeal, is to be deemed to have executed the sale deed as Manager of the family. It, however, upon a construction of the sale deed, came to the conclusion that cultivating rights in sir were not transferred thereunder and, therefore, passed a decree in favour of the appellants for possession of the sir lands in the suit as these lands had become their ex proprietary occupancy lands by virtue of section 49 (1) of the C. P. Tenancy Act, 1920 (C. P. 1 of 1920). The appellants preferred an appeal before the High Court against that part of the decree which dismissed their claim 652 for the possession of their share in the villages. The respondents 1 and 2 preferred a cross appeal. These appeals were heard together and while the appellants ' appeal was dismissed, that of the respondents was allowed. Before us Mr. section P. Sinha accepts the position that Rs. 45,000/. out of the consideration of Rs. 50,000/ was in fact for debts binding on the family, but contends that even so it cannot be said that there was legal necessity for the sale. His argument is that a sum of Rs. 5,000 or so for which, according to him, legal necessity had not been established was not a negligible part of the consideration of Rs. 50,000/ . This argument is based upon a misapprehension of the true legal position. It is well established by the decisions of the Courts in India and the Privy Council that what the alience is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. In this connection we may refer to two decisions of the Privy Council. One is Sri Krishan Das vs Nathu Ram (1). In that case the considera tion for the alienation was Rs. 35,000/ . The alience was able to prove that there was legal necessity only to the extent of Rs. 3,000/ and not for the balance. The High Court hold that the alienation could be set aside upon the plaintiff 's paying Rs. 3,000/ to the alience. But the Privy Council reversed the decision of the High Court observing that the High Court had completely misapprehended the principle of law applicable to a case of this kind. What the alience has to establish is the necessity for the transaction. If he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this, as has been stated by the Privy Council in some other cases, is that the (1) I L.R. 49 All. 149 (P.C.) 653 alience can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself. This decision was followed by the Privy Council in Niamat Rai vs Din Dayal where at p. 602 and 693 it has observed : "It appears from the judgment of the learned Judges of the High Court that if they had been satisfied that the whole of the Rs. 38, 400 paid out of the sale proceeds was paid in discharge of debts incurred before the negotiation of sale, they would have been of opinion that the sale ought to have been upheld. With this conclusion their Lordships agree, but they are of opinion that undue importance was attached by the learned Judges to the question whether some of the payments where made in discharge of debts incurred i n the interval between the negotiation of the sale and the execution of the sale deed. Even if there had been no joint family business, proof that the property had been sold for Rs. 43,500 to satisfy pre existing debts to the amount of Rs. 38,000 would have been enough to support the sale without showing how the balance had been applied, as held by their Lordships in the recent case of Krishan Das vs Arathu Ram. (2) " Both these decisions stale the correct legal position, Mr. Sinha 's argument must, therefore, be rejected. His next argument is that the appellant No. 1 Radhakrishnadas having been found to be a minor on the date of the transaction, that transaction cannot bind his interests. If the appellants ' father, Gorelal, who was admittedly the manager of the family, had not joined in the sale deed, the appellant No. 1 could have contended with profit that the transaction does not bind him. As it is, his joining (1) 1. L. R (2) 1 L. R. 49. 149 (P.C.) 654 as an executant in the sale deed does not make any difference. The fact that sale deed had been executed also by his father who was the manager of the family makes the transaction binding upon him just as it is admittedly binding upon his brother, the second appellant, who was then a minor. Mr. Sinha, however, contended that the fact that the appellant No. I was required by the alience, respondents 1 and 2. to join in the transaction clearly shows that Gurelal in executing the sale deed did not and could not act for him. We cannot accept the argument. For ascertaining whether in a particular transaction the manager purports to act on behalf of the family or in his individual capacity one has to see the nature of the transaction and the purpose for which the transaction has been entered into. A manager does not cease to be a manager merely because in the tran saction entered into by him a junior member of the family, who was a major, or believed to be a major also joined. It is not unusual for alienees to require major members of the family to join in transactions entered into by managers for ensuring that later on no objections to the transaction are raised by such persons. Further, such circumstance is relevant for being considered by the court while determining the existence of legal necessity for such a transaction. But that is all. Here we find that Gorelal acted not merely for himself but also expressly for his minor son appellant No. 2. The money was required partly for paying antecedent debts, partly for paying public demands, partly for paying other creditors and partly for performing the marriages of appellant No. 1 and the latter 's sister Ramjibai. It is thus clear that Rs. 45,000/ out of the consideration of Rs. 50,000/ were required for the purposes of the family. Even where such a transaction has been entered into solely by a manager it would be deemed to be on behalf of the family and binding on it. The position is not worsened by the fact that 655 a junior member joins in the transaction and certainly not so when the joining in by such junior member proves abortive by reason if the fact that member has no capacity to enter into the transaction because of his minority. In this connection we may make a mention of three decisions Gharib Ullah vs Khalak Singh (1); Kanti Chunder Goswami vs Bisheswar Goswami (2); Bijrai Nopani vs Pura Sundary Dasee (3) each of which proceeds upon the principle that if one of the executants to a sale deed or mortgage deed has the capacity to bind the whole estate, the transaction will bind the interest of all persons who have interest in that estate. We have, therefore, no doubt that the second contention of Mr. Sinha is equally devoid of substance. Lastly, Mr. Sinha contended that the High Court was in error in reversing the decree of the trail court in so far as the sir land is concerned. He has laid particular stress on the fact that the sale deed at no place says in express terms that cultivating rights in sir land have also been trans ferred and said that the absence of such a recital in the sale deed clearly entitles the alienor to retain possession of the sir land, under the exception set out in cl. (a) of section 49 (1) of the C. P. Tenancy Act. The relevant portion of section 49(1) of the Act runs thus: "A proprietor who loses under a transfer his right to occupy his sir land as a proprietor, shall, at the date of such loss, become an occupancy tenant of such sir land except in the following cases, (a) when a transfer of such sir land is made (1) I.L.R. 25 All. 407,415 (P.C.) (2) F.B. (3) 656 by him expressly agreeing to transfer his right to cultivate such sir land. . " What this provision no doubt requires is an express agreement between the transferor and the transferee concerning the transfer of the cultivating rights in sir land. We have already quoted the Precise language used in the document describing the interest which has been transferred under the sale deed. The recital shows that the executant of the sale deed not only transferred sir and khudkast lands, cultivated and uncultivated lands, but transferred these properties along with "all rights and privileges". If the intention was not to transfer the cul tivating rights in sir lands the concluding words were not necessary. Each interest which has been specified in the recital is governed by the concluding words ,all the rights and privileged contained in that recital. In the absence of these words what would have passed under the sale deed, in so far as the sir land is concerned, would have been only the proprietary interest in that land. The question is, what is the effect of the addition of those words ? According to Mr. Sinha they only emphasise the fact that the entire proprietary in the sir land is transferred. If we accept the interpretation then those words would be rendered otiose. That would not be the right way of interpreting a formal document. To look at it in another way, where a person transfers sir lands together with "all rights and privileges" therein he transfers everything that he has in that land. which Must necessarily include the cultivating right. It would follow from this that where there is a transfer of this kind no kind of interest in sir land is left in that person thereafter. Mr. Sinha further said that when the statute requires that cultivating rights in sir land must be expressly transferred it makes it obligatory on the parties to say clearly in the documents that cultivating rights in the sir land have also been transferred. We see no reason for placing 657 such an interpretation on the provisions of cl. (a) of section 49(1) of the C. P. Tenancy Act. When it says that the transfer of cultivating rights in sir land has to be made expressly all that it means is that a transfer by implication will not be enough. Finally Mr. Sinha 's point is that the words "all the rights and privileges" in the recital do not govern the interests specified in the clause just preceding these words but they govern following words "sixteen anna in muza Gondkhami and twelve anna in mauza Amaldihi to Seth Kaluram etc. " Apart from such a construction rendering the expression meaningless it would be ungrammatical to read the expression as applying to "sixteen anna in mauza Gondkhami and twelve anna in mauza Amaldihi etc. " Therefore, there is no substance in the appeal and accordingly we dismiss it with costs. Appeal dismissed.

R and his father executed a sale for Rs. 50,000/ transfer. ring 16 annas interest in two villages belonging to the joint family ,together with sir and khudkashat lands. . as well as the cultivated and the uncultivated lands in the village with all the rights and privileges". Subsequently. R filed a suit to set aside the sale on the grounds that actually he was a minor when he executed the sale deed and that the legal necessity was only for Rs. 45,000/ . He further contended that the cultivatory rights in the sir lands were not transferred and claimed possession over them. Held, that the alienation was for legal necessity and was valid and binding, The alience was only required to establish legal necessity for the transaction and it was not necessary for him to show that every bit of the consideration was applied for meeting family necessity. The transaction being for legal necessity the father was competent to execute the sale deed binding on the entire family and the joining of R, even though he was a minor, did not affect its validity or binding character. 649 Sri Krishan Das vs Nathu Ram, 1. L. R. 49 All. 149 (P. C.) and Naimat Rai vs Din Dayal, 1. L. R. relied on. Gharib Ullah vs Khalak Singh, I. L. R. 25 All. 407 (C.) Kanti Chunder Goswami vs Bisheswar Goswami, 25 Cal.585 Biraj Nopani Pura Sundary Dasee, C.), referred to. Held, further, that cultivating rights in the sir lands bad also been expressly transferred to the vendees by the sale deed. The provisions of section 49 (1) of the C. P. Tenancy Act, 1920, that there must be an express agreement between the transferor and the transferee concerning the transfer of the cultivating rights in sir land are satisfied where the sale deed not only transferred sir and Khudkashat lands, cultivated and uncultivated lands but transferred these properties along with "all rights and privileges", since they would include cultivating rights in sir land.

ivil Appeal No. 1115 of 1962. Appeals by special leave from the judgments and orders dated February 16,26, 1960, of the Punjab High Court in Civil Misc. No. 1212 C of 1959 and Regular First Appeal No. 44 of 1955. D.R. Prem and P.D. Menon, for the appellant. 469 Veda Vyasa, K. K. Jain, for P.C. Khanna, for respondent. April 30. The judgment of the Court was delivered by RAGHUBAR DAYAL J. The facts leading to this appeal, by special leave, against the orders of the high Court of Punjab are these. Ram Charan obtained a decree for money against the Unioun of India on January 6, 1955. The Union of India presented an appeal on April 6, 1955, in the High Court. Ram Charan, the sole respondent, filed a cross objection on July 31, 1955. On February 6, 1956 the High Court passed an order in connection with the surety bond. Ram Charan was represented at the proceedings. Ram Charan died on July 91, 1957. On March 18, 1958 an application was presented to the High Court on behalf of the appellant under O. XXII, r. 4, read with section 151, Code of Civil Procedure, stating that Ram Charan died on July 21, 1937, that the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt of his death on February 3, 1958, and that the deceased had left as his legal representatives, an adopted son and a widow. It was prayed that these legal representatives be brought on record in the place of the deceased respondent. The affidavit filed in support of this application did not convey any further information and it was solemnly affirmed by the dependent that the averments in the affidavit were true to his belief The deponent was no other than the Divisional Engineer, Telegraphs, Ambala Cantonment. On May 13, 1958, the widow of Ram Charan applied that she alone was the legal representative of Ram Charan under a will and that the alleged adopted son was not the legal representative. The appellant 's application for bringing on record the 470 legal representatives of the deceased Ram Charan came up for hearing on May 14, 1958. The Court ordered the application to be heard at the time of the hearing of the appeal as it was pointed out that there was a difference of opinion in the Court as to whether limitation under 0. XXII of the Code started from the date of death or from the date of knowledge of death. Subsequently, on an application on behalf of the legal representatives, it was ordered that the question of abatement be decided first and thereafter the printing of the record be taken on hand. The application for substitution came up for decision on February 16, 1960. It was dismissed, the Court holding that the Union of India had failed to show that it was prevented from any sufficient cause from continuing the appeal. On February 26, 1960, the appeal itself was dismissed as having abated. On May 14, 1960, an application for leave to appeal to the Supreme Court was presented to the High Court. The heading of the application was described to be one for leave to the Supreme Court from the judgment dated February 16, 1960, in C.M. No. 1212/C of 1959 in R.F.A. No. 44 of 1955. This application was rejected on May 17, 1960. Thereafter, an application for special leave was filed in this Court. Special leave was prayed for appealing from the judgment of the High Court of Punjab in R.F.A.No.44 of 1955 and C.M. No. 1212 C/59 dated February 16/26 of 1960. The order granting special leave said: "That special leave be and is hereby granted to the petitioner to appeal to this Court from the judgment and order dated 16th day of February, 1960 and 26th day of February, 1960 of the Punjab High Court in Civil Miscellaneous No. 1212 C of 1959 and Regular First Appeal No. 44 of 1955. " A preliminary objection was taken to the effect that the appellant having not applied to the 471 High Court for leave to appeal against the order dated February 26, 1960 in Regular First Appeal, that order had become final and special leave could not be asked for from this Court in view of Order XIII, r.2 of the Supreme Court Rules, 1950, the rule being: "Where an appeal lies to the Supreme Court on a certificate issued by the High Court or other tribunal, no application to the Supreme Court for special leave to appeal shall be entertained unless the High Court or tribunal concerned has first been moved and it has refused to grant the certificate. " We do not see any force in this objection and reject it. The application for leave to appeal, though described as one against the judgment in the miscellaneous case and not against the order in the regular appeal, stated in paragraph I that the regular first appeal had been ordered to have abated and in paragraph 3 that it was a fit case in which necessary certificate for filing an appeal against the judgment passed by the Court in regular first appeal No. 44 of 1955 be granted. Both these statements refer to the proceedings in connection with the regular first appeal and not of the order on the miscellaneous application for substitution. Ground No. 2 referred to those proceedings. The application, therefore, was really an application for leave to appeal against both the orders. The High Court does appear to have construed that application in this manner. Its order dated May 17, 1960 stated : "The appeal was decided as having abated because the appellant failed to show sufficient cause for not bringing the legal 472 representatives of the deceased respondent within time." To appreciate the real contention between the parties before us, we may now give in brief, the reasons for the order of the High Court dated February 16, 1960. It may be pointed out that in the narration of facts the High Court stated that the application dated March 17, 1958, was filed under O. XXII, rr. 4 and 9 read with section 151 of the Code. ' he application, as printed on the record, did not purport to be under r. 9 of O. XXII, C.P.C. There is not a word in the application that the appeal had abated and that the abatement be set aside The error in this respect seemed to have further led to the error in stating that the reason for the delay given in the application was that the Divisional Engineer, Telegraphs, came to know about Ram Charan 's death on February 3, 1958, there being no reason mentioned in the application. It was just stated as a matter of fact that the Engineer had come to know of the death on February 3, 1958. The order states that some application was presented by the Union of India on May 14, and that it was stated therein that the interval between February 3 and March 17. 1,958, was spent in collecting information about the legal representatives of the deceased. This application, however, is not printed in the paper book. The High Court relied on the Full Bench case of its Court reported in Firm Dittu Ram Eyedan vs Om Press Co. Ltd., (1), which held that ignorance of the death of the defendant was not a sufficient cause for setting aside the abatement when an application to bring the legal representatives of ' the deceased on the record was made after the expiry of the period of limitation, as the law imposed an obligation on the person applying for bringing the legal representatives of the deceased on the record and he had, therefore, to show absence of want of care. The (1) (1960) 1 1. L. R. Punj 935 473 High Court held that the Union of India did not state either in its application dated March 17, 1958, or in the other application dated May 14, 1958, that the Government had not been careless in the matter and had been vigilant in keeping itself informed regarding the whereabouts of Ram Charan and that it would not have been difficult for the Government to have come to know of Ram Charan 's death, who lived in Ambala Cantonment, to which place the appeal related. The contentions raised for the appellant in this Court are : (1) That mere ignorance of death of the res pondent was sufficient cause for the appel lant 's inability to apply for the impleading of the legal representatives within time, unless it be that the appellant was guilty of some negligence or some act or omission which led to the delay in his making the application. (2) Once the respondent is served in the first appeal, no duty is cast on the appellant to make regular enquiries about the state of health of the respondent. (3) The expression 'sufficient cause ' should be liberally construed in order to advance the cause of justice. (4) The Court itself ' has inherent power to add legal representatives to do full justice to the party. (5) The High Court misapplied the decision of the Full Bench of its Court to the facts of the present case. We may say at once that there is no force in the fourth point. The Court is not to invoke its inherent 474 powers under section 151, C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time. There is no question of construing the expression 'sufficient cause ' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the, Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant 's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement. 475 It is true, as contended, that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party, but it does not mean that the mere fact of the appellant 's coming to know of the respondent 's death belatedly will, by itself, justify his application for setting aside the abatement. That is not the law Rule 9 of O. XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient. He had to state reasons which, according to him, led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the first contention Rules 3 and 4 of O. XXII, C.P.C. lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff, as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates to far as the deceased 476 Plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considerations as held by this Court in State of Punjab vs Nathu Ram (1) and Jhanda Singh vs Gurmukh Singh (2) . Any way, that question does not arise in this case as the sole respondent had died. It may be mentioned that in view of r. 11 of O.XXII, the words 'plaintiff ', 'defendant ' and 'suit 'in that Order include 'appellant ', 'respondent ' and`appeal ' respectively. The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action. Sub rule (1) of r. 9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit. This means that the applicant had to allege and establish facts which, in the view of the Court, be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged,. none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants not continuing the suit by taking necessary steps within the period of limitation. Such would be a very rare case. This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not (1) [ ; (2) C. A. No. 344 of 1956 decided on April 10, 1962. 477 ordinarily be sufficient for the Court 's holding that the applicant had sufficient cause for not impleading the legal representatives within time. If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the legislature would have. expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months, under article 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of ' the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party 's absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under article 176 for an application to set aside the abatement of the suit but also made the provisions of section 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause ' for setting aside the abatement or for the plaintiff 's not applying to bring the legal representatives of the deceased 478 defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiff 's negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to `sufficient cause ' or not Courts have to use their discretion in the matter soundly in the interests of justice. It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellant 's ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its culpable negligence or mala fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to 479 bring the legal representatives of the deceased respondent earlier on the record. In the present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge. Why he did not do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellant 's knowledge of the death of the respondent. The appellant 's case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellant 's officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not provide 480 the limitation to start from the date of the appellant 's knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act. In these circumstances, the High Court cannot be said to have taken an erroneous view about the appellant 's not establishing sufficient ground for not making an application to bring on record the representatives of the deceased respondent within time or for not making an application to set aside the abatement within time. We, therefore, see no force in this appeal and dismiss it with costs. Appeal dismissed.

The appellant company was engaged in the manufacture and sale of matches in four places in India, including Bareilly, in which there were factories as well as sales offices. As an incentive to larger production of matches the company introduced in 1945 a Production Bonus Scheme which was made 561 applicable to workmen engaged in the factory in making matches as also to those working in the factory office. In 1947, it was withdrawn in its application to the sales office. The workmen of the sales office consisting of clerical staff as also salesmen and inspectors of salesmen made a claim to Production bonus painting out that there should be no discrimination between the employees in the same company. The company resisted the claim on the grounds : (1) that the sales office was entirely independent of the factory; and (2) that the salesmen, retail salesmen and inspectors employed by the sales office were not workmen within the meaning of the U.P. The facts showed : (1) that there was interdependence of the two activities viz., manufacture of matches in the factory and their sale by the sales office, inasmuch as (a) the sales office could not exist without the factory, (b) the factory itself could not conveniently function without a sales organization. and (c) the factory arranged its volume of production in accordance with the programme made from time to time by the sales manager; (2) that the sales office and the factory had the same banking account, though separate cheque books were maintained and operated upon ; (3) that the financial forecasts that were made for the Bareilly branch from time to time made no distinction between the disbursements in the sales office and the factory ; (4) the rules and practice in connection with the recruitment, control and discipline of man power, as also documents, including letters of appointment and standing orders and the muster rolls were kept distinct and separate between the factory and the sales office; and (5) the sales office paid rent to the factory fir the area occupied by it by means of book adjustments. The evideuce also showed that 75% of the time of the workmen in the sales office was devoted to writing work. Held that, on the facts, there was functional integrality and inter dependence or community of financial control and management of the sales office and the factory in the appellant company and that the two must be considered part of one and the same unit of industrial production. Held further, that the inspectors, salesmen and retail salesmen were workmen as defined in the U.P.

ivil Appeal No. 265 of 1978. From the Judgment and Order dated 12.9.1977 of the Allahabad High Court in C.M.W. No. 144 1 of 1976. S.N. Kacker and B.R. Agarwala for the Appellants. U.R. Lalit, R.B. Mehrotra and D.N. Misra for the Respond ents. Mr. Prithvi Raj and Mrs. Shobha Dikshit for the Respondents. 500 The Judgment of the Court was delivered by NATARAJAN, J. The only question for consideration in this appeal by special leave is whether the order of release passed by the Prescribed Authority under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act hereinafter) is a null and void order because the Prescribed Authority had no jurisdiction to pass the order as he did not possess the requisite quali fication for being appointed as such Authority. Premises No. 58/3 Birhana Road, Kanpur is a three sto reyed building and in addition it has a mezzanine floor as well. As early as in 1947, when the respondents who are brothers were minors, a portion of the ground floor and the entire first floor was leased out to the predecessor concern of the appellant by the father of the respondents. While the first floor was leased out for residential purposes, a portion of the ground floor was leased out for non residen tial purposes. The respondents sought recovery of possession from the appellant of the leased portions for their residen tial needs and business purposes. It may be mentioned here that the respondents were already having their residence in the second floor and their business establishments in anoth er portion of the ground floor. As the appellant refused to comply, the respondents preferred an application under Section 21 of the Act for an order of release in their favour to recover possession of the leased portions. Various defences were raised by the appellant to oppose the applica tion but all the objections were found untenable by the Prescribed Authority and he, therefore, passed an order of release on 19.8. 1975 holding that the requirement of the leased portions by the respondents for their residential and non residential purposes was a bona fide one and furthermore the comparative hardship factor was more in their favour than in favour of the appellant. The findings of the Pre scribed Authority were confirmed by the Appellate Authority (Additional District Judge, Kanpur) and thereafter the appellant filed a petition under Article 226 of the Consti tution before the High Court. For the first time the appel lant raised a contention, by means of an amendment petition, that the order of the Prescribed Authority had been passed without jurisdiction and was therefore a nullity and in such circumstances its affirmation by the Appellate Authority could not also validate it. The High Court, though it al lowed the amendment petition and permitted the additional question to be raised, did not see any merit in it on ac count of two factors. The first was that even if the order of the Prescribed Authority was a defective one, it had become merged with the order of the Appellate Authority when it was con 501 firmed and as such there was no room for the appellant to assail the order on the question of jurisdictional incompe tence of the Prescribed Authority. Besides, the High Court was of opinion that the question of jurisdictional compe tence of the Prescribed Authority to pass the order of release involved adjudication upon disputed questions of fact and such an exercise was beyond the scope of proceed ings under Article 226 of the Constitution. The High Court thereafter went into the correctness of the findings concur rently rendered by the Prescribed Authority and the Appel late Authority and found the findings to be fully in accord ance with law and facts. The High Court, therefore, dis missed the writ petition filed by the appellant and hence the present appeal by special leave. For a proper comprehension of the attack made on the competence of the Prescribed Authority to pass the impugned order of release, it is necessary to set out the terms of Clause (e) of Section 3 which defines the 'Prescribed Au thority ' under the Act as it stood before and after the amendment in 1974, and also the qualifications of Shri Senger who was the Prescribed Authority who had passed the order of release in this case. Clause (e) of Section 3 of the Act was originally in the following terms: "Prescribed Authority" means a Magistrate of the First Class having experience as such of not less than three years, authorised by the District Magistrate to exercise, perform and discharge all or any of the powers, functions and duties of the prescribed authority under this Act, and different Magistrates may be so authorised in respect of different areas or cases or classes of cases, and the District Magistrate may recall any case from any such Magistrate and may either dispose of it himself or transfer it for disposal to any other such Magistrate. " The definition of a Prescribed Authority had, however, to be changed with the coming into effect of the Code of Criminal Procedure 1973 with effect from 1.4.1974 because the Executive Magistrates ceased to be Magistrates of the First Class under the Code. Hence by means of an Amendment Act viz. U.P. Act No. 19 of 1974, Section 3(e) came to be amended as under: "(e) 'Prescribed Authority ' means an officer having not less 502 than 3 years experience as Munsif or as Magistrate of the First Class or as Executive Magistrate authorised by general or special order of the State Government to exercise, perform and discharge all or any of the powers. functions and duties of the Prescribed Authority under this Act, and different officers may be so authorised in respect of different areas or cases, or classes of cases." Thus by reason of the amendment the State Government became the authority to authorise a person to act as a Prescribed Authority and three classes of officers viz. Munsifs, Magis trates of the First Class and Executive Magistrates, each having not less than three years experience as such were designated the officers on whom the powers of a Prescribed Authority under the Act could be conferred. Coming now to the qualifications of Shri Senger, the Prescribed Authority, he had served as Tehsildar from 29.9.2962 to 6.11.1964 and again from November 1965 to 15.2.1974 and he was promoted as Deputy Collector with effect from 16.2. 1974 and posted as Additional City Magis trate II, Kanpur. He worked as Additional City Magistrate II, Kanpur from 16.2.1974 to 14.8.1974 and again from May 1975 to 26.8.1975. It was during this period i.e. on 19.8.1975 he had passed the impugned order of release. While Shri Senger was serving as a Tehsildar the Government in exercise of its powers under Sections 12 and 39(1) of the Code of Criminal Procedure 1898, issued a general Notifica tion dated 6.2.1968 conferring on all Tehsildars the powers of a First Class Magistrate and on all Naib Tehsildars the powers of a Second Class Magistrate. The Notification of the Government was duly published in the Gazette on 17.2. By means of a Notification dated 9.9.1974 the Government had designated the Additional City Magistrate II, Kanpur, to be the Prescribed Authority under the Act for certain areas including the limits of Collector Ganj Police Station where the leased property is situate. By reason of this notifica tion when Shri Senger succeeded one Shri Jagdish Sharma as the Additional City Magistrate II, Kanpur, on May 19, 1975, he became the Prescribed Authority for those areas including the Collector Ganj area. It was in such circumstances Shri Senger dealt with the application filed under Section 21 of the Act by the respondents before his predecessor and passed the order of release on 19.8.1975. Having set out these factual matters we will now refer to the grounds on which the competence of Shri Senger to have passed the order of release are questioned. They are as follows: 503 1. There is no proof that the General Notification of the Government dated 6.2.68 was given effect to in the case of Shri Senger, and in the absence of such proof he cannot be deemed to have been conferred 'the powers of a First Class Magistrate because Clause (2) of Section 39 of the Criminal Procedure Code 1898 lays down that any conferment of magis terial powers on an officer under Section 39(1) "shall take effect from the date on which it is communicated to the person so empowered. Even if there had been a communication to Shri Senger as envisaged under Section 39(2) of the Code, the conferment of powers was only for ensuring the maintenance of law and order and not for the trial of cases. This position has been set out by the Deputy Secretary, Government of U.P. in his note while forwarding a copy of the General Notification of the Government to all District Magistrates (vide page 260 of the Printed Paper Book). Therefore, Shri Senger cannot be treated as a Tehsildar on whom the powers of a First Class Magistrate had been conferred upon for trial of cases. For an Executive Magistrate to be lawfully empowered to act as a Prescribed Authority under Section 3(e), he must have had not less than three years experience in the trial of cases as a First Class Magistrate. The terms of Section 3(e) are clear on this aspect and they have been reiterated by the Government through a communication sent by the Com missioner and Secretary, Government of Uttar Pradesh to all District Magistrates on 9.9. 1974 (vide page 228 of Printed Paper Book). It has been stated therein that "in the case of Executive Magistrates, it shall be deemed sufficient if they have gained three years ' experience of working as Magis trates of First Class before the 1st April, 1974". These grounds were controverted by Mr. Lalit appearing for the respondents and he contended that Shri Senger had been conferred the powers of a First Class Magistrate in terms of the Government Notification and the Gazette publi cation is proof thereof. that this position has been con firmed by the District Magistrate in his reply to the Sixth Additional Judge, Kanpur (vide pages 224/225 of the Printed Paper Book), that Shri Senget was empowered to exercise all the powers of a First Class Magistrate and that the note issued by the Deputy Secretary that the conferment of powers was confined to the maintenance of law and order and would not extend to the trial of cases is an 504 administrative note which cannot override the Gazette Noti fication and it must therefore be held that Shri Senger had been an Executive Magistrate exercising the powers of a First Class Magistrate from February 1968 itself and as such he fully satisfied the terms of Section 3(e) for being conferred the,powers of a Prescribed Authority under the Act. We will now examine the contentions of the counsel in greater detail. It is not in dispute that the Government issued a Gener al Notification on 6.2. 1968 conferring the powers of a First Class Magistrate on all Tehsildars and the powers of a Second Class Magistrate on all Naib Tehsildars and this Notification was duly published in the Official Gazette on 17.2.68. The argument of Mr. Kacker that in spite of the Government Notification there is no proof that Shri Senger had been individually communicated an order conferring upon him the powers of a First Class Magistrate cannot be accept ed because the Additional District Magistrate has categori cally stated in his reply to the letter of the Sixth Addi tional Judge dated 3.5.76 that by virtue of the General Notification of the Government and the Gazette Notification, "all the Tehsildars had been appointed Magistrates, First Class" and by way of enclosure he had sent the relevant Gazette Notification as well. In the face of such materials, it must be taken that the Government Notification should have been fully acted upon and all Tehsildars including Shri Senger must have been conferred the powers of a First Class Magistrate in the year 1968 itself. In so far as the second criticism is concerned, there is nothing in the Government Notification dated 6.2.68 or in the Gazette publication dated 17.2.68 to indicate that the powers of a First Class Magistrate and a Second Class Magistrate conferred on Teh sildars and Naib Tehsildars respectively was only for the limited purpose of ensuring the maintenance of law and order and not for exercise of those powers in the trial of crimi nal cases. The note of the Deputy Secretary (page 260 of the Printed Paper Book) relied on by Mr. Kacker appears to be only an administrative instruction and not an order passed by the Government itself in exercise of its powers under Sections 12 and 39 of the Criminal Procedure Code 1898. In such circumstances, the instruction cannot whitle down the Government Notification conferring higher magisterial powers on Tehsildars and Naib Tehsildars. Incidentally, we may point out that the copy of the Government Notification dated 6.2.68 together with the administrative instruction of the Deputy Secretary had been communicated to all the Tehsildars of the District by the District Magistrate. The endorsement made by the Collector will, therefore, disprove the conten tion of Mr. Kacker that there had been no individual commu nica 505 tion of the Government 's Order to all the Tehsildars and hence the requirement of Section 39(2) of the Criminal Procedure Code 1898 had not been complied with. Even assuming for argument 's sake that the conferment of the powers of a First Class Magistrate on all Tehsildars was for the limited purpose of enforcement of law and order and not for the trial of cases, the question will be whether the experience gained by Shri Senger as a Second Class Magis trate while concurrently having the powers of a First Class Magistrate would not satisfy the requirements of Section 3(e) of the Act. All that the Section says is that for being conferred the powers of a Prescribed Authority an Executive Magistrate should have had experience as such Magistrate for a period of not less than three years. Having regard to the terms of the stipulation, it would suffice if Shri Senger had acquired experience in the trial of criminal cases, albeit cases triable by a Second Class Magistrate, for more than three years, while at the same time having the right to exercise the powers of a First Class Magistrate. This is because of the fact that as per Schedule III of the Code of Criminal Procedure 1898 a Magistrate of the First Class is also entitled to exercise all the powers of a Magistrate of the Second Class. It would, therefore follow that a First Class Magistrate can also gain experience by the trial of cases triable by a Second Class Magistrate. What is of relevance is the gaining of experience in trial of criminal cases for a period of three years and more and at the same time having the powers of a First Class Magistrate and not necessarily the experience of trying cases triable by a First Class Magistrate alone. In the light of the aforesaid reasons we do not see any merit in the contention of the appellant that Shri Senger did not have the requisite qualification to be appointed a Prescribed Authority under Clause (e) of Section 3 of the Act and hence the release order passed by him is a nullity. There is also another angle from which the matter needs to be considered. Shri Senget was not ' appointed a Pre scribed Authority as persona designata. On the other hand he exercised the powers of a Prescribed Authority by reason of his posting as Additional City Magistrate II, Kanpur, in the place of one Shri S.D. Sharma and by virtue of an earlier Notification of the Government dated 9.9.1974 constituting the Additional City Magistrate II, Kanpur, as the Prescribed Authority for certain areas in Kanpur city including the area falling within the limits of the Collector Ganj Police Station. The 506 abovesaid Notification of the Government was a General Notification and, therefore, whoever came to be posted as Additional City Magistrate II, Kanpur, automatically became a Prescribed Authority for the areas indicated in the Gov ernment Notification. Such being the case, as long as the Government Notification dated 9.9.1974 is not challenged, the exercise of powers by Shri Senger as a Prescribed Au thority cannot also be challenged. This position would then call for the application of the 'de facto doctrine ' to the facts of the case. The principle of the 'de facto doctrine ' has been considered in several cases. This Court had occa sion in G. Rangarajan v Andhra Pradesh, [1981] 3 S.C.R.474, to which one of us (Sen, J.) was a party to refer to those decisions and enunciate the law relating to the 'de facto doctrine '. In that case a criminal appeal filed by one Gokaraju Rangaraju under Section 6(c) of the Essential Commodities Act was dismissed by Shri G. Anjappa, Additional Sessions Judge and a revision was preferred to the High Court. One Shri Raman Raj Saxena, another Additional Ses sions Judge, had tried a Sessions case and awarded convic tion to two of the accused persons and they had filed ap peals to the High Court against their conviction and sen tence. By the time the Criminal Revision and the Criminal Appeal filed by the accused came to be heard by the High Court, this Court had quashed the appointments of the above said two Additional Sessions Judges and two others as Dis trict Judges Grade II on the ground that their appointment was in violation of Article 233 of the Constitution. There fore, the accused who had preferred the Criminal Revision and the Criminal Appeals respectively raised a contention before the High Court that the judgments rendered against them by the concerned Additional Sessions Judges were void and should therefore, be set aside. The High Court rejected the contention on the ground that the Additional Sessions Judges had held their offices under lawful authority and not as usurpers and therefore, the judgments rendered by them were valid and could not be questioned in collateral pro ceedings. Against the judgments of the High Court the ac cused preferred appeals by special Leave to this Court and those appeals were dismissed by this Court on the ground the 'de facto doctrine ' was clearly attracted. After referring to severaL decisions rendered by the Courts in India and England, Chinnappa Reddy, J. speaking for the Bench enunci ated the law relating to the 'de facto doctrine ' as under: "A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the 507 defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise as soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge 's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge 's appointment in an appeal against the judgment is, of course, such a collateral attack. " The ensuing position therefore is that even if we are to countenance the argument of the appellant 's counsel that Shri Senger had not gained experience as an Executive Magis trate exercising First Class powers for a period of not less than three years and could not therefore be appointed as a Prescribed Authority under the Act, the validity and legali ty of the order of release passed by him cannot be impugned because Shri Senger had not held the office as an usurper but only under colour of lawful authority. There is, there fore, no escape for the appellant from being governed by the 'de facto doctrine ' and thereby being disentitled to impugn the validity of the release order on the ground of want of jurisdictional competence for Shri Senger to pass the order. Furthermore, the appellant is also not entitled to question the validity of the appointment of Shri Senger as a Pre scribed Authority in a collateral proceeding. These addi tional factors also militate against the contentions of the appellant. In view of our conclusion that Shri Senger 's experience as an Executive Magistrate satisfied the requirements of Section 3(e) of the Act and as such he was not incompetent to act as a Prescribed Authority and pass the impugned order of release, that secondly even if he 508 was not fully qualified to act as a Prescribed Authority and pass the order of release the validity of the order cannot be impugned because of the 'de facto doctrine ' and thirdly, the appellant is not entitled to question the competence of Shri Senger to act as a Prescribed Authority in a collateral proceeding, it is really not necessary for us to examine the correctness of the view taken by the High Court that by reason of the merger of the order of Shri Senger with the order of the Appellate Authority, there is no room for the appellant to contend that the release order is a nullity because Shri Senger did not have jurisdiction to pass the order. Even so we may make a brief reference to the argu ments of the counsel on that aspect of the matter and the case law cited by them to be fair to the counsel and to their arduous preparation of the case. Mr. Kacker 's argument was that the High Court was not right in its view because the rule of merger would not be attracted where there is a total lack of jurisdiction in the Tribunal or Court of first instance to pass an order. Mr. Kacker submitted that there is a clear distinction between the manner of exercise of jurisdiction and the existence of jurisdiction and whenever an order was passed without jurisdiction by a Tribunal or Court, the rule of merger will have no application. In support of his contention the learned counsel referred us to the following decisions. Hriday Nath Roy vs Ram Chandra Barna Sarma, (ILR 48 Calcutta 138); Collector of Customs vs A.H.A. Rahima, AIR 1957 Madras 496; The State of Uttar Pradesh vs Mohammad Noon, ; ; Kumaran vs Kothan daraman, AIR 1963 Gujarat Page 6; Toronto Railway vs Toronto Corporation, [1904] Appeal Cases 809 and Barnard vs National Dock Labour Board, ; Refuting the contentions of Mr. Kacker, Mr. Lalit argued that in several later judgments the view taken in Mohammad Noon 's case (supra) has been explained as being confined to the peculiar facts of that case and that the rule of merger has not undergone any change and the consistent view that has been taken is that even an order passed by a Tribunal or Court without jurisdiction can be challenged before the Appellate Authority or Court, that in such an appeal the question of the initial Court 's jurisdiction can also be gone into and that once the Appellate Authority or Court found jurisdic tional competence in the Tribunal or Court of first instance and confirmed the order in appeal, then the rule of merger of the order of the original authority with the order of the Appellate Authority would be clearly attracted and thence forth the order of the original authority cannot be assailed on the ground of jurisdictional error or incompetence. The learned counsel further submitted that besides the rule of merger the rule of finality of judgments would also be attracted and on that score too the order of the original authority will attain immunity 509 from attack. Mr. Lalit cited several decisions in support of his arguments but we need refer only to the decisions of this Court. The decisions cited are: U.J.S. Chopra vs State of Bombay, ; ; Madan Gopal Rungta vs Secretary to the Govt. of Orissa, [1962] Suppl. 3 SCR 906 and Collector of Customs, Calcutta vs East India Commercial Co. Ltd., As we have already indicated we do not find any necessi ty to go into the merits of the contentions of the counsel regarding the applicability of the rule of merger and the rule of finality for rendering our decision in this appeal. We, therefore, leave the rival contentions to rest there. We have only to consider the grievance of the appellant that the respondents had committed a breach of their under taking to the court and illegally dispossessed them from the leased portions in their occupation and, therefore, the respondents should be directed to restore possession to them in the interests of justice. It appears to us that the recovery of possession of the leased portions had taken place due to a misunderstanding about the period of force of the undertaking given by the respondents. From the records we see that the High Court preferred to act on the undertak ing given by the respondents counsel not to disturb the possession of the appellant rather than pass an order of stay of the release order as the High Court was of the view that the appeal itself can be heard and disposed of expedi tiously on merits. However, for one reason or other, the appeal could not be heard expeditiously. In the meanwhile since the undertaking had been given only for a limited period i.e. 25.10.76, the respondents seem to have been under the impression that the undertaking had come to an end and hence they were entitled to recover possession. It is of relevance to note that the respondents had not taken posses sion immediately after 25.10.76 but only on 23.12.76, i.e. nearly two months later. In such circumstances it is diffi cult to sustain the charge levelled by the appellant that the respondents had committed a breach of their undertaking to the Court and had recovered possession illegally and should therefore be called upon to restore possession. In the light of our conclusion the appeal fails and will accordingly stand dismissed. We, however, direct the parties to bear their respective costs. P.S.S. Appeal dis missed.

The appellants had borrowed from the respondent Corpora tion a certain sum for the acquisition of fixed assets under a deed of hypothecation. They also created an equitable mortgage, mortgaging the land and factory building by depos iting the original title deeds of the properties with the Corporation. The loan had to be repaid within a period of 8 years by half yearly instalments. The appellants were liable to pay interest at 8.5 per cent per annum and that was to be calculated and charged at the end of every half year. The appellants committed default in payment of instal ments and interest due to the Corporation. The Corporation filed an application under section 31 of the before the District Judge claiming the entire outstanding loan, interest and commitment charges. The appellants having admitted the claim of the Corporation, an order of compromise was passed by the Court under which the appellants undertook to pay a sum of Rs.15,000 every month towards the claim of the Corporation. The appellants failed to pay the amount as ordered by the Court. The respondent thereupon filed an application under section 32(8) of the Act requesting that the property hypothecated in favour of the Corporation be directed to be sold by the Commissioner appointed by the Court and the amount so rea lised be appropriated towards the dues. The appellants raised an objection that since the Court had not in 608 its order expressly directed payment of any interest on the amount, the Corporation was not entitled to recover any amount by way Of interest due on the principal amount for the period subsequent to the date of the order, and since payment of interest subsequent to the date of the decision of the Court was governed by section 34 of the Code of Civil Procedure, the appellants were not liable to pay any inter est. The first appeal and the Letters Patent Appeal filed by the appellants were dismissed by the High Court. In this appeal by special leave, it was contended for the appellants that a proceeding under section 31 of the Act is in the nature of a suit, an order made thereon under section 32 thereof is a decree, and since by subs. (6) of section 32 of the Act, the District Judge was required to investigate the claim of the Corporation in accordance with the provisions of the Code, section 34 of the Code would be attracted to the proceeding instituted under section 31 of the Act also, and that since the decree passed in this case is silent on the ques tion of payment of any interest on principal sum from the date of the decree to the date of payment, the Court should be deemed to have refused such interest by virtue of sub section 2 of section 34 of the code. Disposing of the appeal, HELD: 1. The High Court was right in holding that inter est would be payable on the principal amount due in accord ance With the terms of the agreement between the parties till the entire amount due was paid as per the order passed under section 32 of the . [613GH] 2. Section 34 of the Code of Civil Procedure, 1908 is not applicable to this case. A proceeding instituted under section 31(1) of the Act is something akin to an application for attachment of property in execution of a decree at a stage posterior to the .passing of the decree. That being so, no question of passing any order under section 34 of the Code would arise since that provision would be applicable only at the stage of the passing of the decree and not to any stage posterior to the decree. Even under the Code, the question of interest payable in mortgage suits filed in civil courts is governed by Order 34 rule 11 of the Code and not by section 34 of the Code which may be applicable only to cases of person al decrees passed under Order 34 rule 6 of the Code. [614C, 613F] 3. In the instant case, the Joint Judge is to redeter mine the actual amount due and payable to the Corporation as per the contract between the parties before directing sale. [614D] 609 Karnataka State Financial Corporation, Bangalore vs Sri Nithyananda Bhavan & Anr., A.I.R. 1982 Karnataka 179 and Gujarat State Financial Corporation vs M/s Natson Manufac turing Co. (P) Ltd. & Ors., ; , referred to.

Appeal No. 185 of 1966. Appeal by special leave from the judgment and order dated March 20, 1962 of the Mysore High Court in Writ Petition No. 109 of 1960. A.K. Sen, R. Ganapathy Iyer and R. Gopalakrishnan, for the appellants. D.Narsaraju, T. A. Ramachandran and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgement of the Mysore High Court dated March 20, 1962 dismissing writ petition No. 109 of 1960. The appellants had prayed therein for the grant of writ for quashing a. notice dated January 16, 1960 issued by the respondent under section 15 of the Excess Profits Tax Act, 1940 (Act XV of 1940), hereinafter called the 'Act ', calling upon the appellants to submit a return of the standard profits and the profits actually made during the chargeable accounting period from October 30, 1943 to October 30, 1944 on the ground that the profits had been under assessed. The appellants carried on a business constituting themselves into a partnership called 'Guduthur Thimmappa & Brothers in 1934. On the date of commencement of the business the part ners were G. Thimmappa, G. Ekambarappa, and G. Padmanabhan, each of the partners representing their respective joint families. The business of the firm was in Bellary town and the partners of the firm were residents of Bellary town during the period the firm was carrying on business. The, firm was dissolved on October 16, 1944. Thimmappa, one of the partners, died on April 13, 1955. For the chargeable accounting period from October 30, 1943 to April 30, 1944, the Excess Profits Tax Officer had taken steps to assess the "escaped" profits of the firm. He issued the necessary notices to G. Padmanabhan and G. Ekambarappa as the partners of the dissolved firm. He also issued notice to G. M. Prabhu and G. Lakshmidevamma as the representatives of G. Thimmappa. The contention of the appellants, before the High Court was that as from November 1, 1956 the Act must be 866 deemed to have been repealed so far as Bellary district is concerned and therefore the respondent was not competent to take any proceedings for determining the escaped income under section 15 of that Act. The High Court rejected the contention on the ground that, though the Act stood repealed by reason of the inclusion of Bellary district in Mysore State, the liability to pay tax on the escaped profits continued by virtue of section 6 of the General Clauses Act. The question to be considered in this appeal is whether the appellants continued to be liable to be proceeded against under section 15 of the Act on the profits which had escaped taxation. The present Bellary district was a part of the old Madras State which was a Part "A" State under the Constitution of India till its merger with the Mysore State on October 1, 1953 which was a Part "B" State. The Mysore State continued to be a Part "B" State till November 1, 1956. The Act extended, when first promulgated, to. the territory of former British India. After the Constitution came into force, section 1(2) of the Act was adapted so as to extend the operation of the Act "to the whole of India except Part 'B ' States" by the Adaptation of Laws Order, 1950. After the formation of new States in pursuance of the States Reorgani sation Act, 1956 (Act 37 of 1956), sub section (2) of section 1 of the Act was adapted by the President by Adaptation of Laws (No. 3) Order, 1956 dated December 31, 1956. Section 1(2) of the Act as adapted read as follows : "It extends to the whole of India except the territories which immediately before the 1st November, 1956 were comprised in part 'B ' state." The result of the adaptation was that all the provisions of the Act stood repealed so far as the district of Bellary was concerned with effect from December 31, 1956. It was contended on behalf of the appellants that it is not a case of repeal of the Act and so the provisions of section 6 of the General Clauses Act could not be invoked to sustain the validity of the notices issued by the respondent under section 15 of the Act. It was argued that so far as the Act was con cerned, the Adaptation of the Laws Order, 1956 only modified the provisions of section 1 (2) of the Act and did not repeal the Act as such and the effect of the modification was that the provisions of the Act were no longer applicable to the Bellary district which was comprised in the territory of Part 'B ' State of Mysore immediately before November 1, 1956. In our opinion there is no justification for the argument put forward on behalf of the appellants. The result of the Adaptation of Laws Order, 1956 so far as the Act was concerned, was that the provisions of that Act were no longer applicable or in force in Bellary district. To put it differently, the Act was repealed so far as the area of Bellary 8 6 7 district was concerned. Repeal of an Act means revocation or abrogation of the Act and, in our opinion, section 6 of the General Clauses Act applies even in the case of a partial repeal or repeal of part of an Act. Section 6 of the General Clauses Act states "Effect of repeal. Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or Section 3(19) of the General Clauses Act defines an "enactment" as including "a Regulation and also as including any provision contained in any Act or in any such Regulation as aforesaid". The argument was also stressed on behalf of the appellants that even if section 6(c) of the General Clauses Act was applicable there was no "liability incurred or accrued" as there was no assessment of escaped profits before November 1, 1956 when the adaptation was made. We do not think there is any substance in this argument. The liability of the appellants to tax arose immediately at the end of the chargeable accounting period and not merely at the time when it is quantified by assessment proceedings. It follows therefore that the notice issued under section 15 of the Act was legally valid and the appellants representing the original partners of the firm continued to be liable to be proceeded against under that section for the profits which had escaped taxation. In Wallace Brothers and Co. Ltd. vs Commissioner of income tax(1), the Judicial Committee expounded in clear terms the scope of a tax liability under the Income tax Act. It was observed by the Judicial Committee as follows : ". . the rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year, though quantification of the amount payable is postponed. " The same view has been expressed by this Court in Chatturam Horilram Ltd. vs C.I.T. (2) in which the legal position was reviewed (1) , 244. (P.C.) (2) 868 with regard to the question of charge to income tax. In that case, the assessee company carrying on business in Chota Nagpur was assessed to tax for the year 1939 40, but the assessment was set aside by the Income tax Appellate Tribunal on March 28, 1942, on the ground that the Indian Finance Act, 1939, was not in force during the assessment year 1939 40, in Chota Nagpur which was a partially excluded area. On June 30, 1942, a Regulation was promulgated by which the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from March 30, 1939. Thereupon the Income tax Officer made an order holding that the income of the assessee for the year 1939 40 had escaped assessment and issued to the assessee a notice under section 34 of the Income tax Act. The validity of the notice was questioned. It was held by th Court that though the Finance Act was not in force in that area in 1939 40, the income of the assessee wasliable to tax in that year and, therefore, it had escapdently of the passing of the Finance Act but until the Finance Act It was pointed out that the income was chargeable to tax independing dently of the passing of the Finance Act but until the Finance Act was passed no tax could be actually levied. The same principle was reiterated by this Court in Kalwa Devadattam vs Union of India(l). The question in that case was whether the liability of a Hindu undivided family arose before or after partition of the family. In that case, this Court speaking through Shah, J. stated in clear terms thus : "Under the Indian Income tax Act liability to pay income tax arises on the accrual of the income, and not from the computation made by the taxing authorities in the course of assessment proceedings; it arises at a point of time not later than the close of the year of account. " The same view has been taken in a recent case by this Court in State of Kerala vs N. Sami lyer (2 ) . In view of the principle expressed in these authorities we are of the opinion that the liability to pay excess profits tax accrued immediately at the end of the chargeable accounting period and that liability was preserved under section 6 (c) of the General Clauses Act even though the Act stood repealed so far as Bellary district was concerned with effect from November 1, 1956. Mr. Narsaraju contended in the alternative that on the combined operation of section 53 of the Andhra Pradesh Act (Act 30 of 1953) and s ' 119 of the State Reorganisation Act (Act 37 of 1956) all the provisions of the Excess Profits Tax Act, 1940 remained in operation in Bellary district in spite of the Adaptation of Laws Order, 1956. Section 53 of the Andhra Pradesh Act states as follows: (1) (2) A.I.R. 1966 S.C. 1415. 8 69 .lm15 "The provisions of Part 11 shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Madras or of Mysore shall, until otherwise provided by a competent Legislature or other competent authority, continue to have the same meaning. " .lm0 Section 119 of the State Reorganisation Act reads as follows "The provisions of Part It shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. " Section 120 of this Act states : "For the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of Part II, the appropriate Government may, before the expiration of one year from the appointed day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation. In this section, the expression "appropriate Government" means (a) as respect any law relating to a matter enumerated in the Union List, the Central Government; and (b) as respects any other law, (i) in its application to a Part A State, the State Government, and (ii) in its application to a Part C State, the Central Government. " it was pointed out that the Act was in force in Bellary district When the Constitution came into force and the effect of section 53 of the Andhra Pradesh Act was to continue the operation of that Act so far as Bellary district was concerned. The effect of section 119 870 of the State Reorganisation Act was to preserve the territorial operation of the law which was immediately in force before the date of the promulgation of that Act until such law was repealed by the competent legislature or a competent legislative authority. There is great force in. the argument advanced by Mr. Narsaraju on this point. But it is not necessary for us to express any concluded opinion on this aspect of the case because we have already given reasons for holding that the appeal must be dismissed on the ground that the Act stood repealed by reason of the Adaptation of Laws Order, 1956 and the liability to pay tax on escaped profits continued under section 6 of the General Clauses Act. We accordingly affirm the judgment of the Mysore High Court dated March 20, 1962 and dismiss this appeal with costs. G.C. Appeal dismissed.

The appellant was one of several applicants for a mining lease in Andhra Pradesh. The State Government however granted it to 'respondent No. 3. The appellant then filed an application in revision, under section 30 of the Mines & Minerals (Regulation and Development) Act, 1957, read with r. 54, to the Union of India. Respondent No. 3 filed a counter statement and the State Government filed its comments. The appellant filed a rejoinder. The Union Government without hearing the appellant rejected his revision application. An appeal was filed before this Court. The question that fell for consideration was whether it was necessary for the Government of India to give reasons for its decision in view of the provisions of the Act and the Rules or aliunde because the decision was liable to be questioned in appeal to this Court. HELD : (i) In exercising its powers of revision under r. 55 the Central Government discharges functions which are quasi judicial. The decisions of tribunals in India are subject to the supervisory powers of the High Court under article 227 of the Constitution and of appellate powers of this court under article 136. Both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected ' or 'dismissed '. In such a case this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the case. This would certainly be a very unsatisfactory method of dealing with the appeal. [308E F; 309B C] If the State Government gives sufficient reasons for accepting the application of one party and rejecting that of others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo, without anybody being the wiser for the review by the Central Government. The same difficulty would arise where the State Government gives a number of reasons some of which are good and some are not and the Central Government gives its decision without specifying those reasons which according to it are sufficient to uphold the order of the State Government. That is why in such circumstances, what is known as a 'speaking order ' is called for. [309C F] 3 03 A 'speaking order ' is all the more necessary in the case of a decision under r. 55 because there is provision for new material being placed before the Central Government which was not there before the State Government, and further, because the decision, affecting important rights of parties, is given in a summary manner without a hearing being allowed to the parties. A party is entitled to know why the decision has gone against him. [320G 321B] The absence in r. 55 of any provision for giving such reasons is not decisive of the matter in view of the above considerations. [315H] Shivji Nathubhai vs The Union of India, ; , M.P. Industries vs Union, ; , Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunihunwala, ; and Sardar Govindraov. State, [1965] 1 S.C.R. 678, followed. Nandram Hunatram, Calcutta vs Union of India, A.I.R. 1966 S.C.1922 and Commissioner of Income tax vs K. V. Pilliah, , distinguished. Rex vs Northumberland Compensation Appeal Tribunal Ex parte Shaw, , Vedachala Mudaliar vs State of Madras, A.I.R. 1952 Madras 276, Rantayya vs State of Andhra, I.L.R. 1956 Andhra 712, Annamalai vs State of Madras, A.I.R. 1957 Andhra Pradesh 738 and Joseph vs Superintendent of Post Offices, Kottayam, I.L.R. 1961 11 Kerala 245, referred to.

iminal Appeal No. 9 of 1963. Appeal by special leave from the judgment and order dated November 9, 1962 of the Rajasthan High Court in D. B. Criminal Appeal No. 407 of 1961. Purushottam Trikamdas, C., L. Sarren and R. L. Kohli, for the appellant. section K. Kapur and R. N. Sachthey, for the respondent. August 19, 1963. The Judgment of the Court was delivered by SHAH J. Noor Khan, resident of Kuchaman in the State of Rajasthan, and nine others were tried before the Additional Sessions judge, Sirohi in the State of Rajasthan for offences of rioting and being members of an unlawful assembly and causing in furtherance of their common object death of one Pratap, at about 2 30 p. m. on September 29, 1960 and serious injuries to four others on the same occa 523 sion. Noor Khan was also charged for the substantive offence of causing the death of Pratap by gunshot injuries. The .Sessions Judge acquitted all the persons accused. at the trial. In appeal by the State, the High Court of Rajasthan set aside the order of acquittal in favour of Noor Khan and confirmed the order in respect of the rest. There were disputes between Noor Khan on the one hand and Pratap and his brothers on the other about a well in village Mundara. Noor Khan claimed to have purchased a half share in the well whereas Pratap and his brothers claimed the well to be their exclusive property, and there were several court proceedings about this dispute. It was the case for the prosecution that on September 29, 1960 at about 2 00 p.m. Noor Khan accompanied by his father Samdu Khan and eight others went to Pratap 'section field (in which there was a farm, a house, a stable and the disputed well) and called upon Pratap to deliver possession of the well and on the latter declining to do so, Samdu Khan fired a muzzle loading gun at Ganesh brother of Pratap but missed him. Noor Khan then fired at Pratap and killed him instantaneously. The other members of the party of Noor Khan at the instigation of Samdu Khan thereafter beat Ganesh, Prabhu, Mohan and Gulab brothers of Pratap with sticks and other weapons and caused them injuries. After the assailants retired, Ganesh lodged a complaint against 15 persons including Noor Khan an.d Samdu Khan at the police station, Bali. Ten out of those who were named in the complaint were arrested and tried before the Court of Session, Sirohi. The Sessions Judge acquitted all the accused holding that the story that there was an unlawful assembly of ten or more persons who went to the well and caused the death of Pratap was not reliable, for in his view the prosecution had failed to lead evidence of independent witnesses and alterations were made in the story of the prosecution from time to time and certain persons were falsely involved. He observed that there was enmity between the two sides and the testimony of witnesses who claimed to be present at the scene of assault was not corroborated by independent evidence and was on that .account unworthy of credit, especially because the complainant Ganesh had named several persons who were proved not to have taken part in the assault. 524 In appeal by the State, the High Court of Rajasthan convicted Noor Khan for causing the death of Pratap by firing a muzzle loading gun and causing him fatal injury and thereby committing an offence punishable under section 302 Indian Penal Gode and sentenced him to suffer imprisonment for life. With special leave, Noor Khan has appealed to this court. Pratap died on September 29, 1960 as a result of gun shot injury. The testimony of Dr. Mehta who performed the post mortem examination on the dead body of Pratap disposes beside the wound of entry that the left lung of the victim was lacerated with pieces of metal. Dr. Mehta found on the body of witness Prabhu two contusions and an incised injury, on the body of Ganesh three contusions, on Mohan one contusion and on Gulab a swelling and in the view of Dr. Mehta the injuries were, at the time when he examined the injured persons on October 1, 1960, about 48 hours old. Prabhu, Ganesh, Mohan and Gulab were examined as witnesses for the prosecution, and they deposed that Noor Khan had caused the fatal injury to Pratap by firing a muzzle loading gun at him, and that they were injured in the same incident by the members of Noor Khan 's party. The injuries on these four persons strongly corroborate their story that at the time of the assault made on Pratap at about 2 00 p.m. on September 29, 1960 they were present. This story was further corroborated by two female witnesses, Bhanwari and Mathurn. The High Court in appeal by the State held that notwithstanding the infirmities in the prosecution case that in the first information, names of certain persons who were not present at the scene of occurrence were given by the complainant Ganesh on account of enmity and that there were discrepancies between the statements of the eye witnesses at the trial and the first information on the question as to who, out of the two persons Samdu Khan and the appellant Noor Khan, fired first, the substantial case of the prosecution remained unaffected thereby, for each of the four eye witnesses Ganesh, Prabhu, Mohan and Gulab had marks of injuries the duration of which when examined by Dr. Mehta tallied with their story and the presence of the injuries lent assurance to their testimony that they were present at the occurrence, and the 525 absence of independent witnesses was not by itself a sufficient ground for discarding the testimony of the witnesses who claimed to have seen the assault on Pratap. Relying upon the testimony of Mst. Bhanwari 'supported by the testimony of Mohan Singh and Mst. Mathura the High Court held that the fatal injury to. Pratap was caused by the appellant with a gun fired from a distance of about 4 ft. from the body of Pratap. The appeal before the High Court was one against an order of acquittal. But as explained by the Judicial Committee of the Privy Council in Sheo Swarup and others vs King Emperor(1) :"ss, 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was rounded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. * * * * * But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. "It may be observed that. in declining to accept the testimony of the witnesses who claim to have seen the assault, the Sessions Judge did not appreciate the full significance of the very important circumstance that on the person of the four eye witnesses there were injuries which on the medical evidence must have been caused at or about the time when the fatal assault was made upon Pratap. It is highly improbable that all these witnesses who were members of :the same family suffered injuries some of which were severe in some other incident or incidents on the day and about the time when Pratap was fatally injured, and then they conspired to bear false testimony that they were present at the time of the assault upon Pratap. The presence of the four injured persons Ganesh, Prabhu, Mohan and (1) I. L.R. 61 I.A. 398. 526 Gulab at the scene of offence is assured by the evidence of injuries, and must, as the High Court observed, be regarded as established beyond reasonable doubt. The Sessions Judge did not found his conclusion upon the demeanour of the witnesses, except possibly of Ganesh. He entered upon a review of the evidence and rested his conclusion primarily upon four circumstances: (i) that the persons who were proved not to be present at the time of the commission of the offence were sought to be involved in the commission of the offence; (ii) that the evidence showed that only one shot was fired even though the witnesses deposed that both Samdu Khan and Noor Khan were armed with muzzle loading guns and had used them at the time of the ass.ault; (iii) that the distance from which the gun which caused the fatal injury to Pratap was fired was estimated by the witnesses at not, less than 20 ft, whereas Dr. Mehta deposed that the gun was fired from a distance of only 4 ft. and (iv) that the accused Noor Khan and others were deprived of the benefit of having access to the police statements recorded under section 161 Code of Criminal Procedure. The circumstance that two persons Narpat Singh and Pratap Singh were alleged in the first information to be members of the party which arrived at the scene of offence in company of Noor Khan and Samdu Khan, is one which may require the Court to scrutinize the testimony of Ganesh the informant with great care. But the High Court in arriving at its conclusion did not rely upon the testimony of Ganesh; that testimony was wholly discarded, and nothing more need be said about that testimony. Inclusion of names of Narpat Singh and Pratap Singh as members of the party of Noor Khan in the first information lodged at the police station does not, however, throw any doubt upon the testimony of other witnesses who did not attempt to involve them in the commission of the offence. The Sessions Judge also held that two other persons Kesia Choudhary and Sheonath Singh were also 527 named in the first information though they were not ' present at the scene of offence. Ganesh admitted when cross examined that these two persons arrived at the scene of offence after the assault on Pratap and the other witnesses did not depose that they had seen them at the time of the assault. The fact, that certain persons who were on the admission made by Ganesh not present at the time when the party of Noor Khan arrived at the scene, may raise a serious doubt about the reliability of the testimony of Ganesh, but it would not by itself be a ground for discarding the story of the other witnesses. It is true that the witness Prabhu Singh s/o Guman Singh who was not a member of the family and who claimed to be an eye witness to the assault on Pratap and others was, found wholly unreliable, and another person cited as a witness Sohan Singh who was also not a member of the family was not examined at the trial. But the place and the time at which the offence is alleged to be committed, were such that presence of persons who were not near relations of Pratap may least be expected. All the eye witnesses have consistently deposed that it was Noor Khan who caused the fatal injury to Pratap. On the evidence of the witnesses both Noor Khan and Samdu Khan were armed with muzzle loading guns at the time of the assault, and only one gun shot injury is found on the body of Pratap. It was deposed by the witnesses that Samdu Khan had fired the gun carried by him at Ganesh but the shot missed Ganesh. But absence of gun shot injury on the person of Ganesh does not render the entire story so inherently improbable that it may on that account be discarded as unreliable. Nor is the discrepancy as to the sequence of firing, between the first information and the testimony in Court, furnish a justifiable ground in support of that course. There is discrepancy between the estimates given by witnesses about the distance from which the fatal shot was fired by Noor Khan. Witnesses have estimated this distance as varying between 8 and 15 poundas each pounda being equal to 'a step ' or two feet. It appears however from the appearance of the injury and especially the charring and blackening of the wound of entry that the barrel of the gun could not have been at a distance exceeding 3 or 4 ft. But as we will presently point out, the estimate given 528 by the witnesses, examined in the light of the topography and the circumstances in which the assault took place, will not warrant undue importance being attached to the estimates of illiterate and semi literate villagers. The judgment of the Sessions Judge suffers from the infirmity that without attempting to concentrate his attention on the evidence of witnesses in the light of certain fixed positions on the scene of offence, and without attempting to secure a scale map, he discarded the story of the witnesses because of the discrepancy in the estimate of distances stated in terms of poundas. There were at the scene of offence, certain fixed objects such as the Peepal tree, the Ora (room), dhalia (stable),phalsa ( 'opening in the hedge), well and chabutra (platform). If the evidence of the witnesses is examined in the light not exclusively of estimates of witnesses about the distance, which especially in. the case of illiterate or semi literate witnesses is notoriously unreliable, we have no, doubt that the conclusion which the Sessions Judge was .persuaded to reach cannot be accepted. The estimate of the witnesses about the distance from which the gun was stated to have been fired by Noor Khan has varied. Ganesh deposed that the distance was about 20 ft. The other witnesses gave the estimate that the distance was about 8 to 15 poundas. It has to be noticed that according to the prosecution witnesses there were about ten persons present. Two of them were armed with guns, some with axes and the remaining with sticks. They must have spread themselves over the small area of the field in which the well, Ora and dhalia are situate. It appears to be the consistent testimony of the witnesses that the assaulting party were at the time of the assault somewhere near the Peepal tree, the situation of which is definitely established by reliable evidence, as being at a distance of about 8 ft. from the western end of the wall of the Ora. The gun which was used by Noor Khan was a muzzle loading gun and the length of the barrel was 5 ft. According to the .witnesses the party of the assailants ha.d not advanced beyond the peepal tree and if as stated by Mst. Bhanwari . who has been believed by the. High Court corroborated as she was by witnesses Mst. Mathura and Mohan Singh, it .appears that Noor Khan was near the peepal tree, the 529 inference is inevitable that the distance between the end of the barrel and Pratap did not exceed 4 ft. The existence of charring and the lodging of the entire discharge from the gun at a single point of entry does clearly establish that the gun was fired from close range. The evidence of the witnesses viewed in the light of the situation of the Ora, dhalia and the peepal tree as shown in the rough sketch Ext. P 2(a), does also suggest that the estimate given by the witnesses of the distance of the assailant from Pratap cannot be accepted. Bhanwari has stated that Noor Khan was at a distance of a pace from Samdu Khan, and that Samdu Khan and Noor Khan had fired when they were near the peepal tree. Prabhu has given the estimate of the distance between Noor Khan and Pratap as 10 paces, but the evidence discloses that Noor Khan fired the shot from a place opposite the Ora. Gulab stated that Samdu Khan stood at a distance of five poundas from him and Pratap was near him sitting near the. Mohan deposed that the peepal tree is at a distance of 6 or 7 ft., and the accused persons were on the east side of the peepal tree and "in front of the centre of the Dhalia." Mst. Mathura has stated that the accused persons ha.d come to the rear of ,the peepal tree. Every witness has deposed that Pratap was sitting at a distance of a pace from the Ora wail facing south in which direction the peepal tree stood. This analysis of the evidence shows that Noor Khan fired his gun from a point south of the Ora, somewhere near the peepal tree, at Pratap who was sitting at a distance of about 2 ft. from the wail of the Ora. The High Court accepted the testimony of Mst. Bhanwari corroborated by the testimony of Mst. Mathura and Mohan Singh and has come to the conclusion that these three witnesses have deposed to a state of affairs which is consistent with the medical testimony. This is not to say that the testimony of other eye witnesses is untrue, but it only discloses a faulty estimate of the distance given by illiterate villagers. But the most important defect in the trial which, it was urged by Mr. Purshottam appearing on behalf of the appellant, vitiates the order of conviction is that the accused persons were deprived of the right to obtain and use copies of the statements made by the witnesses before ;the investigating officer Hari Singh who stated that he 530 had made: 'jottings ' or notes of the statements of witnesses, and that he did not record detailed statements in the course of the investigation, and that from these 'jottings ' head constable Kapuraram prepared the statements of the witnesses (supplied at the trial to the accused) when the witnesses were not present at the police station. In their cross examination the witnesses who claimed to have witnessed the assault, asserted that certain statements attributed by Kapuraram to them were not made by them. The High Court observed that as the statements were written by Kapuraram from the 'jottings ', no value could be attached to those statements and the testimony of the witnesses who denied having made certain parts of the statements found in the record prepared by Kapuraram could not render it unreliable. On the evidence of Hari Singh the investigating Officer, the statements of which copies were supplied to the accused purporting to be copies of statements recorded under section 161 Criminal Procedure Code, were not in truth such statements, and the High Court was right in observing that the discrepancies between those statements and the evidence given by the witnesses at the trial would not necessarily support the plea of the defence that the version given at the trial was unreliable, as an afterthought. But it was urged that under section 161 Criminal Procedure Code it is obligatory upon an investigating officer to record the statements of witnesses examined by him and if those statements are not made available to the accused at the trial, a valuable right which the Legislature has ensured in the interest of a satisfactory trial of the case is lost to the accused, and the trial must on that account alone be regarded as vitiated. By section 161 of the Code of Criminal Procedure, a police officer making an investigation under Ch. XIV is authorised to examine orally any person supposed to be acquainted with the facts and circumstances of the case. The person so examined is bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Sub section (3) of section 161 provides that a police officer may reduce into writing any statement made 531 to him in the course of an examination under this section, .and if he does so he shall make a separate record of the statement of each such person whose statement he records. Section 162 of the Code as amended by the Criminal Procedure Code (Amendment) Act 26 of 1955 provides: "No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at anT/ inquiry or trial in respect of any offence under investigation at the time when such statement was made :" By the proviso it is enacted that when a witness is called for the prosecution in such inquiry or trial, whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness. Section 173 of the Code by sub section (4) as amended by Act 26 of 1955 provides that the officer in charge of the police station shall, ,before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, amongst others, a copy of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements recorded under sub section (3) of section 161 of all the persons whom the prosecution proposes to examine as 1rs witnesses. Section 207A of the Code of Criminal Procedure which is added by Act 26 of 1955 by sub section (3) provides: "At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished," and the Magistrate shall then proceed to record the evidence of the witnesses produced by the prosecution and 532 he may commit the case to the Court of Session on such evidence and after considering the documents referred to. in section 173. The object of sections 162, 173(4) and 207A(3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigating officer to supply before the commencement of the inquiry 'copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Section 161(3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession 'of the prosecution, on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating .to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach, for section 537 Code of Criminal Procedure provides, amongst other things, that subject to the provisions contained in the Code no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in .any inquiry or other proceedings under this Code, unless such 533 error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to $. 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding. In the present case the statements of the witnesses prepared by Kapuraram were supplied to the accused before the committal proceedings were started. Relying upon those statements as duly recorded under section 161(3), cross examination of the witnesses was directed. But in the Court of Session the investigating officer admitted that on September 29, 1960 he did not record the statements of witnesses in detail, but merely noted certain points and after reaching Thana Bali on September 30, 1960 he had got detailed statements of the witnesses written out by head constable Kapuraram in the absence of the witnesses, and had destroyed the notes and jottings thereafter. Undoubtedly the investigating officer acted in a manner both irresponsible and improper, and thereby was instrumental in depriving the accused of the benefit of the "notes and jottings" written out by him. He destroyed the only documents which could be regarded as statements recorded under section 161 and which are permitted to be utilized by the accused under section 161. Counsel for the appellant relying upon the two judgments of the Nagpur High Court in Baliram vs Emperor(1) and Maganlal vs Emperor(2) submitted that omission to supply copies of the statements recorded under section 161 is repugnant to the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of justice, and where the accused was deprived of his statutory rights of cross examination and thereby denied the opportunity of effectively destroying the testimony of prosecution witnesses the evidence of such witnesses whose statements have not been supplied to the accused is inadmissible at the trial. We are unable to accept this contention for in our view the law stated by the Nagpur High Court does (1) I.L.R. (2) I.L.R. 534 not correctly interpret sections 161 and 162 Code of Criminal Procedure. In a later case, the Nagpur High Court in Maroti Mahagoo vs Emperor(1) held that though the right which is given to the accused under section 162 Code of Criminal Procedure to use the previous statements made to the police for the purpose of contradicting a witness is a valuable right, and where the omission to give copies to the accused is proved to have caused prejudice to the accused, the testimony of such witness must be received with extreme caution and the Court would be entitled in a suitable case even to ignore altogether such evidence, but the evidence is not inadmissible and every case must be decided on its own facts. These cases were decided before the Code of Criminal Procedure was amended by Act 26 of 1955, but on the question raised by counsel there is no material difference made by the amended provision. After the amendment of the Code in 1955, it is the duty of the investigating officer in every case where investigation has been held under Ch. XIV to supply to the accused copies of the statements of witnesses proposed to be examined at the trial. Under the Code before it was amended, it was for the Court when a request was made in. that behalf to supply to the accused statements of each witness when he was called for examination. The effect of the breach of the provisions of section 207A and section 173 Code of Criminal ProCedure was considered by this Court in Narayan Rao vs State of Andhra Pradesh(2) and it was held that failure to comply with the provisions of section 173(4) and section 207A(3) is merely an irregularity which does not affect the validity of the trial. It was observed, in dealing with the question whether an omission to comply with the provisions of section 173(4) read with sub section (3) of section 207A necessarily renders the entire proceeding and the trial null and void: "There is nodoubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard_the interests of accused persons by enjoining (1) I.L.R. (2) A.I.R. 1957 S.C.737. 535 upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished. But we are not prepared to hold that noncompliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. The word "shall" occurring both in sub section (4) of section 173 and sub section (3) of section 207A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of section 173, should not be allowed to have such a far reaching effect as to render the proceedings including the trial before .the Court of Session, wholly ineffective. . Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of the police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the Court may re open the proceedings by insisting upon full compliance with the provisions of the Code. In our opinion, the omission complained of in the instant case, should not have a more far reaching effect than the omission to carry out the provisions of section 162 or section 360 of the Code. " The Court in that case relied upon the observations made by the Judicial Committee of the Privy Council in Pulukuri Kotayya vs Emperor(1) to the effect that when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very (1) L.R, 74 I.A. 65. 536 comprehensive provisions of the Code. In dealing with result of failure to supply copies of statements recorded under section 161 Code of Criminal Procedure, the Judicial Committee observed in Pulukuri Kotayya 's case(1): "The right given to an accused person by this section is a very valuable one and often provides important material for cross examination of the prosecution witnesses. However slender the material for cross examination may seem to be, it is difficult to guage its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break down of the whole of his evidence and in the present case it has to be remembered that the accused 's contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to section 162 as matter of gravity. A.I.R. 1945 Nag. 1 where the record of statements made by witnesses had been destroyed, and 53 All. 458, where the Court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of section 162 have led to the conviction being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused. " However strong the inference may be, failure to supply copies will not by itself render the trial illegal. The Court must in each case consider the nature of the defect, the objection raised at the trial, and the circumstances which lead to an inference of prejudice. The strength of the inference of prejudice must always be adjudged having regard to the circumstances of each particular case. Narayan Rao 's Case(2) related to failure to comply with the provisions of sections 173 and 207A. It appears that in that case the statements of witnesses recorded under section 161 were supplied to the accused in the Court of Session, and irregularity in the proceeding to that extent was (1) L.R. 74 I.A. 65. (2) ; 537 mitigated. In the present case what could be regarded as statements recorded under section 161(3) were never supplied to the accused. But on that account the principle applicable to the consequences of deprivation of the statutory right 'is not different. The Trial Court observed that the copies of the statements which were handed over to the accused were not the record of the statements made by the witnesses but they were dictated by the sub Inspector Hari Singh from the 'jottings ' made by him of some points, the statements having been written by head constable Kapuraram. The Court then observed: "It is to be noted that head constable Kapuraram was not present at the place of occurrence when the investigating officer examined the witnesses on 29 9 60. The statements of witnesses which are in the handwriting of head constable Kapuraram, therefore, could not have been written and read over to witnesses in the village Mundara station, Bali, and, therefore, the statements on which the prosecution rely were never read over to and admitted correct by the witnesses. There are several portions in the statements witnesses which have been brought on record by the defence counsel on which there is complete contradiction between the statements of eye witnesses and the investigating officer. " But the contradictions were, it appears, primarily as to the presence of Harpat Singh and Pratap Singh whose names were mentioned in the first information by witness Ganesh, and against whom no charge sheet was filed and as to some matters not of much importance, such as the acts and conduct of persons other than Noor Khan the appellant in this appeal. For instance, Prabhu denied that he had stated that Prabhu Singh and Sohan Singh were eye witnesses to the assault. Mathura denied that she had stated that the accused had 'indecently abused and threatened Ganesh and Pratap to leave the well otherwise they would kill them, and a similar denial was made by Mst. Bhanwari. The contradiction in the statement of Prabhu related to some proceedings in Court arising out of the disputes relating to the well. It is of course very unsatisfactory that the notes, or .the 'jottings ' as they are 35 2 8. C.India/64 538 called, of the statements made by the witnesses before Hari Singh were not available to the accused because they were destroyed by him and what were made available to the accused were not in truth the statements which could be utilized under section 162 Code of Criminal Procedure. For this unsatisfactory state of affairs, sub. inspector Hari Singh must be held responsible. But solely on that account, as we have already observed, we are unable to hold that the trial was illegal. No attempt appears to have been made by the Trial Court to scrutinize the diary of sub inspector Hari Singh, nor was any objection raised in the High Court that by reason of the failure to make the notes or the jottings available to the accused any prejudice was caused. Not a single question was asked to Hari Singh about the nature of those jottings, or notes whether they were mere memoranda which the writer alone could understand, or were detailed notes of statements made to him, which were arranged into proper shape when dictated to Kapuraram. The High Court in dealing with this objection observed: "Having regard to the manner in which the police statements are alleged to have been prepared by Kapuraram, no value can be attached to them and if the witness disowned certain portions of those statements, his evidence at the trial cannot be rendered unreliable on that account. " The High Court has carefully analysed and considered the evidence of the witnesses who deposed that they had seen the assault and it was assured that four out of the witnesses who had received injuries on their person must have been present on the scene of offence and the testimony of three out of those witnesses was acceptable viewed in the light of the evidence of Mst. Bhanwari and Mst. Mathura. We have gone through the material parts of the evidence of the witnesses to which our attention was directed, and after carefully scrutinising the evidence in the light of the infirmities pointed out, especially the denial of the copies of the notes or jottings made by Hari Singh, we are unable to disagree with the High Court. The Sessions Judge discarded the testimony of the witnesses, in view of discrepancies on matters of compara 539 tively minor importance and because the witnesses were relatives of the deceased, and they made statements as to the distance from which the assault was made which could not be true in the light of the medical evidence. The High Court did not accept this view of the Trial Court. In an appeal with special leave we do not think that we would be justified in interfering with the conclusion of the High Court especially when our attention has not been invited to any substantial infirmity in the reasoning of that Court. We may repeat that the provisions of section 162 Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under section 161 the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the Court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. This, in our judgment, is one of those cases in which such a course is warranted. The action of the sub inspector Hari Singh in destroying the notes cannot but be deplored. But the destruction of the notes recorded by him appears to be the result of ignorance, not of any dishonesty. Even so, if on a careful scrutiny of the evidence we felt that there was reasonable ground for holding that the appellant Noor Khan was prejudiced because he was deprived of the right which the Legislature had ensured him in making his defence, we would have set aside the conviction. We have however considered the evidence of the witnesses 540 carefully and examined it in the light of the criticism offered by counsel for Noor Khan, and after giving due weight to the opinion of the High Court and the Trial Court have come to the conclusion on the facts of this case that no prejudice appears to have been caused. As we have already pointed out, the plea of prejudice caused to_the accused does not appear to have been raised in the High Court, and apart from the general plea 'of illegality of the trial because of the failure to supply the copies of the record of the statements made to Hari Singh, no substantial argument in support of the plea of prejudice has been advanced. On the view we have taken, this appeal fails and is dismissed. Appeal dismissed.

A dispute arose between the appellant and his employees in the "Motor Garage department" in respect of the claim made by the employees for retrenchment and other compensation and leave facilities. The Government of the State of Rajasthan, 'on December 18, 1957, referred under section 10 of the , the above mentioned dispute to the Industrial Tribunal, Rajasthan. Two preliminary objections were raised before the Industrial Tribunal by the appellant against the maintainability of the reference: (1) That without the sanction of the Union Government under section 87B of the Code of Civil Procedure, the reference to the Industrial Tribunal was incompetent. (2) That on the date when the reference was made no Industrial Tribunal was constituted under section 7A of the as amended by Act 36 of 1956, and on reconstitution of the Tribunal, the reference became incompetent. The Tribunal rejected both the objections. The High Court also dismissed the writ petition filed by the appellant challenging the validity of the order of the Tribunal. Hence this appeal. Held, (i) Section 86 read with section 87 of the Code of Civil Procedure in terms protects a Ruler from being "sued" and not against the institution of any other proceeding which is not in the nature of a suit. A proceeding which does not commence with a plaint or petition in the nature of a plaint, or where the claim is not in respect of a dispute ordinarily triable in a civil court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure. Section 86 of the Code excludes the jurisdiction of the civil courts and must be strictly construed. It does not debar the commencement of proceedings for adjudication of an 1/SCI New Delhi/64 1 2 industrial dispute for two reasons:neither party to the proceeding is saed by the initiation of the proceeding and the Tribunal is not a court. (ii) Article 362 of the Constitution declares that in the exercise of legislative and executive power by the Union and the State due regard shall be had to the guarantee or assurance given under any covenant or agreement with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. These rights, privileges and dignities which are, for historical reasons, recommended to be respected, avail the Rulers of Indian States in their status as Indian citizens and not in recognition of any sovereign authority continuing to remain vested in them. In the present case, the appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under article 366(22) of the Constitution has not altered that status, but as a citizen he is assured a privileged position. (iii) By sub section (2) of the Rajasthan Industrial Trjbunal (Constitution and Proceedings) Validating Act, 1959, the Tribunal originally constituted under section 7 of the , before the Act was amended by Act 36 of 1956, is to be deemed to have been duly constituted under section 7A, and the reference made on December 18, 1957 is to be deemed to have been made as if the Tribunal were constituted under section 7A of the amended Act. The Validating Act is, because of Item 22 List III of the Seventh Schedule to the Constitution, within the competence of the State Legislature. As the Act was reserved for the consideration of the President and has received his assent, by virtue of article 254(2) it must prevail in the State of Rajasthan. Mundra Metal Works Private Ltd. vs State of Rajasthan, W.P.No. 107/58, referred to.

(Civil) No. 1050 of 1986. (Under Article 32 of the Constitution of India). A.C. Gulati, S.K. Goel, S.K. Bansal and L.C. Goyal for the Petitioner. T.S.K. Iyer, Mariarputham, Ms. A. Mathut, M. Veerappa, Pramod Swarup, K. Ramkumar, R. Bana, A. Subba Rao, S.K. Bhattacharya, Ms Urmila Kapoor and Ms. Janki for the Re spondents. The Judgment of the Court was delivered by PATHAK, CJ. On 31 July, 1987, we allowed this writ petition and directed the respondents to admit the petition er, Meenakshi Malik, in one of the three Delhi Medical Colleges in the first year course prescribed for the M.B.B.S. Degree. We said that the reasons would be pro nounced later. We proceed to do so now. The petitioner was born in Delhi on 8 September, 1967. Her father, Shri O.P. Malik, was employed in the National Council of Educational Research and Training, Sri Aurobindo Marg, New Delhi 860 and her mother, Smt. Kanta Devi Malik was employed in the Government Girls Senior Secondary School, Mehrauli, New Delhi. The petitioner attended the Junior Public School, Shakti Nagar, upto Class II and the Cambridge School, Siri niwaspuri, New Delhi, upto Class IX until 19 January, 1982. The petitioner 's father was placed on deputation in January 1982 with the Government of Nigeria to serve in its Ministry of Education through the Ministry of Home Affairs, Depart ment of Personnel and Administrative Reforms, Government of India, New Delhi. The petitioner, who was a minor at the time, had to accompany her parents along with her minor brother. In Nigeria, the petitioner continued her education as an overseas candidate and appeared for the examination conducted by the University of London in Kanduna, Nigeria, and she passed the General Certificate of Education Ordinary level (GCE 'O ' level) which is recognised by the Central Board of Secondary Education, New Delhi, as equivalent to Class XI in India. On completing the period of his deputation on 8 April, 1984 the petitioner 's father returned to India with his family. The petitioner was admitted to Class XII in the Delhi Public School, Mathura Road, New Delhi. The Central Board of Secondary Education permitted her admission to that Class. The petitioner appeared in the All India Senior School Certificate Examination conducted by the Central Board of Secondary Education, New Delhi, in March, 1985 and passed the examination. The petitioner then sat for the Entrance Examination for admission to one of the three Medical Colleges in Delhi, and she obtained 750 marks. The candidates who obtained an equal number of the marks or even less were granted admission, but the petitioner was denied admission. She fell for consideration in the quota of seven ty per cent of the seats reserved for candidates who had passed the qualifying examination from the University of Delhi or the Central Board of Secondary Education or the Council for the Indian School Certificate Examination from recognised schools conducting regular classes in the Union Territory of Delhi. But she was denied admission because she had not satisfied the further condition that the last two years of education should be had in a school in Delhi. Aggrieved by the denial of admission, the petitioner filed the present writ petition. It seems to us that the qualifying condition that a candidate appearing for the Entrance Examination for admis sion to a Medical College in Delhi should have received the last two years of education in a school in Delhi is unrea sonable when applied in the case of those candidates who were compelled to leave India for a foreign country by 861 reason of the posting of the parent by the Government to such foreign country. There is no real choice in the matter for such a student, and in many cases the circumstances of the student do not permit her to continue schooling in India. It is, of course, theoretically possible for a stu dent to be put into a hostel to continue her schooling in Delhi. But in many cases this may not be feasible and the student must accompany a parent to the foreign country. It appears to us that the rigour of the condition prescribing that the last two years of education should be received in a school in Delhi should be relaxed, and there should be no insistence on the fulfilment of that condition, in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them. Rules are intended to be rea sonable, and should take into account the variety of circum stances in which those whom the rules seek to govern find themselves. We are of opinion that the condition in the prescription of qualifications for admission to a medical college in Delhi providing that the last two years of educa tion should be in a school in Delhi should be construed as not applicable to students who have to leave India with their parents on the parent being posted to a foreign coun try by the Government. Accordingly, the denial of admission to the petitioner to a seat in one of the Medical Colleges in Delhi must be held to be unreasonable. It is not disputed that if the condition of schooling for the last two years in a school in Delhi is removed from the way, the petitioner would be entitled to admission in a Medical College in Delhi. In the circumstances, the petitioner is entitled to an order di recting the respondents to admit her to one of the Medical Colleges in Delhi. T.N.A. Petition Allowed.

With a view to preventing the petitioner detenu from indulging in activities that were prejudicial to the mainte n ance of public Order in Greater Bombay, the Commissioner of Police, Greater Bombay, in exercise of the powers conferred on him by Sub Section (2) of Section 3 of the read with clause 4 of the National Secu rity (Conditions of detention) (Maharashtra) Order 1980 passed on Order of detention, pursuant whereof the Petition er detenu was detained in Central Prison, Nasik. He was furnished with copies of grounds of detention and other material on the basis of which the detaining authority based his subjective satisfaction. In order to challenge the legality and validity of the detention Order, the detenu filed a Writ Petition before the Bombay High Court which was dismissed. Against the Order of the High Court, the detenu petitioner has filed criminal appeal after obtaining special leave. He has also filed a separate Writ Petition in this Court challenging his deten tion. Both were heard together by this, Court. Counsel for the appellant raised several contentions assailing the legality of the detention order, one of which being that there was inordinate and unexplained delay caused by the Union of India in considering and disposing of his representation dated 26 9 88, as such his continued deten tion was unconstitutional and illegal being violative of Article 22(5) of the Constitution. Allowing the appeal as also the Writ Petition this Court 192 HELD: The detenu has an independent constitutional right to make his representation under Article 22(5) of the Con stitution of India. Correspondingly there is a Constitution al mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correct ness of the detention Order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. [198H; 199A B] (Jayanarayan Sukul vs State of West Bengal, ; ; A bdul Karim & Ors. vs State of West Bengal, ; ; Pankaj Kumar Chakravarty & Ors. vs State of West Bengal, ; This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutional ly impermissible and illegal; since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution. [199B C] The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the repre sentation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends upon the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. [199D] Rashik Sk. vs State of West Bengal, Smt. Shalini Soni & Ors. vs Union of India & Ors. , ; , In the instant case, the gap between the receipt and disposal of the representation is 28 days but upon the date of service of the order of rejection on the detenu the delay amounts to 32 days. The only explanation offered by the 3rd respondent is that further information required from the State Government was received by the third respondent on 17 10 88 after a delay of nearly 14 days and then the repre sentation of the detenu was disposed of on 27 10 88 within which period there were certain holidays. There is an inor dinate and unreasonable delay and the explanation given by the third respondent is not satisfactory and acceptable. Detenu directed to be set at liberty forthwith. [199F H; 200A, B] 193 B. Sundar Rao & Ors. vs State of Orissa, ; Jnanendra Nath Roy vs The State of West Bengal, ; Frances Coralie Muffin vs W.C. Khambra and Others, ; ; Vijay Kumar vs State of Jammu and Kashmir State of Uttar Pradesh and another; , and Mohinuddin alias Moin Master and Ors., vs D.M. Beed, ; , referred to.

Appeal No. 493 of 1960. Appeal by special leave from the judgment and order dated April 29,1959, of the Calcutta High Court in Appeal from Original Order No. 177 of 1958. section T. Desai, D. N. Mukherjee and B. N. Ghosh, for the appellants. C. K. Daphtary, Solicitor General of India, section K. Kapur and P. C. Chatterjee, for the respondent. December 12. The judgment of the Court was delivered by SHAH,J. The appellants are a firm carrying on business as importers in the name and style of "M. 21 Golodetz & Company" at 120, Wall Street, New York in the United States of America. The respondents are a firm carrying on business, among others as exporters of manganese ore and their principal office of business is at Bentinck Street in the town of Calcutta. By a contract in writing dated July 5, 1955 the respondents agreed to sell and the appellants agreed to buy 25,000 tons of manganese ore on the terms and conditions set out therein. The contract contained the following arbitration clause : "Arbitration : Any dispute arising out of the contract is to be settled by arbitration in New York according to the rules of the American Arbitration Association. " Between September 1956 and August 1957 the respondents supplied 5478 tons of manganese ore. Disputes having arisen between the parties about the liability of the respondents to ship the balance of the goods not delivered, the appellants referred them on or about January 15, 1958 to the arbitration of the American Arbitration Association and claimed compensation on the plea that the respondents had unlawfully made default in shipping the balance of the goods agreed to be sold. On February 2, 1958 the respondents commenced an action on the original side of the High Court of Calcutta claiming a decree that the written contract dated July 5, 1955 be adjudged void and delivered up and cancelled, that a perpetual injunction be issued restraining the appellants, their servants and agents from taking steps in purported enforcement of the said contract and that a declaration (if necessary) be made that the said contract stands discharged and that the parties have no rights and obligations thereunder. It was the case of the respondents that the appellants had accepted manganese ore shipped till August 1957 in full satisfaction of their liability and that the contract was discharged and the rights and liabilities 22 of the parties thereunder came to an end. In the alternative the respondents pleaded that the appellants had repudiated the contract or had committed breaches thereof and on that account also the contract stood discharged or had become void or voidable at their option and that they had avoided the same. In the further alternative they pleaded that the contract had become impossible of further performance and that the same stood frustrated or discharged and they were exempted from further performance thereof. The appellants thereupon petitioned the High Court of Calcutta for an order that the proceedings in suit No. 194 of 1958 commenced by the respondents be stayed by an order under section 34 of the X of 1940. and that an injunction be issued restraining the respondents, their agents and servants from proceeding with the hearing of the suit. Ray, J, who heard the petition held that to the agreement to submit the disputes to arbitration to a foreign arbitral body section 34 of the Indian , applied that the remedy of the party aggrieved by the manner in which the proceedings are conducted, or by the award was to contest the arbitration proceeding and the award in the foreign tribunal, according to the law applicable thereto, and that there was no sufficient reason for not staying the action filed in breach of the agreement to refer the disputes arising under the contract to arbitration. In appeal under the Letters Patent against the order, the High Court held that the Court of first instance had not exercised its discretion properly for it had failed to take into consideration certain important circumstances emerging from the evidence, viz. that all the evidence regarding the contract and the disputes was in India, that there were on account of the restrictions imposed by the Government of India special difficulties in securing foreign exchange for producing evidence before a foreign arbitration tribunal, that it would be impossible for the respondents to produce their evidence and there 23 fore the foreign arbitration tribunal "would Dot be a safe and convenient forum for a just and proper decision of the disputes between the parties. " The learned judges also observed that it was conceded by the Advocate General appearing on behalf of the appellants that the entire matter would be governed by the Indian laws, the Indian and the Indian Contract Act and on that account also the discretion of the Court to refuse to stay the suit should be exercised. The High Court accordingly reversed the judgment of Ray, J., and vacated the order passed by him. Against that order, with special leave, this appeal is preferred. We will assume for the purpose of this appeal that section 34 of the invests a Court in India with authority to stay a legal proceeding commenced by a party to an arbitration agreement against any other party thereto in respect of any matter agreed to be referred, even when the agreement is to submit it to a foreign arbitration tribunal. Where a party to an arbitration agreement commences an action for determination of a matter agreed to be referred under an arbitration agreement the Court normally favours stay of the action leaving the plaintiff to resort to the tribunal chosen by the parties for adjudication. The Court in such a case is unwilling to countenance, unless there are sufficient reasons, breach of the solemn obligation to seek resort to the tribunal selected by him, if the other party thereto still remains ready and willing to do all things necessary for the proper conduct of the arbitration This rule applies to arbitrations by tribunals, foreign as well as domestic. The power enunciated by section 34 of the is inherent in the Court : the Court insists, unless sufficient reason to the contrary is made out, upon compelling the parties to abide by the entire bargain, for not to do so would be to allow a party to the contract to approbate and reprobate, and this consideration may 24 be stronger in cases where there is an agreement to submit the dispute arising under the contract to a foreign arbitral tribunal. A clause in a commercial transaction between merchants residing in different countries to go to arbitration is an integral part of the transaction, on the faith of which the contract is entered into, but that does not preclude the Court having territorial jurisdiction from entertaining a suit at the instance of one of the parties to the contract, even in breach of the covenant for arbitration. The Court may in such a case refuse its assistance in a proper case, when the party seeking it is without sufficient reason resiling from the bargain. When the Court refuses to stay the suit it declines to hold a party to his bargain, because of special reasons which make it inequitable to do so. The Court ordinarily requires the parties to resort for resolving disputes arising under a contract to the tribunal contemplated by them at the time of ' the contract. That is not because the Court regards itself bound to abdicate its jurisdiction in respect of disputes within its cognizance, it merely seeks to promote the sanctity of contracts, and for that purpose stays the Suit. The jurisdiction of the Court to try the suit remains undisputed : but the discretion of the Court is on grounds of equity interposed. The Court is therefore not obliged to grant stay merely because the parties have even under a commercial contract agreed to submit their dispute in a matter to an arbitration tribunal in a foreign country. It is for the Court, having regard to all the circumstances, to arrive at a conclusion whether sufficient reasons are made out for refusing to grant stay. Whether the circumstances in a given case make out sufficient reasons for refusing to stay a suit is essentially a question of fact. In the present case the circumstances, in our judgment, are somewhat peculiar. The appellants in their petition for stay averred that the petition was bona fide, and was filed at the earliest possible 25 opportunity, that the appellants were ready and willing to do all things necessary for the proper conduct of the arbitration proceeding and there was no sufficient reason why the matters in respect of which the suit had been filed could not be referred to arbitration in accordance with the arbitration agreement. The respondents by their counter affidavit contended that the entire evidence regarding the subject matter of the suit and all the witnesses in connection therewith were in India and that no part of the evidence regarding any of the aforesaid matters was in New York. They also submitted that the proper law applicable to the contract dated July 5, 1955 was the Indian law and that the Indian law of Contracts would govern the rights and obligations of the parties. They also contended that the suit raised difficult questions of law applicable to the contract, and on that account also they should not be required to submit the dispute to adjudication by lay men. It was also submitted that the arbitration clause even if it was binding on the respondents firm contemplated a foreign arbitration i.e. the arbitration was to be held in New York and any award, that might be made would be a foreign award, the arbitrators not being subject to the control of the Courts in India and therefore the provisions of the including section 34 would not be availed of by the appellants. By their counter affidavit the appellants did not challenge the assertion made by the respondents that all the evidence in connection with the dispute was in India and that no part of the evidence was in New York. The constituted attorney of the appellants in paragraph 11 of his counter affidavit merely affirmed that " 'there is no sufficient reason why the matters in respect of which the said suit has been filed should not be referred to arbitration in accordance with the arbitration clause in the said agreement. I deny that there is any valid and/or sufficient reason why the said disputes which are the subject matter of the said suit should not be so referred 26 to arbitration. I further say that it would be a cause of injustice to the petitioners to permit the respondents, subsequent to the conclusion of a contract to pick and to choose as whim or prejudice may dictate which clauses are binding and which are "inoperative." He further stated in paragraph 12 I do not admit that evidence with regard to matters mentioned in the said paragraph (10(a) of the res pondent 's affidavit) is necessary or cannot be given before the arbitrators as alleged. In particular, deny that if arbitration is held in terms of the agreement as deliberately concluded by and between the parties there will be any denial of justice as alleged or at all. I do not admit that it will be necessary or that it will not be possible for the respondent to send any representative or to take any witness to New York as alleged. On the other hand, if the suit is not stayed, the petitioners will be greatly prejudiced and will suffer hardship. " The High Court addressed itself to the question, whether the pleas raised by the respondents constituted sufficient reason within the meaning of the , and pointed out, and in our judgment it was right in so doing, that the statement made in the affidavit of the respondent had remained practically unchallenged, that all the evidence in the case relating to the disputes was in India and that was a strong ground for not exercising the discretion in favour of the appellants. It must be observed that having regard to the severe restrictions imposed in the matter of providing foreign exchange to individual citizens it would be impossible for the respondents to take their witnesses to New York and to attend before the arbitrators at the arbitration proceeding to defend the case against them and the proceeding before the arbitrators would in effect be ex parte. That would result in injustice to the respondents. Undoubtedly the appellants would be put to some inconvenience if they are required to defend 27 the suit filed against them in India, but the High Court has considered the balance of inconvenience and the other circumstances and has come to the conclusion, and in our judgment that conclusion is right, that the facts established make out 'sufficient reason ' for not granting stay. It was urged by counsel for the appellants that the High Court for reasons which were not adequate interfered with the order which was within the discretion of the trial judge and on that account the order must be set aside. But the High Court has pointed out that Ray, J., 'did not give full, proper and adequate consideration to all the circumstances and failed to apply his mind to the relevant affidavits ' from which it emerged that all the evidence relating to the dispute was in India and that he did not express his views on the diverse contentions raised and remained content to observe that he was not in a position to decide the questions raised thereby and granted stay because he did not find any compelling reasons for exercising the discretion against the appellants. This criticism of the High Court appears not to be unjustified. The High Court was therefore competent on the view expressed in interfering with the discretion. The two Courts below have differed on the question as to the law applicable to the contract. Ray, J., held that the contract was governed by the American law. In appeal Mr. section Choudhry appearing for the appellants propounded that view, but the Advocate General of Bengal who followed him conceded (as observed by the High Court) that the "entire matter would be governed by the Indian law, the matter of arbitration by the Indian , and the other matters under the aforesaid contract by the Indian Contract Act, x x x x x so far as the rights and obligations under the disputed contract are concerned, the parties must now be taken 28 to have accepted the Indian Contract Act as the relevant law for their determination. " Counsel for the appellants say that no such concession was made before the High Court by the Advocate General, and the observations made in the judgment were the result of some misconception. Counsel relies in support of this submission upon an affidavit sworn by one Surhid Mohan Sanyal constituted attorney of the appellants filed in this Court on the day on which special leave to appeal was granted. Apart from the circumstance that the affidavit is couched in terms which are vague, and the denial is not sworn on matters within the personal knowledge of the deponent, it is a somewhat singular circumstance, that Sanyal who swore the affidavit relied upon, did not when he swore an affidavit in support of the petition for certificate under article 133 of the Constitution before the High Court, make any such assertion. But on the view expressed by us, we deem it advisable not to express any opinion on the question as to the law applicable to the contract. It will be for the Court trying the suit to deal with that question, and to decide the suit. The appeal therefore fails and is dismissed with costs. Appeal dismissed.

The appellant was tried by the jury for kidnapping and committing the murder of one Pancham Sukla. The jury returned a verdict of guilty against him under sections 364 and 302 of the Indian Penal Code. The Sessions judge accepted the verdict and sentenced him to death under section 302 and to rigorous imprisonment for life under section 364. The High Court acquitted appellant of the offence of kidnapping under section 364, but while confirming his conviction under section 302, reduced the sentence to imprisonment for life. The appellant came to this Court on a certificate granted by the High Court. In this Court, the appellant challenged the identification of the skeleton produced in the case as that of the deceased. His other contentions were that the super imposed photograph was not admissible under any section of the Evidence Act, there was misdirection to the jury in setting out the statement of the accused to the police which led to the discovery of the skeleton and that he had no intention of killing deceased and killing must have taken place as a result of some quarrel between him and the deceased. The super imposed photograph was admissible in evidence under section 9 of the Evidence Act. That photograph was not any trick photograph seeking to make something appear different from what it was in reality. There was no distortion of truth involved in it or attempted by it. A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other. Both the photographs are of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison. Both the photographs would be admissible in evidence and no objection could be taken to their being examined together. 853 There was no misdirection to the jury insetting out the statement of the accused to the police which led to the dis covery of the skeleton. There was no substance in the contention of the appellant that killing must have taken place as a result of some quarrel. The jury had held appellant guilty of murder. This Court is not concerned with the correctness of the acquittal of the appellant by the High Court under section 364 of Indian Penal Code. No suggestion has been made before this Court that there was misdirection by the Sessions judge in his charge to the jury. There is no scope for the argument that verdict of the jury should be interfered with or the conviction based on it altered on hypothetical considerations not founded on any facts on record. Kotayya vs Emperor, A. 1. R. and State of U.P. vs Deoman Upadhyaya, (19611 1 section C. R. 14, relied on.

Civil Appeal No. 633 of 1991. From the Judgment and Order dated 1.8.1989 of the Himachal Pradesh High Court in F.A.0. (H.M.A.) No. 28 of 1989. Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellant. Subhagmal Jain and H.K. Puri for the Respondent. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. Special Leave granted. This appeal from a decision of the Himachal Pradesh High Court concerns the validity of a decree of dissolution of marriage by mutual consent, and is said, probably rightly, to raise an important issue. The issue is whether a party to a petition for divorce by mutual consent under Section 13B of the ( 'Act ') can unilaterally withdraw the consent or whether the consent once given is irrevocable. The appellant is the wife of the respondent. They were married on 21 November 1968. They lived together for about six to seven 277 months. Thereafter, it is said that the wife did not stay with the husband except from 9 December 1984 to 7 January 1985. That was pursuant to an order of the Court, but it seems that they did not live like husband and wife during that period also. On 8 January 1985, both of them came to Hamirpur. The wife was accompanied by her counsel, Shri Madan Rattan. After about an hour discussion, they moved a petition under Section 13 B for divorce by mutual consent in the District Court at Hamirpur. On 9 January 1985, the Court recorded statements of the parties and left the matter there. On 15th January 1985, the wife filed an application in the Court, inter alia, stating that her statement dated 9 January 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce. Nor they were permitted to accompany her to the Court. She said that she would not be party to the petition and prayed for its dismissal. The District Judge made certain orders which were taken up in appeal before the High Court and the High Court remanded the matter to the District Judge for fresh disposal. Ultimately, the District Judge dismissed the petition for divorce. But upon appeal the High Court has reversed the order of the District Judge and granted a decree for dissolution of the marriage by mutual consent. The High Court has observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. The High Court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent. Section 13 B was not there in the original . It was introduced by the Amending 68 of 1976. Section 13 B provides: 13 B(l) Subject to the provisions of the a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. 278 (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. " It is also necessary to read Section 23(l)(bb): 23(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and . ." Section 13 B is in pari materia with Section 28 of the . Sub section (1) of Section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties. Similarly, sub section (2) providing for the motion before the Court for hearing of the petition should also be by both the parties. There are three other requirements in sub section (1). There are: (i) They have been living separately for a period of one year. (ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved. The 'living separately ' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately ', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as 279 husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together ' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. Under sub section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the Court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. The question with which we are concerned is whether it is open to one of the parties at any time till the decree of divorce is passed to withdraw the consent given to the petition. The need for a detailed study on the question has arisen because of the fact that the High Courts do not speak with one voice on this aspect. The Bombay High Court in Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe, AIR 1984 Bom. 302, has expressed the view that the crucial time for the consent for divorce under Section 13 B was the time when the petition was filed. If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent. The court has drawn support to this conclusion from the principle underlying Order XXIII Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs or one of the parties to the suit. The High Court of Delhi adopted similar line of reasoning in Smt. Chander Kanta vs Hans Kumar and Anr., AIR 1989 Delhi 73 and the Madhya Pradesh High Court in Meena Dutta vs Anirudh Dutta, [1984] 11 DMC 388 also took a similar view 280 But the Kerala High Court in K.L Mohanan vs Jeejabai, AIR 1988 Kerala 28 and the Punjab and Haryana High Court in Harcharan Kaur vs Nachhattar Singh, AIR 1988 Punjab & Haryana 27 and Rajasthan High Court in Santosh Kumari vs Virendra Kumar, AIR have taken a contrary view. It has been inter alia, held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the Court passes a decree for divorce. The satisfaction of the Court after holding an inquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent. The Kerala High Court in particular has ruled out the application of analogy under Order XXIII Rule I of the Code of Civil Procedure since it is dissimilar to the situation arising under Section 13 B of the Act. From the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be party to the joint motion under sub section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub section (2) of Section 13 B is clear on this point. It provides that "on the motion of both the parties . if the petition is not withdrawn in the meantime, the Court shall pass a decree of divorce What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bonafides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent. 281 Sub section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutualitly and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13 B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard". [See (i) Halsbury Laws of England, Fourth Edition Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed. 1 p. 291 and (iii) Beales vs Beales, [ at 674]. In our view, the interpretation given to the section by the High Courts of Kerala, Punjab & Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view. The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra) cannot be said to have laid down the law correctly and they stand overruled. In the result, we allow the appeal and set aside the decree for dissolution of the marriage. In the circumstances of the case, however, we make on order as to costs. T.N.A. Appeal allowed.

The appellant wife and the respondent husband filed a petition under section 13 B of the for divorce by mutual consent in the District Court and their statements were recorded. Subsequently, the appellant filed an application in the Court for dismissal of the petition stating that she was not willing to be a party to the petition and that her statement was obtained under threat and pressure of husband. The District Judge dismissed the petition but on appeal the High Court reversed the order of the District Judge and granted a decree of divorce by holding that the consent to a petition for divorce by mutual consent cannot be unilaterally withdrawn and such a withdrawal would not take away the jurisdiction of the Court, if the consent was otherwise free; and since the wife 's consent was without any force, fraud or undue influence she was bound by the consent. Hence this appeal by the wife. Allowing the appeal and setting aside the decree of divorce, this Court, HELD: 1. An analysis of Section 13 B makes it apparent that the filing of the petition under section 13 B(l) with mutual consent does not authorise the Court to make a decree for divorce. The parties are required to make a joint motion under sub section (2) which should not be earlier than six months after the date of presentation of the petition 275 and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The Court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the Court is satisfied that the consent of the parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. [280D, 279C D] 2. The period of waiting from 6 to 18 months referred to in section 13 B(2) is intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition i.e. it may not be a party to the joint motion under sub section (2). This sub section requires the court to hear the Parties which means both the parties, But the section does not provide that if there is a change of mind it should not be by one Party alone, but by both. Therefore, if one of the parties at that stage withdraws its consent the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition it negates the whole idea of mutuality and consent for divorce. Mutua consent to the divorce is a sine qua non for passing a decree for divorce under section 13 B. Mutual consent should continue till the divorce decree is Passed. it is a positive requirement for the Court to Pass a decree of divorce. [280D, 281A.B] K.I. Mohanan vs Jeejabai, A.I.R. 1988 Ker. 28; Harcharan Kaur vs Nachhattar Singh, A.I.R. 1988 P & H. 27 and Santosh Kumari vs Virendra Kumar, A.I.R. ; approved. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe, A.I.R. 1984 Bom. 302; Smt. Chander Kanta vs Hans Kumar and Anr., A.I.R. 1989 De. 4 73; and Meena Dutta vs Anirudh Dutta, 1984 11 DMC 388 (MP); overruled. Halsbury Laws of England, 4th Edn. 13 para 645; Rayden on Divorce, 12 Edn Vol 1 p. 291 and Beales vs Beales, ; referred to. Section 13 B of the is in para materia with 276 Section 28 of the . Sub Section (1) of section 13 B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties. There are three other requirements in sub section (1). Firstly, it is necessary that immediately preceding the presentation of the petition the parties must have been living separately for a period of one year or more. The expression 'living separately ' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement is that they 'have not been able to live together ' which indicates the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. [278E H, 279A B]

Appeal No. 247 of 1954. Appeal from the judgment and decree dated July 21, 19 53 of the Labour Appellate Tribunal of India, Third Bench, Lucknow in Appeal. No. Calcutta 44 of 1952. G. G. Mathur, for the appellant. H. J. Umrigar, amicus curiae for the respondent, 874 1956. October 23. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. The appellant is a limited Company, which had been carrying on business in crushing sugarcane at a place called Pipraich in Gorakhpur District from the year 1932. In 1946 it decided to expand its business, and with that object, sold its old machinery which had a crushing capacity of 160 tons per day, and purchased a new one with 650 tons capacity. The new plant was installed in 1947, and it actually started working in 1948 49. During this period, the sugar industry was passing through a crisis owing to shortage of sugarcane, and in consequence, the Government assumed control of its production and supply. The quota which was allotted to the appellant 's Mill proved too small to its being worked profitably, with the result that in 1948 49 and 1949 50 the Company sustained losses which according to the appellant came to Rs. 2,67 042 7 4. After several unsuccessful attempts at setting a larger supply, the management wrote to the Government on May 11, 1950, either to increase their quota or to permit them to sell the Mills. In October, 1950, the Government granted permission for the sale of the plant and machinery, and pursuant thereto, the management sold them to a Madras party. As the crushing season was then on, the appellant obtained from the purchaser a lease of the Mills for the current season agreeing to deliver possession thereof on the termination of the lease. It should be mentioned that the appellant was also carrying on negotiations with the purchaser, for itself dismantling the machinery and erecting it at Madras for a lump consideration, expecting to perform the contract through its own workmen. When the workmen became aware of the agreement of sale, their reaction to it was thoroughly hostile, and acting through their union, the respondent herein, they decided to prevent the transaction going through, as otherwise they would be thrown out of employment. With that object, they moved the 875 Government to cancel the permission granted to the appellant for the sale of the Mills, and they also passed a resolution on December 26, 1950, to go on strike from January 12, 1951, and communicated the same to the appellant. This led to correspondence between the parties, and as that is the foundation of the claim for compensation put forward by the respondent and awarded by the Tribunal, it becomes necessary to set it out with sufficient fulness. On January 3, 1951, the Managing Director offered through the Manager of the Mills, to allot 25 per cent. of the profit on the sale transaction with the Madras party on certain terms and subject to the condition "that the notice of strike should be withdrawn at once and today, so that arrangement of work could be made". To this, the reply of the Union on January 5, 1951, was as follows: "With reference to the assurance given by the Managing Director, communicated by your goodself to us under your No. 975 dated 4th January 1951, asking us to withdraw the notice of strike, we regret to inform you that our fight is with the Government, which is not solved with this only. Our members are bent upon keeping the Sugar mills here at any cost, either by strike, satyagrah, etc., or through any other means guided by our federation, otherwise there is no assurance of employment of thousands of creatures". Then the letter proceeded to take exception to some of the terms, and finally wound up by stating that the workmen were waiting for their President Kashinath Pandey to advise them in the matter. Replying to the objections raised by the respondent to some of the terms, the management wrote on January 8,1951, that they were ready to reconsider them, but insisted on the withdrawal of notice of strike as "the chief point". On January 9,1951, Kashinath Pandey came to Pipraich, and discussed the matter with the management, and following upon it, the General Manager wrote to the respondent on January 10, 1951, that "in case the strike notice was withdrawn at once he would accede to the following points raised by the Union", and then the points were set down. The 876 letter concluded by stating that the amount of compensation "will not be less than a lac". The respondent replied to this on the same day that the workers were waiting for the "final order" of Kashinath Pandey in the matter, and assured the management that "in the meantime the strike was not coming off from the 12th". After this, the appellant did not hear from the respondent, the strike also did not take place, and the crushing went on till the end of January, 1951, when the season came to an end. One of the points that arises for our determination in this appeal is whether on this correspondence there was a concluded. and binding agreement that the appellant should pay 25 per cent. of the profits on the sale transaction to the workmen. To continue the narration, the lease having expired with the crushing season, the purchaser came over to Pipraich to take delivery of the Mills and to arrange for the machinery being dismantled and removed to Madras for being erected there. The appellant who, as already stated, was negotiating to get the dismantling done for a lump consideration found that its workmen were as hostile to it as ever, and refused to help in the work. To adopt the language of the respondent in its written statement "they declined out of sentiment to dig their own graves". After fruitless attempts at getting them to co 'operate in dismantling the machinery, the management put up the following notice on February 28, 1951: "The workers of Pipraich. Sagar Mills Ltd. should know that we have sold our Mill to Madras party under the permission of the Government. The party has arrived for dismantling. Under the terms of agreement, we are bound to help them in this work. So the workers should know that we can do this favour that we can take contract of dismantling here and erection in Madras and keep the workers engaged and request the purchasers for providing them in their concern. Hence it is notified that workers who are not ready to co operate they should consider themselves to be discharged from 1st March 1951. Fifteen days ' notice is served on the workers. Those who 877 create obstructions will be deprived of benefit,, promised to them". But the Union could not reconcile itself to the prospect of the Mills being shifted, and on March 4, 1951 Kashinath Pandey wrote a letter to the Government threatening to go on hunger strike, if the Mills were to be shifted from Pipraich. The workmen were thus in no mood to accept the terms contained in the notice dated February 28, 1951, and so, the management had to issue further notice on March 14, 1951 in the following terms: "Whereas the workers have already been notified that we have sold our entire plant to a Madras party who have arrived to take charge of the Machines and whereas we have to hand over the plant from 15 3 1951 to the purchasers and thus there will be no work for our workers and whereas the Mazdoor Union, has already refused our suggestion to engage the workers in the work of dismantling and erection at Madras. Now in pursuance of our notice dated 28 2 1951, it is notified that the following workers have been discharged from the services since 1 3 1951 subject of course to the payment of 15 days wages. The workers are hereby asked to take their wages of 15 days on the 15th and 16th instant". It appears from a notice dated March 16, 1951, sent by the appellant to the respondent, that after the notice dated March 14, 1951, was issued, Kashinath Pandey had a discussion with the management, as a result of which the date of termination of service of, the workers was extended from the 15th to 21st March pending the decision of the Government on the "future programme of the Pipraich factory", the workmen agreeing on their part to "take up the dismantling of the Mill after the said date". But the Government declined by its letter dated March 21, 1951, to interfere with the sale of the machinery, and in accordance with the understanding reached above, the workers should have co operated with the appellant in dismantling the machinery from March 21. But they declined to do so, and thereupon, acting in accordance with its notices dated February 28, 1951, 114 878 and March 14, 1951, the management duly discharged them. In view of the inability of the appellant to take up the contract, the purchaser entered into direct negotiations with the workmen, and on 1 4 1951 concluded an agreement with them for dismantling the machinery. The net result was that the appellant lost a contract on which, as admitted by the respondent, it would have earned a profit of at least Rs. 2 lakhs. The workers. , having taken the benefit of a direct contract with the purchaser for dismantling the machinery, next turned their attention to the appellant, and on the basis of the letters dated January 3, 1951, and January 10, 1951, sent a notice to it on April 19, 1951, asking for distribution among the workers of the "25 per cent labour share of the profits on sale of machinery". By its letter dated June 19, 1951, the appellant repudiated. the claim, and stated: "Then we also refer you to our notice dated 27 2 1951 in which we appealed to the labour to cooperate. with us so that we might take the contract of dismantling here at Pipraich and erection at Etikoppaka and said definitely that those who do not co operate should consider themselves discharged. This would have given us a good saving to meet the demand of the labour, but as you in spite of our appeal and notice refused to co operate, we had to suffer a heavy loss, for which you are directly responsible". Thereafter, the respondent moved the Government to take action in the matter, and the result was that on November 16,1951, the U. P. Government issued a notification under section 3 of the U. P. Industrial Disputes Act XXVIII of 1947, hereinafter referred to as the Act, referring the following dispute to the adjudication of the Industrial Tribunal: "Whether the services of workmen, if so how many, were terminated by the concern known as Pipraich Sugar Mills Ltd., Pipraich, District Gorakhpur, without settlement of their due claims and improperly; and if so, to what relief are the workmen concerned entitled?" By its award dated February 28,1952, the Indus 879 trial Tribunal held firstly that the closure of the business and the sale of the machinery by the appellant was bona fide, as it had been continuously incurring losses and the supply position of sugarcane held out no immediate prospects of improvement, that the conduct of the workmen had been throughout unfair and such as to disentitle them to compensation but that the promise contained in the letters dated January 3 and 10, 1951, to pay 25 per cent. of the profits realised by the sale of the Mills, was binding on the management. It further held, repelling the contention of the appellant, that the notification dated November 16, 1951, was competent, notwithstanding that at that date the business had been closed. The Tribunal then proceeded to ascertain the profits made by the appellant on its sale of the Mills, and held that a sum of Rs. 45,000 representing the 25 per cent. of the net profits was payable to the workmen. The management appealed against this decision but the same was confirmed by the Labour Appellate Tribunal by its order dated July 21, 1953. The matter now comes before us. in appeal under article 136. As the appeal raised questions of importance, and as the respondent was unrepresented we requested Mr. Umrigar to assist us, and we are indebted to him for his learned and comprehensive argument. Two contentions have been urged in support of the appeal: (1) The notification dated November 16, 1951, referring the dispute to the adjudication of the Industrial Tribunal is ultra vires, and the reference and the award therein are in consequence void; and (2) there was no concluded or binding agreement by the appellant to pay the workmen any share of profits in the sale transaction and the award is therefore bad on the merits. Taking the first contention, the provision of law under which the impugned notification dated November 16, 1951, was issued by the State is section 3 of the Act, which runs as follows: "If in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or convenience, or the maintenance of 880 public order or supplies and services essential to the, life of the community, or for maintaining employment, it may, by general or special order, make provision (d) for referring any industrial disputes for conciliation or adjudication in the manner provided in the order". An "industrial dispute", as defined in section 2(k) of the Industrial Disputes Act XIV of 1947 and by force of section 2, that definition applies to the Act"means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person". Now, the contention of the appellant is that it is a condition precedent to the exercise by the State of its power under section 3 of the Act that there should be an industrial dispute, that there could be no industrial dispute according to this definition, unless there is a relationship of employer and employee; that in the present case, as the appellant sold its Mills, closed its business and discharged the workmen on March 21, 1951, paying to them in full whatever was due in accordance with the standing orders. there was thereafter no question of any relationship of employer and employees between them that accordingly there was no industrial dispute at the date of the notification on November 16, 1951, and that it was therefore incompetent. Reliance was placed in support of this position on the observation in Indian Metal and Metallurgical Corporation vs Industrial Tribunal, Madras(1) that the definition of an "industrial dispute" presupposes the continued existence of the industry, and on the decision in K. N. Padmanabha Ayyar vs The State of Madras(2) that there could be no industrial dispute with regard to a business, which was not in existence. It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry, (1) A.I.R. 1953 Mad. 98, 102. (2) 881 and then proceeds on to provide for various steps being taken, when a dispute arises in that industry. Thus, the provisions of the Act relating to lock out, strike, lay off, retrenchment, conciliation and adjudication proceedings, the period during which the awards are to be in force have meaning only if they refer to an industry which is running and not one which is closed. In Messrs Burn and Co., Ltd., Calcutta vs Their Workmen(1), this Court observed that the object of all labour legislation was firstly to ensure fair terms to the workmen, and secondly to prevent disputes between employers and employees, so that production might not be adversely affected and the larger interests of the public, might not suffer. Both these objects again can have their fulfillment only in an existing and not a dead industry. The view therefore expressed in Indian Metal and Metallurgical Corporation vs Industrial Tribunal, Madras (supra) and K. N. Padmanabha Ayyar vs The State of Madras (supra) that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly correct. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide, any dispute arising with reference thereto would, as held in K. N. Padmanabha Ayyar vs The State of Madras (supra), fall outside the purview of the Industrial Disputes Act. And that will a fortiori be so, if a dispute arises if one such can be conceived after the closure of the business between the quondam employer and em ployees. In the light of the principles stated above, we must examine the nature of the dispute which is the subject matter of the reference under the impugned notification. The claim of the workmen is that the promise made by the management in its letters dated January 3, 1951, and January 10, 1951, is a binding agreement and that they are entitled to be paid in accordance therewith. Now, if this contention is well founded, the dispute relates to a claim which arose (1) Civil Appeal No. 325 of 1955, decided on October 11, 1956. 882 while the industry was in existence and between persons who stood in the relationship of employer and employees, and that would clearly be an industrial dispute as defined in the Act. But it is argued for the appellant that even so, the 'notification dated November 16, 1951, would be incompetent as the industry had been closed before that date, and there was therefore no relationship of employer and employee at that point of time. In other words, the power of the State to make a reference under section 3 will depend, according to the appellant, not only on the dispute having arisen in an existing industry but further, on the continued existence of that industry on the date of the notification. We do not find anything in the language of section 3 of the Act to warrant the imposition of this additional limitation on the power of the State to make a reference. That section only requires, apart from other conditions, with which we are not concerned, that there should be an industrial dispute before there can be a ref erence, and we have held that it would be an industrial dispute if it arises out of an existing industry. If that condition is satisfied, the competence of the State for taking action under that section is complete, and the fact that the industry has since been closed can have no effect on it. Any other construction would, in our opinion, result in serious anomalies and grave injustice. If a workman improperly dismissed raises an industrial dispute, and before action is taken by the Government the industry is closed, what happens to the right which the Act gives him for appropriate relief, if the Act vanishes into thin air as soon as the industry is closed? If the contention of the appellant is correct, what is there to prevent an employer who intends, for good and commercial reason, to close his business from indulging on a large scale in unfair labour practices, in victimisation and in wrongful dismissals, and escaping the consequences thereof by closing down the industry? We think that on a true construction of section 3, the power of the State to make a reference under that section must be determined with reference not to the date,on which 883 it is made but to the date on which the right which is the subject matter of the dispute arises, and that the machinery provided under the Act would be available for working out the rights which bad accrued prior to the dissolution of the business. It was next argued that even on this view, the notification dated November 16, 1951, was incompetent inasmuch as the management had offered by its letter dated January 3, 1951, to pay the workmen 25 per cent. of the profits on the sale transaction only on April 30, 1951, and the right to the amount thus accrued to the workmen only after the closure of the business on March 21, 1951. But this argument proceeds on a misapprehension of the correct position on the facts. The true scope of the promise contained in the letter dated January 3, 1951, is that the workmen acquired thereunder a right in praesenti to 25 per cent. of the profits, but that the amount became payable only on April 30, 1951, the reason obviously being that it could be precisely determined only after the transaction was completed. In this view, as the claim for share of profits arose on January 3, 1951, and January 10, 1951, when the industry was working, the reference dated November 16, 1951, would be valid, notwithstanding that the business was closed on March 21, 1951. That brings us on to a consideration of the second question, as to whether there was a concluded agreement binding the appellant to pay 25 per cent. of the profits in. the sale transaction to the workmen. The Tribunal has answered it in the affirmative, and its finding was accepted by the Appellate Tribunal as, being one of fact, it had to be, under section 7 of the Industrial Dispute (Appellate Tribunal) Act No. XLVIII of 1950. It is argued by Mr. Umrigar that following the usual practice of this Court in special appeals not to disturb findings of fact by Tribunals unless there were exceptional grounds therefore we should not interfere with the finding of the Industrial Tribunal that there was a concluded and enforceable agreement. But our difficulty is that the Tribunal has spoken in two voices, and has given inconsistent 884 and conflicting findings, and it has consequently become necessary for us to determine which of its findings should be accepted as supported by materials. We start with the letter dated January 3, 1951, wherein the management made an offer to pay 25 per cent. of the profits of the sale transaction to the workmen. It was expressly subject to the condition that the strike should be called off "at once and today". That was not done. On the other hand, the respondent made certain counter proposals in its letter dated January 5, 1951, and the management replied on January 8, 1951, that it would reconsider its terms provided the strike notice was withdrawn. Thus, the offer contained in the letter dated January 3, 1951, was not accepted and lapsed. Then on January 10, 1951, the management renewed its offer subject again to the condition that the strike notice was withdrawn at once. The respondent passed no resolution withdrawing the notice, and in its reply dated January 10, 1951, it made it clear that it was waiting for Kashinath Pandey for it to come to a final decision '. There was no further communication from the Union. We do not see bow on this correspondence it could be held that there was a concluded agreement between the parties, and that is the view which the Tribunal itself took of it when it observed that "no final agreement could be arrived at. . and consequently the management served a notice on 28th February 1951". But then, it went on to observe that, in fact, the workmen did not go on strike on January 12, 1951, and continued in service till they were served with notice of discharge on February 28, 1951, that that was consideration for the promise made by the agreement, which must therefore be taken to have become a term of service, and that in consequence "the promise of the management as contained in the letters of 3rd and 10th January 1951, is a binding agreement under which the workmen are entitled to compensation for termination of their services on the closure of the Mills". This argument rests on a confusion of thought. The question whether there was consideration. for the promise made by the 885 management in its letters dated January 3, and January 10, 1951 arises only if the offer contained in the letters had been accepted by the respondent, so as to ripen into an agreement. And if there was no concluded agreement between the parties, as the Tribunal itself had held, then the further question as to whether it was supported by consideration would not arise, nor would there be any question of its becoming one of the terms of the service. It was argued that though a formal resolution withdrawing the strike was not passed, in fact there was no strike, and that must be taken to be acceptance of the offer by conduct. That would not be acceptance as required by the 'appellant, and that alone would be sufficient to reject the contention of the respondent. But this contention must fail even on the merits. In its letter dated January 10, 1951, the respondent, while stating that the strike was not taking place on the 12th, made it clear that this was pending the final decision of the Union. That clearly is not an acceptance of the offer. The matter does not rest there. , The object of the strike was, it should be remembered, not anything directly connected with the terms of employment but something collateral to it. It was to prevent the Mills from being removed from Pipraich to Madras. When the management offered to part with 25 per cent. of the profits of the sale transaction, its object was clearly to disarm the opposition of the workmen and to get the machinery dismantled and delivered to the purchaser peacefully. Did the workmen ever agree to it? As late as March 5, 1951, Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale could not be interfered with, the workmen did not co operate with the management in the dismantling of the machinery with the result that the appellant had to give up the contract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the contract for dismantling, themselves 886 entered into it directly with the purchaser and undoubtedly intercepted a part, if not the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a concluded agreement between the parties binding the appellant to give the workmen a share of the profits of the sale transaction. It was next contended by Mr. Umrigar that even if there was no concluded agreement by the management to pay the workmen a share of profits on the sale transaction, it would have been open to the Tribunal to have awarded compensation for the termination of their services, treating it as retrench ment, and that the 'award of compensation of Rs. 45,000 which was what the management itself had suggested, might be sustained on that footing. This contention assumes that the termination of the services of workmen, on the closure of a business, is retrenchment. But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. It is 'however contended by Mr. Umrigar that the definition of retrenchment in section 2(oo) of the Industrial Disputes Act XIV of 1947 is wide enough to include discharge consequent on the, closure of business, and that under section 25 F, compensation could be awarded therefore Our attention has been invited on behalf of the appellant to the decision in J. K. Hosiery Factory vs Labour Appellate Tribunal(1), where it was held that retrenchment as defined in section 2(oo) does not comprehend discharge on the closure of business, but Mr. Umrigar contends that it is erroneous. We do not consider it necessary to decide this question, as the definition of "retrenchment" in section 2(oo) of Act XIV 1947 and section 25 F therein were inserted by the Industrial Disputes (Amendment) Act No. XLIII of 1953, and we have held in Messrs Burn and Co., Ltd., Calcutta vs (1) A I.R. 1956 All. 498. 887 Their Workmen (supra) that this Act has no retrospective operation. The rights of the parties to the present appeal must therefore be decided in accordance with the law as it stood on March 21, 1951, when the workmen were discharged. It was next contended, on the strength of the decisions in Employees of Messrs India Reconstruction Corporation Limited, Calcutta vs Messrs India Reconstruction Corporation Limited, Calcutta(1) and Messrs Benett Coleman & Company Ltd vs Their Employees(2) that even prior to the enactment of Act XLIII of 1953, the Tribunals had acted on the view that retrenchment included discharge on closure of business, and had awarded compensation on that footing and that the award of the Tribunal in the present case could be supported in that view and should not be disturbed. In Employees of Messrs India Reconstruction Corporation Limited, Calcutta vs Messrs India Reconstruction Corporation Limited, Calcutta (supra), the Tribunal observed at P. 576 as follows: "Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with. In substance the difference between closure and normal retrenchment is one of degree only. As in the case of retrenchment so in the case of closure the workmen are not responsible for closing their jobs. In both the cases, what is called compensation by way of retrenchment relief should be admissible". We are unable to agree with these observations. Though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded, retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on ' closure of business. Moreover, there was no question of closing of business in Employees of Messrs India Reconstruction Corporation Limited, Calcutta vs Messrs India Reconstruction Corporation (1) (1953] L.A.C. 563. (2) 888 Limited, Calcutta (supra), as what happened there was that one of the units of the company, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter. They were, however, quoted and followed without discussion by the Appellate Tribunal in Messrs Benett Coleman & Company Ltd. vs Their Employees (supra), which further remarked at p. 27: "Thus whether the closure was justified or not, the workmen who have lost their jobs would in any event get compensation. If it was not bona fide or not justified, it may be that the measure of compensation would be larger than if it was otherwise". For the reasons given above, we cannot assent to these observations. It, should be mentioned that in Messrs Benett Coleman and Company Ltd. vs Their Employee (supra), there was no closure of business, but winding up of the Calcutta unit by a newspaper publishing company which had its headquarters at Bombay. We must accordingly overrule this contention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workmen should not, in view of their conduct, be awarded compensation, and we entirely agree with it. And as we have found against the agreement, we must allow this appeal, and set aside the award of compensation to the workmen made by the Tribunal. In the circumstances, the parties will bear their own costs throughout. Appeal allowed.

In a suit for partition of immovable property filed in the Court of Munsiff Parappanangadi in the year 1938 that Court passed a preliminary decree for partition on the 18th February, 1940. The parties to the suit took no further interest in the matter for more than two decades. In the meantime according to the order of the High Court of Kerala dated December 22, 1956 refining the territorial limits of the Courts of Munsiffs functioning in district Calicut, of which the Court of Munsiff at Parappanangadi was one, the suit property came under the territorial jurisdiction of the Munsiff 's Court at Manjeri. The plaintiff on the 18th January, 1966 filed an application praying that a final decree the suit be passed. Defendant No. 12 immediately took an objection that the Manjeri Court had no territorial jurisdiction to hear the application and that the matter should have been agitated in the Court of Munsiff at Parappanagadi. The objection was overruled by the Manjeri Court which proceeded to partition the property metes and bounds and ultimately passed a final decree in that behalf on 9th July, 1968. An appeal filed against the final decree by defendant No. 12 failed, but he succeeded before learned single Judge of the Kerala High Court who ruled that it was only the Parappanangadi Court that had the territorial jurisdiction to entertain the application and the final decree was set aside. Hence the appeal by special leave. Allowing the appeal, the Court ^ HELD: 1:1. In order that an objection to the place of suing may be entertained by any appellate or revisional Court, the fulfilment of the following three conditions is essential, according to the provisions contained in sub section (1) of section 21 of the Code of Civil Procedure: (i) The objection was taken in the Court of first instance; (ii) it was taken at the earliest possible opportunity and in case where issues are settled, at or before such settlement; (iii) there has been a consequent failure of justice. [185 F G] 1:2. In the present case conditions Nos. 1 and 2 are no doubt fully satisfied; but before the two appellate Courts below could allow the objection to be taken, it was further necessary that a case of failure of justice on account of the place suing having been wrongly selected was made out. Since the respondents failed to point out even before this Court that a failure of justice had occurred by reason 184 of Manjeri having been chosen as the place of suing, the provisions of sub section (1) of section 21 of the Code of Civil Procedure made it imperative for the District Court and the High Court not to entertain the objection, whether or not it was otherwise well founded. [185 H, 186 A C]

Appeal No. 1984 of 1966. Appeal from the judgment and order dated January 2, 1964 of the Madras High Court in T.C. No,. 153 of 1962. section Swaminathan and R. Gopalakrishnan, for the appellant. Veda Vyasa, A. N. Kirpal, R. N. Sachthey and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought from the judgment of the Madras High Court dated January 1, 1964 in Tax Case No. 153 of 1962. The asessment year involved in this appeal is 1948 49, the corresponding previous year being the financial year 1947 48. For the accounting period from November 13, 1947 to November 1, 1948 which was the corresponding previous year for the assessment year 1949 50 there was shown a credit of Rs. 25,000 in the capital account of the appellant. On November 13, 1947, this amount was credited in the books of the appellant. On October 30, 1948 this amount was transferred to the account of one Amrithlal. Ranchoodas, the father in law of the appellant. The Income tax Officer included the said amount as income of the appellant from undisclosed sources in the assessment for the assessment year 1949 50. On appeal to the Appellate Assistant Commissioner the appellant contended that the amount could not be included in the assessment year 1949 50 because the credit appeared prior to March 31, 1948. The Appellate Assistant Commissioner allowed the appeal holding that the credit came into the books of the appellant on November 13, 1947, i.e., in the financial year 1947 48 which is the previous year for the assessment year 1948 49. On this finding, the Appellate Assistant Commissioner deleted the addition of Rs. 25,000 from the assessment of the appellant for the year 1949 50. In doing so, the Appellate Assistant Commissioner followed the decision in C.1.T. vs 19 P.Darolia & Sons(1). Consequently on November 3, 1958 the, Income tax Officer issued a notice under section 34(1)(a) of the Incometax Act, 1922, (hereinafter referred to as the. 'Act ' to the appellant for the assessment year 1948 49. By his order dated April 20, 1959 he rejected the contention of the appellant that the assessment was barred by limitation and assessed the sum of Rs. 25,000 as income from other sources. The appellant took the matter in appeal to the Appellate Assistant Commissioner who, by his order dated February 23, 1960, allowed the appeal. He took the view that there was no finding in the order of the Appellate Assistant Commissioner that the credit represented the income of the appellant or that the same credit should be assessed in the assessment year 1948 49. He further held that the notice under section 34 issued on November 3, 1958 was bad in law and was not saved by the second proviso to section 34(3) of the Act. The Commissioner of Incometax preferred an appeal against the order of the Appellate Assistant Commissioner to the Income tax Appellate Tribunal which allowed the appeal, holding that "the order of the Appellate Assistant Commissioner in the appeal against the assessment for 1949 50 should be taken to contain a finding that the sum of Rs. 25,000 represented income of the assessee to be considered in the assessment year 1948 49". At the instance of the appellant the Appellate Tribunal referred the following questions of law for the opinion of the High Court under section 66(1) of the Act: "(1) Whether on the facts and in the circumstances of the case, the proceedings initiated against the assessee for the assessment year 1948 49 under section 34 and the assessment for the said year are barred by limitation and. hence not lawful? (2) Whether the proceedings initiated against the assessee for the assessment year 1948 49 under section 34 and the assessment made under section 34 for the assessment year 1948 49 could be justified in law as for the purpose of giving effect to, a finding or directions in the order of the Appellate Assistant Commissioner in I.T.A. No. 134 of 1958 59? (3) Whether on the facts and in the circumstances of the case, the assessment made is saved from the bar of limitation under the second proviso to section 34(3)?" By its judgment dated January 2, 1964, the High Court answered the questions in favour of the respondent and against the appellant. The High Court followed an earlier decision in A.S. Khader Ismail vs Income tax officer(1), in which it had held that the word "finding" in the proviso to section 34(3) of the Act must be given a (1) (2) 20 wide significance so as to include not only findings necessary for the disposal of the appeal but it would apply to cases where it is held that the income in question was in respect of an earlier year which was not the subject matter of the appeal before the appellate authority. On behalf of the appellant Mr. Swaminathan put forward the argument that the decision of the High Court is contrary to the view taken by this Court in Income tax Officer, A Ward, Sitapur vs Murlidhar Bhagwan Das(1) in which it was held that the expressions "finding" and "direction", in the second proviso to section 34(3), meant respectively, a finding necessary for giving relief in respect of the assessment for the year in question, and a direction which the appellate or revisional authority, as the case may be, was empowered to give under the sections mentioned in that proviso. A "finding", therefore, could only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate Assistant Commissioner might hold, on the evidence, that the income shown by the assessee was not the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. The finding in that context was that the income did not belong to the relevant year. He might incidentally find that the income belonged to another year, but that was not a finding necessary for the disposal of an appeal in respect of the year of assessment in question. It was further held that the second proviso to section 34(3) did not save the time limit prescribed under section 34(1) in respect of an escaped assessment of a year other than that which was the subject matter of the appeal or revision, as the case may be, and accordingly the notice issued under section 34(1) (a) in that case was barred by limitation and was not saved by the second proviso to section 34(3). In the course of its judgment this Court overruled the judgment of the Madras High Court in A. section Khader Ismail vs Income tax Officer(1). It follows therefore that the view taken by the High Court in the present case is not correct in law and must be overruled. On behalf of the respondent, however, Mr. Veda Vyasa con tended that in answering the reference the effect of section 2 of the Income tax (Amendment) Act (Act 1 of 1959) must be taken into consideration and in view of the amendment made by that section of the amending Act the questions referred to the High Court must be answered necessarily against the appellant. Section 2 of the Amendment Act. 1959 inserted in section 34 of the Act a new sub section (4) which provides: "A notice under clause (a) of sub section (1) may be issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified (1)52 I.T.R. 335. (2) 21 in that subsection before its amendment by clause of section 18 of the Finance Act, 1956 (18 of 1956), had expired in respect of the year to which the notice relates. Section 4 of the Amending Act, 1959 read as follows: "No notice issued under clause (a) of sub section (1) of section 34 of the principal Act at any time before the commencement of this Act and no assessment, reassessment or settlement made or other proceeding taken in consequence of such notice shall be called in question in any court, tribunal or other authority merely on the ground that at the time the notice was issued or at the time the assessment or re assessment was made the time within which such notice should have been issued or the assessment or re assessment should have been made under that section as in force before its amendment by clause (a) of section 18 of the Finance Act, 1956 (18 of 1956), had expired. " Mr. Veda Vyasa referred to the decision of the Bombay High Court in Onkarmal Meghraj vs C.I.T. Bombay I.(1) in which it was held that there was nothing in section 2 or 4 of the Amendment Act of 1959 to restrict the terms of the words "at any time" occurring in section 4 of that Act as meaning "at any time after April 1, 1956", viz., the date on which the amendments made by the Finance Act, 1956, came into force and there was nothing in the provisions of the Amendment Act of 1959 which limited the retrospective operation of section 4. It was also held that since the enactment of the Amendment Act of 1959 a notice issued after April 1, 1956, for reopening an assessment, by virtue of section 4, could not be permitted to be called in question on the ground that the notice was not issued within the period prescribed by the unamended section 34(1)(a). On behalf of the respondent reference was also made to the decision of this Court in section C. Prashar vs Vasantsen Dwarkadas,(2) in which it was held that section 4 of the Amendment Act, 1959 operated on and validated notices issued under section 34(1)(a) as amended in 1948 even earlier than April 1, 1956, in other words, in respect of assessment years prior to March 31, 1956. and therefore notices issued under section 34(1)(a) of the Income tax Act before April 1, 1956, could not be challenged on the ground that they were issued beyond the time limit of eight years from the respective assessment years prescribed by the 1948 amendment. On behalf of the appellant Mr. Swaminathan raised the objection that the point was not taken up by the respondent in the High Court, nor was there any reference to it in the statement of the case tiled by the respondent. It was also contended that the point raised was outside the scope of the questions of law referred by the Appellate Tribunal to the High Court. We do not think there is any substance in the (1) (2 ) ; 22 objection raised on behalf of the appellant. One of the questions referred to the High Court is "whether on the facts and in the circumstances of the case the assessment made is saved from the bar of limitation under the second proviso to section 34(3)?" It is true that the impact of the Amending Act, 1959 (Act 1 of 1959) was not raised before the Appellate Tribunal or before the High Court, but it is not a separate question by itself and is only an aspect of the question of limitation which has already been referred by the Appellate Tribunal to the High Court. As pointed out in CI.T. Bombay V. Scindia Steam Navigation Co. Ltd.,(1) the question of law referred to the High Court under section 66 may be a simple one having its impact on one point, or it might be a complex one, involving more than one aspect and requiring to be tackled from different standpoints. All that section 66(1) requires is that the question of law which is referred to the High Court and which the High Court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal, and it will be an over refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66(1) of the Act. In our opinion, the argument of the respondent with regard to the legal effect of the Amending Act of 1959 (Act 1 of 1959) is within the frame work of the question already referred to the High Court and it is therefore competent to this Court, in a case of this description, to allow a new contention to be advanced. It is, however, necessary that the case should be remanded to the High Court for examining the question of law referred to it after 'considering the impact of the Amending Act of 1959 (Act 1 of 1959). For these reasons we allow this appeal, set aside the judg ment of the High Court dated January 2, 1964 and remand the case to it for further hearing and answering the reference in light of the Income tax Amending Act 1 of 1959. In the circumstances of the case we direct that the respondent should pay the cost of this appeal in this Court, Appeal allowed.

The petitioners were detained under r. 30(1) (b) of the Defence of India Rules, 1962, under orders passed by the State Government in March 1965. Their detention was continued from time to time after review under r. 30A. One review was made in February 1967 when the scope of such a review was governed by the judgment of this Court in Sadhu Singh vs Delhi Administration [1966] I S.C.R. 243 to the effect that such review did not require a judicial approach to the question of continuance of detention. Accordingly, at the review in February 1967, no opportunity was given to the petitioners to represent their cases and their detention was continued for a further period of six months. Thereafter, by its judgment in the case of P. L.Lakhanpal vs The Union of India. ; this Court overruled the decision in Sadhu Singh 's case and held that the function of review under r. 30A was quasi judicial and that in exercising it, the rules of natural justice had to be complied with. In view of this judgment the respondent held another review in April 1967, when notice was given to the petitioners and they were given a hearing. Thereafter an order was passed in each case on April 27, 1967, by which the State Goverment directed the continuance of the detention orders for a further period. In the meantime the present petitions under article 32 of the Constitution were filed on March 20, 1967 based on the judgment of this Court in Lakhanpal 's case. It was contended on behalf of the respondent State that as the review made in April 1967 was in accordance with the view taken in Lakhanpalls case, the continuance of the detention thereafter was justified; that the State Government had power to pass a fresh order of detention on the same facts and even if the present petitions were to be allowed, it should be made clear that the State Government had such power and that the decision of this Court in the case of Avtar Singh vs The State of Jammu and Kashmir (de cided on June 9, 1967), was not correct. HELD: (i) The writ petitions must be allowed and the petitioners released. In the Present cases the orders were passed in March 1965 and should have been reviewed after every six months in the manner explained in Lakhanpal 's case. That admittedly was not done upto February 1967, though a number of reviews were made in between. Consequently orders of detention passed in March 1965 fell after six months and there were no orders to continue thereafter. When 198 therefore the State Government ordered the continuance of detention orders upon the review on April 27, 1967, in accordance with the procedure indicated in Lakhanpal 's case, there were no orders to be continued because in between the reviews were not proper and the detention had become illegal. [201 C D). A. K Gopalan vs The Government of India, [1966] 2 S.C.R. 427, distinguished. Although r. 30A (9) only says that the Government shall decide whether the detention order should be continued or, cancelled, that does not mean that if the Government omits to make a review under r. 30A within six months the detention order will still continue and the detenu continue to be detained thereunder. The provision for review in r. 30A is designed, to protect the personal liberty of the citizen and is a mandatory provision; if it is not complied with and ' the Government omits to review the detention order within six months, the order must fall and the detenu must be released. [200 FG] (ii) A fresh order of detention can be passed on the same facts, provided it is not mala fide, if for any reason the previous order of detention or its continuance is not legal on account of some technical or other defect as in the present cases. There is nothing in the Defence of India Act and Rules which forbids the State Government from cancelling one order and passing another in its place. [2O2 C]. Ujagar Singh vs The State of Punjab., ; and Godavari Shamrao Parulekar vs State of Maharashtra and Ora., ; , referred to. The view taken in Avtar Singh vs The State of Jammu and Kashmir, in so far as it says that no fresh order can be passed even to correct any defect in an, order continuing detention under r. 30A(9) is not correct. [204 B].

ivil Appeal Nos. 3341 42/83 & S.L.P. No. 2693/84 . From the Judgment & Order dated 25 1 83 of the High Court of Punjab & Haryana in Regular Second Appeal No. 254/83 Hardev Singh and R.S. Sodhi for the Appellants. C.S. Vaidyanathan for the Appellants in C.A.No. 3342/83. Respondent in person. The Judgment of the Court was delivered by B.C. RAY, J. These two appeals by special leave one by the 75 Punjab State Electricity Board, Patiala and the other by Gurdial Singh & Ors. who were defendant respondent Nos. 3,4,6 and 7 in Civil Suit No. 293T/16 1 181/17 7 80 passed in R.S.A. No. 254/38 whereby the judgments and the decrees of the courts below were affirmed decreeing the plaintiff respondent 's suit declaring that the plaintiffrespondent be deemed to have been promoted from the date when his juniors as mentioned in the suit were promoted to the posts of Line Superintendents. The case of the plaintiff in short is that the plaintiff respondent Ravinder Kumar Sharma joined the service under the respondent No. 1, Punjab State Electricity Board as a Line Man on 25th December, 1969 and he worked as apprentice Line Man from 29.12.1969 to 28.12.1970 on a fixed salary of Rs. 140 per month. Thereafter he was allowed regular scale of pay of Rs. 110 330 since the date of his joining as a Line Man. The terms and conditions of the service of the LineMen as well as of the Line Superintendent are governed by the rules framed by the Punjab Government in exercise of its powers under article 309 of the Constitution of India which were termed as P.W.D. (Electricity Branch) Provisional Class III (Subordinate posts) Rules 1952. Subsequently the State Electricity Board came into being and the Electricity De partment came under the administration of the State Elec tricity Board. The Plaintiff has stated in the plaint that as a Line Man he had been performing his duties efficiently and hon estly and there was never any complaint against his work. His work and conduct had always been appreciated by his superiors from time to time. He possesses the following qualifications: 1. B.A. 2. I.T.I. (in the trade of Electrician 2 year 's duration). National Apprentice Certificate in the trade of Line Man (3 year 's duration). All the Line Men under the defendant No. 1, that is, Punjab State Electricity Board are either diploma holders or I.T.I. trained or non diploma holders and they form and constitute one common cadre known as Line Man and in the same scale of Rs. 110 330. The seniority list of all these Line Men is common and joint. It has been further alleged that defendant No. 1 had been promoting officials from Line 76 Men to the Line Superintendent on a pick and choose basis in consideration of the qualifications by fixing a quota be tween the diploma holders and non diploma holders and this has resulted in arbitrary discrimination between the diploma holders and non diploma holders Line Men thereby adversely affecting the promotional prospect of the non diploma hold ers Line Men. It has been further stated that this policy of the defendant No. 1 was set aside by the Punjab and Haryana High Court in L.P. No. 618, 619 of 1975 fixing the quota between diploma holders and non diploma holders Line Super intendents by orders dated 12.1.1965 and 27.6.1974. Though the minimum qualification for promotion of Line Man to Line Superintendent is however matriculation. The plaintiff also stated that by order dated 12.7. 1977 the respondent No. 1 promoted Gurdial Singh whose name appeared at section No. 1451 in the common seniority list and also the defendant Jaswant Singh whose name appeared at section No. 1546 in the said list as well as Ramesh Kumar standing at section No. 2309 in the said seniority list to the post of Line Superintendent even though the plaintiffs position in the seniority list was at section No. 995 and he was senior to these officials. Thus the plaintiff was passed over while his juniors were promoted. This policy of pick and choose, it has been stated, in promoting the officials is wholly illegal and discriminato ry. It has been further pleaded that by office order No. 899 dated 17.8.1977 the defendant No. 2, that is, the Chief Engineer of the Electricity Board further promoted Sudesh Kumar and Virender Kumar whose name stand at section No. 1877 and 2279 in the joint seniority list as Line Superintendent from the Line Man. The petitioner, therefore, pleaded that the action of defendants Nos. 1 and 2 in fixing the quota be tween diploma holders and non diploma holders Line Men for the purpose of promotion to the post of Line Superintendent and promoting the defendants 3 to 7 to the posts of Line Superintendent from Line Man is wholly illegal, unconstitu tional and arbitrary. The plaintiff, therefore, prayed for a decree declaring that the orders dated 12.7.1977. and 17.8.1977 promoting the defendants 3 to 7 are illegal, discriminatory and null and void as it arbitrarily affects the rights of the plaintiff who is senior to them in not being promoted to the cadre of Line Superintendent. The plaintiff also prayed for a direction that he be promoted to the post of Line Superintendent from the date defendant Nos. 3 to 7 were promoted to the said post. The defendant Nos. 1 and 2 contested the claim of the plaintiff by filing written statement stating that the terms and conditions of service of Line Men and Line Superintend ent are governed by the rules framed by the Punjab State Government under article 309 of the 77 Constitution and are termed as P.W.D. (Electricity Branch) Provisional Service Class III (Subordinate posts) Rule 1952. It has been further stated that the State Electricity Board by office order dated 14.5.1970 prescribed a quota of 5% for diploma holders Line Men for promotion to the post of Line Superintendent This quota of diploma holders Line Men was increased to 20% by the Board by order dated 2.7.1973. On 9.5.1974 the quota of diploma holders Line Men for promotion to the Line Superintendent was further increased to 33% whereas the quota for promotion of non diploma holders Line Men to the post of Line Superintendent was fixed at 33%. It has been stated that according to this quota the defendant Nos. 3 to 7 have been promoted and the fixation of quota on the basis of educational qualification cannot be questioned as arbitrary or discriminatory. After heating both the parties the Subordinate Judge, 1st Class, Patiala, held that the plaintiff was entitled to promotion to the post of Line Superintendent and the orders dated 12.7.1977 and 17.7.1977 whereby the defendant Nos. 3 to 7 were promoted even though they were junior to the plaintiff are illegal and in violation of the rights of the plaintiff. The suit was decreed and the plaintiff was de clared to have been promoted from the date when his juniors mentioned in the plaint were promoted to the post of Line Superintendent. Against this judgment and decree the Punjab State Elec tricity Board, Patiala filed an appeal being C.A. No. 4368 of 1982. The Additional District, Judge, Patiala after heating the parties dismissed the appeal with costs holding that there was no reasonable nexus by fixing quota for promoting diploma holders Line Men to the post of Line Superintendent even though the non diploma holder as well as the diploma holders formed the joint cadre of Line Men for promotion to the post of Line Superintendent. The judgment of the trial court was affirmed and it was also held that the appeal was not competent inasmuch as there was no reso lution of the board authorising the filing of the appeal. The cross objection filed by the plaintiff respondent was allowed. Against this judgment and decree the defendant Nos. I and 2 preferred an appeal being R.S.A. 254 of 1983. The said appeal was dismissed by the High Court of Punjab and Haryana and the judgment and decrees of the court below were af firmed. It is against this judgment and decree the aforesaid two appeals on special leave petition have been filed in this Court. 78 The only issue raised in this appeal is whether the defend ant No. 1, that is, the Punjab State Electricity Board is competent to discriminate between diploma holders and non diploma holders Line Men forming the common cadre of Line Men having a common seniority list in promoting these Line Men on the basis of quota fixed by the order of the State Electricity Board even though the requisite qualification for promotion for Line Man to the post of Line Superintend ent is either the holding of diploma or certificate for electrical engineering from a recognised institute or the non diploma holders having passed one and half year 's course in the trade of Electrician/Line Man/Wire Man from recog nised Industrial Training Institute and are matriculates and have worked for four years as Line Man continuously and immediately before promotion, as has been provided by the office order No. 97/ENG/BET/G 33 dated 22.10.1968 the rele vant excerpt of which is quoted herein below: "Far Direct Recruitment: a) Possess 3 years, certificate or diploma course in Electrical Engineering from any recognised Institute, or a certificate of having passed the N. 'C.C. Test conducted by the State Board of Technical Education/All India Council for Technical Education. b) Have passed action of the Institution of Engineering (India) Exam. with Elementary Electrical Engineering as the optional paper. For Pormotion c) (i) Have passed 11/2 years course in the Electrical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Institutes and are matric ulates and have worked for 4 years as a Line Man continuously and immediately before promo tion. (ii) Have passed 11/2 years course in the Electrical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Institutes and are non matriculates but are capable of preparing estimates, writing up measurement books accu rately, keeping store accounts etc. and have worked for 4 years as a Line Man continuously and immediately before promotion. 79 (iii) Persons holding diploma in Electrical Engineering of 3 to 4 years duration recruited as Line Man against the reservation of 60% fixed for recruitment of persons holding certificate of 11/2 years course in the Elec trical Trades of Electrician/Line Man/Wire Man from recognised Industrial Training Insti tutes, have worked as Lint Man for 3 years continuously and immediately before promotion. On promotion as Line Superintendent they will be given weightage of 2 years ' service as compared to non diploma holders, at the time of fixation of their seniority and pay in accordance with the instructions contained in Board 's Memo No. 88774/84/BET/(33)L dated 29.12.1967. D (i) Matriculates Line Man having a total continuous service of 9 years as at A.L.M. and Line Man out of which they should have worked as Line Man for 4 years continuously and immediately before promotion '. (ii) Non matriculates Line Man having a total continuous service of 11 years as A.L.M. and Line Man out of which they should have worked as Line Man for four years, continuously and immediately before promotion, provided they are capable of preparing estimates, writing up measurement books accurately keeping store accounts and in addition are conversant with Consumer Accounts or possess a special experi ence for transmission line work. The State Electricity Board by its order dated 14.5.1970 introduced the following quota for promotion to the cadre of Line Superintendents: 1. Direct recruitment from the open market 62% 2. Diploma holders Line Men 5% 3. Line Men non diploma holders 33%. This quota of promotion for diploma holders Line Man to the pest of Line Superintendent was further increased by office order No. 244 dated 2.7.1975 by fixing the quota fox promo tion of diploma holders Line Men already in Service of the Board from 5% to 20%. Again by office order No. 78 dated 9.6.1974 the State Electricity Board further increased the quota of promotion of diploma holders Line Man already in the service of the Board from 20% to 33%. 80 There is no dispute, rather it is not controverted that the position of the plaintiff respondent in the joint sen iority list of Line Men in the scale of Rs. 110 330 of the Punjab State Electricity Board from 1.6.1967 to 31.8.1974 which has been filed as additional document by the Punjab State Electricity Board in C.A. No. 3341 of 1983 that the plaintiff respondent 's name was mentioned at section No. 995 whereas names of defendant Nos. 3 to 7 appear in the said list in section Nos. 1451, 1546, 2309, 1877 and 2279 respective ly. Therefore all the defendant Nos. 3 to 7 are undoubtedly junior to the plaintiff respondent as LineMen in the joint seniority List of Line Men comprising of both diploma hold ers and non diploma holders Line Men in the same cadre. It iS also clear and evident from the office Order No. 97 dated 22.10.1968 that the qualification for promotion to the post of Line Superintendent from Line Men is either holding cer tificate or diploma in electrical engineering from any recognised institute or having passed 1 1/2 years Course in the electrical trade of Electrician/Line Man/WireMan from reCognised Industrial Training Institute and are matricu lates and have worked as Line Man for four years continuous ly and immediately before the promotion. The petitioner who is an Arts Graduate and have I.T.I. Certificate (in the trade of electrician 2 years ' duration) and also have Na tional Apprentice Certificate in the trade of Line Man 3 years ' duration is eligible for promotion to the post of Line Superintendent as he has fulfilled all the requisite qualifications. There is no gain saying that all the Line Men either diploma holders or non diploma holders are per forming the same kind of work and duties and they belong to the same cadre having a common/joint seniority list for promotion to the post of Line Superintendent. The orders dated 12.7.1977 being order No. 73 promoting defendant Nos. 3, 4 and 5 as well as office order No. 898 dated 17.8.1977 promoting defendant Nos. 6 and 7 on the basis of quota from diploma holders as fixed by the order of the State Electric ity Board dated 9.5.1974 is wholly arbitrary, illegal, discriminatory and violative of the equality clause Con tained in articles 14 and 16 of the Constitution of India inasmuch as it purports to promote defendant Nos. 3 to 7 who are admittedly junior to the respondent No. 1 in service as Line Man in the State Electricity Board. It has been rightly held by following the decision in Shujat Ali 's case ; at 480 that the promotion of defendant Nos. 3 to 7 who are admittedly junior to the plaintiffrespondent in the service as Line Man to the post of Line Superintendent are illegal, arbitrary and discriminatory and so bad. It is pertinent to refer to the observations of this Court in the said case which read as follows: 81 "But where graduates and non graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, consistently with the claim for equal opportu nity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over non graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engi neer, which, according to the quota is re served for graduate Supervisors, a non gradu ate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non graduate Supervisors. That would clearly amount to denial of equal opportunity to him." This observation apply with full force to the present case, and it has been rightly held by the High Court of Punjab and Haryana that the promotion of defendant Nos. 3 to 7 who are junior to the plaintiffrespondent from Line Man to the post of Line Superintendent is wholly bad and discrimi natory and directed that the petitioner be deemed to have been promoted to the post of Line Superintendent from the date the said defendants 3 to 7 had been promoted from Line Man to Line Superintendent In our considered opinion there is no infirmity in the judgment of the High Court affirming the judgment and decree of the courts below. and we agree with the reasonings and conclusions arrived at by the courts below. The two appeals on special leave are, therefore, dismissed with costs, quantified at Rs.5000 to be paid by the appellant of C.A. No. 3341 of 1983 to the re spondent No. 1. The Punjab State Electricity Board, Patiala also filed special leave petition (Civil) No. 2693 of 1984 against the judgment and order dated 14.2.1984 passed in Civil Revision No. 407 of 1984 by the High Court of Punjab and Haryana dismissing the Revision Petition. This Revision Petition was filed against the order rejecting the appellant 's applica tion for correction of the decree. As we have already dis missed the appeals there is no merit in this special leave petition and the same is accordingly dismissed A. P .J. Appeals & Petition dismissed.

Plaintiff respondent Ravinder Kumar Sharma joined serv ice as a Line Man under the respondent Electricity Board. The terms and conditions of the service of the Line Man as well as of the Line Superintendent were governed by the P.W.D. (Electricity Branch) Provisional Class III (Subordi nate posts) Rules 1952. The Line Man are either diploma holders or I.T.I. trained or non diploma holders and they form and constitute one common cadre known as Line Man and were in the same scale of pay. The seniority list of all the Line Man is common and joint. By order dated 12.7.1977, the respondent Board promoted Gutdial Singh, Jaswant Singh and Ramesh Kumar shown in the common seniority list at section Nos. 1451, 1546 and 2309 respectively, to the pest of Line Super intendent even though the plaintiff respondent 's position in the seniority list was at section No. 995 and he was senior to the said officials. By order dated 17.8.1977 the Chief Engineer of the respondent Electricity Board further promot ed Sudesh Kumar and Virender Kumar whose name stand at section No. 1877 and 2279 in the joint seniority list. The Plain tiff respondent filed a suit alleging that this policy of promotion from Line Man to Line Superintendent on a pick and choose basis by fixing a quota between the diploma holders and non diploma holders is wholly illegal, unconstitutional and arbitrary as it adversely affected the promotional prospect of the non diploma holders Line Men and prayed for a decree declaring that the orders dated 12.7.1977 and 73 17.8.1977 promoting the defendants 3 to 7 are illegal, discriminatory and null and void as it arbitrarily affects the rights of the plaintiff who is senior to them and that he be promoted to the post of Line Superintendent from the date defendant Nos. 3 to 7 were promoted. The defendant Nos. :1 and 2 contested the claim of the plaintiff contending that the terms and conditions of serv ice of Line Man and the Line Superintendent are governed by the P.W.D. (Electricity Branch) Provisional Service Class III (Subordinate Posts) Rules 1952 framed by the State Government under article 309 of the Constitution, that the Electricity Board by various orders prescribed quota for diploma holders Line Men for promotion to the post of Line Superintendent, that according to this quota the defendant Nos. 3 to 7 have been promoted and that the fixation of the quota on the basis of educational qualification cannot be questioned as arbitrary or discriminatory The Subordinate Judge First Class decreed the suit, holding that the plaintiff was entitled to promotion to the post of Line Superintendent and the orders dt.12.7.1977 and 17.8.1977 whereby the defendant Nos. 3 to 7 were promoted even though they were junior to the plaintiff are illegal and in violation of the rights of the plaintiff and, there fore, the plaintiff was declared to have been promoted from the date when his said juniors were promoted. The appeal filed by the State Electricity Board was dismissed by the Additional District Judge holding that there was no reasonable nexus by fixing quota for promoting diploma holders Line Men to the post of Line Superintendent even though the non diploma holders as well as the diploma holders formed the joint cadre of Line Man for promotion to the post of Line Superintendent The judgments and decrees of the Courts below were affirmed by the High Court. Dismissing the Appeals and the Special Leave Petition, HELD: 1. There is no dispute, rather it is not contro verted that in the joint seniority list of Line Men the plaintiff respondent 's name was mentioned at section No. 995 whereas names of defendant Nos. 3 to 7 appear in the said list at section Nos. 1451, 1546, 2309, 1877 and 2279 respective ly Therefore, all the defendant Nos. 3 to 7 are junior to the plaintiff respondent It is also clear and evident from the Office Order No. 97 dated 22.10.68 that the qualifica tion for promotion to the post of Line Superintendent from Line Man is either holding certificate or diploma in Elec trical Engineering from any recognised institute or 74 having passed 11/2 years course in the electrical trade of Electrician/ Line Man/Wire Man from recognised Industrial Training Institute and are matriculates and have worked as Line Man for four years continuously and immediately before the promotion. [80A C] 2. The plaintiff respondent who is an Arts Graduate and have I.T.I. Certificate (in the trade of electrician two years ' duration) and also have National Apprentice Certifi cate in the trade of Line Man 3 years ' duration is eligible for promotion to the post of Line Superintendent as he has fulfilled all the requisite qualifications. All the line men either diploma holders or non diploma holders are performing the same kind of work and duties and they belong to the same cadre having common/joint seniority list for promotion to the post of Line Superintendent. The Orders dated 12.7.1977 being Order No. 73 promoting defendant Nos. 3, 4 and 5 as well as Office Order No. 898 dated 37.8.77 promoting defend ant Nos. 6 and 7 on the basis of quota from diploma holders as fixed by the order of the State Electricity Board dated 9.5.74 is wholly arbitrary, illegal, discriminatory and violative of the equality clause contained in articles 14 and 16 of the Constitution in as much as it purports to promote defendant Nos. 3 to 7 who are admittedly junior to the plaintiff respondent in service as Line Man in the State Electricity Board. [80D G] Shujat Ali 's case ; at 480 followed. There is no infirmity in the judgment of the High Court affirming the judgment and decree of the Courts below.

Civil Appeal No. 1309 of 1986. From the Judgment and Order dated 8.8.1985 of the Punjab and Haryana High Court in Regular Second Appeal No. 307 of 1985. A.B. Rohtagi, Ranbir Singh Yadav and H.M. Singh for the Appellant. 75 A.G. Prasad and Mahabir Singh for the Respondents. The Judgment of the Court was delivered by RAY, J. This appeal on special leave is against the judgment and order passed by the High Court of Punjab & Haryana in Regular Second Appeal No. 307 of 1985 whereby the High Court upheld the order of termination of services of services of the appellant made on November 17, 1980 passed by the respondent No. 2, the Directer of Food and Supplies and Deputy Secretary to Government of Haryana, Chandigarh. The salient facts that gave rise to the instant appeal are as follows: The appellant we appointed as Sub Inspector, Food and Supplies in the Department of Food and Supplies by the Respondent No.2 by order dated April 13, 1975 on and hoc basis against the ex servicemen quota. As per the service rules the terms and conditions of the said appointment are as hereunder: "(i) The post is purely temporary. Your appointment is purely on ad hoc basis and shall not exceed six months. Your services are liable to be terminated at any time during this period without any notice and without assigning any reason. Your services are also liable to be terminated at any time without notice on arrival of regular candidates from the Haryana Subordinate Services Selection Board. " The appellant had been continuing in the said post of Sub Inspector without any break till November 17, 1980 i.e. the date of termination of his services. The appellant, however, was served with an order of suspension made by the Respondent No. 2 on April 15, 1980 in view of the criminal proceedings pending against the appellant u/s 420 of the Indian Penal Code during the pendency of which the order of termination was made on November 17, 1980. The said criminal proceeding being Criminal Case No. 1413 of 1981 was decided on October 21, 1981 wherein he has been acquitted of the said charge. The Additional Chief Judicial Magistrate, Narnual had found that: ". . Babu Ram accused was not present at the spot and he had no role to play in the distribution of the cement. The Appellant could not point out even a single factor from the file by which the participation of this accused can be said to 76 have been proved by the prosecution. As such, accused, Babu Ram cannot be held guilty of the offence charged and he is acquitted of the same. " The plaintiff appellant immediately on receiving the order of termination after giving the requisite notice brought an action being Civil Suit No.453 of 1981 in the court of Senior Sub Judge, Narnual praying for a declaration to the effect that the order of suspension dated 15.4.1980 and the order of termination dated 17.11.1980 passed by the respondent No.2 were illegal, wrong, arbitrary and without jurisdiction and the appellant is entitled to reinstatement with effect from the date of his suspension and so further entitled to be regularised and to all the benefits of the service. It had been stated in the pleadings of the appellant that a notification dated 1st January, 1980 issued by the Chief Secretary to the Government of Haryana addressed to all the Head of the Departments vide memo No. G.S.R./Const./ article 309/80 stating that such ad hoc employees who hold the class III posts for a minimum period of two years on 31.12.1979 are to be regularised if they fulfill the following conditions: (a) Only such ad hoc employees as have completed a minimum of two years service on 31.12.1979 should be made regular. However, break in service rendered on ad hoc basis upto a period of one month may be condoned but break accruing because the concerned employee had left service of his own volition or where the ad hoc appointment was against a post/vacancy for which no regular recruitment was required/intended to be made, i.e. leave arrangements or filling up of other short time vacancies, may not be condoned. (b) Only such ad hoc employees as have been recruited through the Employment Exchange should be made regular. (c) The work and conduct of the ad hoc employees proposed to be regularised should be of an overall good category. The plaintiff appellant pleaded that he having put in the minimum period of two years of service on 31.12.1979 became entitled to have his service regularised in view of the said Notification. He further pleaded that the alleged order of termination was in fact an order of dismissal and so it amounts to punishment and the same being penal in nature is null and void because it contravened the provisions of Constitution of India. The Senior Sub Judge, Narnaul after hearing the 77 parties held that as the petitioner appellant was acquitted of the said offence, the authorities should have revoked the suspension order and have paid the pay for the period for which the appellant remained under suspension. The Court further held that the appellant will be entitled to all the benefits of his service. Against this judgement and decree, an appeal was filed being C.A. No. 129 of 1983 in the Court of Addl. District Judge, Narnaul by the State. The Addl. District Judge by his judgement dated 18.10.1984 affirmed the judgement and decree of the learned Sub Judge holding that no enquiry was conducted before termination of the service of the appellant. The Addl. District Judge also held that: ". the plaintiff had completed two years of service and according to executive instructions his services were bound to be regularised. Reasonable opportunity to defend was not given to the plaintiff before termination of his services. Order of termination of services was merely a camouflage for an order of dismissal for misconduct. He was still under suspension when he was terminated. All these facts lead only to one conclusion that the impugned order of termination of the services of the plaintiff is bad in law . " Against this judgement and order R.S.A. No. 307 of 1985 was filed by the said respondents in the High Court of Punjab and Haryana at Chandigarh. The High Curt allowed the appeal on setting aside the judgement and decree of the courts below holding that the appellant was not entitled to be regularised automatically unless he fulfilled all the conditions given in the Notification. It was further held that when the case of the appellant came up for regularisation the Department found that the appellant 's work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised. It was further held that since the appellant was ad hoc employee therefore, the Department instead of waiting for the result of the criminal proceedings thought it fit under the circumstances to dispense with the services of the appellant in accordance with the terms of his appointment. This judgement is under challenge in this appeal. The pivotal question that poses itself for consideration before this Court is firstly whether during the period of suspension in view of the criminal proceeding which ultimately ended with the acquittal, an order of termi 78 nation can be made against the appellant by the respondent No.2 terminating his ad hoc services without reinstating him as he was acquitted from the charge u/s 420 I.P.C. and secondly whether the impugned order of termination from his service can be made straight away without reinstating him in the service after he earned acquittal in the criminal case and thereafter without initiating any proceeding for termination of his service as the impugned order of termination was of penal nature having civil consequences. It has also to be considered in this connection that the respondent No.2 has also not considered the case of the appellant for regularisation of his services even though he had completed two years of service as on 31.12.1979 fulfilling all the requisite terms and conditions mentioned in the said Notification. The order of suspension made by the respondent No.2 is admittedly on the sole ground that criminal proceeding was pending against the appellant. The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceeding which ultimately ended with the acquittal of the appellant. It is the settled position in law that the appellant who was suspended on the ground of pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service. His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment. Furthermore as the appellant whose name was sent through Employment Exchange and who was appointed and has completed two years service on 31.12.1979 is entitled to be considered for regularisation in the post Sub Inspector, Food and Supplies. The High Court had observed that: ". . In these circumstances, when his case came up for regularisation, the Department found that the plaintiff 's work and conduct was not of the required standard so as to justify his regularisation and consequently his services were not regularised. " This finding of the High Court is totally baseless in as much as the counsel for the said respondent could not produce any order or documentary evidence to show that the respondents considered the case of the appellant for the purpose of regularisation in accordance with the Notification dated 1st January, 1980. As such the finding of the High Court is wholly bad and illegal. The other finding of the High Court that the acquittal of the appellant by the criminal court was of no consequence as his services were terminated before the order of acquittal was made because the appellant was no more in service is also 79 against the well settled legal position. It has also to be borne in mind that under the Notification dated 1st January, 1980 issued by the Government, the appellant having fulfilled the condition of two years of service is entitled to be considered by the Government for regularisation of his service in accordance with the said executive instructions issued by the Government. As we have said herein before that there is nothing on record to show that the Government has ever considered the case of the appellant for regularisation of his service in the light of the instructions contained in the said Notification dated 1st January, 1980, the impugned order of termination of service made by the Government is illegal and arbitrary and so it is liable to be quashed and set aside. Moreover, from the sequences of facts of his case the inference is irresistible that the impugned order of termination of the service of the appellant is of penal nature having civil consequence. It is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. Reference may be made in this connection to the decision of this Court in Smt. Rajinder Kaur vs State of Punjab and Another, in which one of us is a party. It has been held 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, was really made on the basis of the misconduct as found on enquiry into the allegation behind her back. Though couched in innocuous terms, the order was merely a camouflage for an order of dismissal from service on the ground of misconduct. This order had 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 f dismissal from service 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 witness examined. The order was thus, made in total contravention of the provisions of Article 311(2) and was therefore, liable to be quashed and set aside. " This case relied on the observations made by this Court in the case of Anoop Jaiswal vs Government of India, ; 80 wherein it has been observed that: ". Where the form of 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 not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee". Similar observation has been made by this Court in the case of Hardeep Singh vs State of Haryana and Ors. , It has been held in this case as under: "In the instant case, it is clear and evident from the averments made in paragraph 3, sub para (i) to (iii) and paragraph (v) of the counter affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of petitioner. There is no doubt the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24 (Ix)(b) of the Punjab Police Rules, 1984. " In the premises aforesaid, we are constrained to hold that the judgement rendered by the High Court is wholly illegal and unwarranted and as such we quash and set aside the same and affirm the judgement of the courts below. We direct that the appellant be reinstated in the service immediately and be paid all his emoluments i.e. pay and allowances from the date of the order of his suspension i.e. 15.4.1980 till the date of reinstatement into service minus the suspension allowance that had been received by the appellant during the period of his suspension (if any). The respondents are at liberty to consider the case of the appellant for regularisation in the light of the norms laid down in the executive instructions issued on 1st January,1980 by Notification No. G.S.R./Const./Art. 309/80. The appeal is allowed. There will be no order as to costs in the facts the circumstances of the case. Y.Lal Appeal allowed.

The appellant was appointed an Sub Inspector, food & Supplies by respondent No. 2 on 13.4.1975 on ad hoc basis against service man quota; the post being purely temporary liable to be terminated without notice and without assigning any reasons or on arrival of a regular candidate. The appellant continued in service on that post till November 17, 1980, when his services were terminated. Prior to the termination of his services he was placed under suspension on April 15, 1980 in view of the criminal proceedings under Section 420, IPC pending against him and before the culmination of criminal proceedings, his services were terminated by order dated November 17, 1980, as aforesaid. Criminal case against the appellant was decided on October 21, 1981 wherein he was acquitted of the charge. The appellant on receiving the order of termination of his services filed Civil Suit 453 of 1981 in the court of Senior Sub Judge, narnaul praying for a declaration that the orders of suspension as also termination were illegal, wrong, arbitrary and without jurisdiction and that the appellant was entitled to reinstatement and regularisation of his service under the Government notification dated 1.1.1980 issued by the Chief Secretary to the Government of Haryana authorising regularisation of such ad hoc employees who held the Class III posts for a minimum period of two years. According to the appellant his case was covered by the said notification and as such he was entitled to all the benefits of service. The Senior Sub Judge held that as the appellant was acquitted of the offence, the authorities should have revoked the suspension order and have paid the pay for the period for which the appellant remained under suspension and thus allowed to the appellant all the benefits. An appeal was taken by the respondents to the Addl. District Judge who affirmed the order of the trial court holding that no enquiry was conducted before termination of the service of the appellant. Against the order of the Addl. District Judge, the respondents preferred an appeal 74 before the High Court and the High Court allowed the appeal holding that the appellant was not entitled to be regularised automatically unless he fulfilled all the conditions given in the notification. It was also held that the case of the appellant was considered for regularisation by the Department but the same was not found suitable; the services of the appellant were terminated in accordance with the terms of his appointment. The appellant has filed this appeal against that order in this court after obtaining special leave. Allowing the appeal, this Court, HELD: The order of suspension made by the respondent No. 2 is admittedly on the sole ground that criminal proceeding was pending against the appellant. The order of termination had been made illegally during the pendency of the order of suspension and also during the pendency of the criminal proceeding which ultimately ended with the acquittal of the appellant. The settle position in law is that the appellant who was suspended on the ground of pendency of criminal proceeding against him, on being acquitted of the criminal charge is entitled to be reinstated in service. His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment. [78C E] As the appellant whose name was sent through Employment Exchange and who was appointed and has completed two years service on 31.12.1979, he is entitled to be considered for regularisation in the post of Sub Inspector, Food and Supplies. [78E] Smt. Rajinder Kaur vs State of Punjab and Anr. , ; ; Anoop Jaiswal vs Government of India, ; ; Hardeep Singh vs State of Haryana and Ors.,[1987] 4 S.L.R. 576, referred to.

217 of 1955. Under article 32 of the Constitution of India for the enforcement of Fundamental Rights. N. C. Chatterjee, (Vir Sen Sawhney and Ganpat Rai, with him), for the petitioners. Lal Narain Sinha, (Bajrang Sahai and section P. Verma, with him), for respondent No. 2. 1955. October 28. The Judgment of the Court was delivered by IMAM J. The petitioners have filed this application under article 32 of the Constitution claiming that the buildings and lands as set out in the Schedule annexed to the petition and marked "A" (hereinafter referred to as the disputed properties) did not vest in the State of Bihar under the provisions of the 990 Bihar Land Reforms Act 1950 (hereinafter referred to as the Act). Petitioner No. I in his individual capacity was at one time the owner, of the disputed properties which lie within Touzi No. 28 of the Collectorate of Hazaribagh. On the 29th of December, 1947 petitioner No. I as owner leased out the disputed properties to a Company known as Mineral Development Ltd. (hereinafter referred to as the Company). The Company took possession of the disputed properties and has been paying rent. On the 7th of April, 1949 petitioner No. I in his individual capacity executed a deed of settlement whereby he transferred the disputed properties to three trustees, namely, himself and petitioners 2 and 3. The Company has been paying rent to the trustees since then. The Act came into force on the 25th of September, 1950. On the 3rd of November, 1951 the State Government issued a notification under section 3(1) of the Act declaring that the estate of petitioner No. I in his individual capacity specified therein had passed to and become vested in the State. On the 26th of October, 1953 a notice under section 4(h) of the Act was issued by the Collector to the Company, and on the 4th of March, 1954 the State Government issued a notification under section 3(1) of the Act purporting to vest in the State the properties covered by the above mentioned deed of settlement and another deed of settlement with which we are ' not concerned. The Company instituted a title suit No. 33 of 1951 against the State of Bihar in the Court of the Subordinate Judge, Hazaribagh basing its claim on a mining lease executed by petitioner No. I in his individual capacity the genuineness of which was challenged by the State. Petitioner No. I in his individual capacity was made a party to this suit. The Company also instituted a title suit No. 9 of 1954 against the State of Bihar to which petitioner No. I in his individual capacity was made a party challenging the legality of the issue of notice dated 26 10 1953 under section 4(h) of the Act. On the 11th of November, 1954 the State of Bihar filed title suit No, 53 of 1954 to which the Company, 991 petitioner No. I in his individual capacity, the three trustees and others were made parties. By this suit the State of Bihar challenged the genuineness of the lease in favour of the Company and the deed of settlement in favour of the trustees. The real question for determination is, what vested in the State on the publication of the notification under section 3 and by virtue of the provisions of section 4(a) of the Act? According to Mr. Chatterjee the disputed properties did not vest in the State, whatever else may have. Having regard to the definition of "estate" in the Act, if anything vested in the State on the publication of a notification it was the land comprised in the notified estate. Although the disputed properties stood on the land in the notified estate, they did not vest in the State, because the definition of "estate" speaks of land only and not of any building on it. The notification under section 3 was a mere declaration and actual vesting took place under section 4(a). On the date of vesting the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. 1, who had parted with his right, title, and interest therein long before the Act was enacted and the publication of the notification under section: 3. Mr. Sinha on behalf of the State of Bihar, on the other hand, contended that on a perusal of the provi sions of sections 4, 5 and 7 of the Act, it would appear that the Act contemplated something more than the ' land in an estate vesting in the State and the disputed ' properties could and did vest in the State on the publication of the notification under section 3. In our opinion, it is of little consequence in the present case whether the notified estate vested in the State by reason of the publication of the notification under section 3 or by virtue of the provisions of section 4 of the Act, because in either case a vesting did take place. Although the word land is used in the definition of "estate", the provisions of sections 4, 5 and 7 show the necessary intention to include something more than the land when an estate vests in the State. Under section 4(a) it is not only the 992 estate but also buildings of a certain description and other things which vest in the State absolutely on the publication of a notification under section 3. Under sections 5 and 7 the buildings mentioned therein also vest in the State, because the buildings in question are deemed to be settled by the State with the intermediary in possession. This could only be on the supposition that these buildings vested in the State and the person in possession held the same as settlee under the State. In the present case on the date of the publication of the notification under section 3 the disputed properties were said to be in the possession of the Company as lessee and the petitioner No. I had no right, title or interest therein as he had transferred his lessor 's reversion to trustees by a deed of settlement. We may assume, therefore, that on the date of publication of the notification the disputed properties were not used primarily as office or cutchery for the collection of rent of the notified estate of petitioner No. 1 It. becomes, therefore, necessary to interpret the word "used" occurring in section 4(a). It is to be noticed that this clause of section 4 does not expressly state that a building used primarily as office or cutchery for the collection of rent must be so used at the date of the publication of the notification. In this clause the words "used primarily as office or cutchery for the collection of rent of such estate" must be read in the light. of the provisions of section 4(h) where similar words are employed. Under section 4(h) the Collector has the power to make inquiries in respect of any transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate, if the transfer had been made at any time after the first day of January, 1946. If on due inquiry the Collector is satisfied that such transfer was made with the object of defeating he provisions of the Act or causing loss to the State or obtaining higher compensation, then the Collector may, after giving notice to the parties concerned and hearing them and with the previous sanction of she State Government, annul the transfer and dis 993 possess the person claiming under it. These provisions clearly indicate that if any building was used primarily as office or cutchery for the collection of rent and such building had been transferred after the first day of January, 1946, the transfer could be annulled if the circumstances mentioned in section 4(h) had been established. That is to say, under. ' these provisions the use to which the building was put previous to its transfer after the first day of January, 1946 and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946. To hold otherwise would be to make the provisions of section 4(h) meaningless. When a proprietor transfers any such building ' it necessarily follows that the building thereafter was not used by him as office or cutchery for the collection of rent of his estate. If the transfer was made before the first day of January, 1946 the provisions of section 4(h) would not apply and such a transfer would not be liable to be annulled and the building so transferred would not vest in the State on the date of the publication of the notification covering the estate on which such building stands. If, on the other hand, this transfer was made after the first day of January, 1946, a building comprised in a notified estate, which was used immediately previous to the date of the transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under section 4(h) and it would vest absolutely in the State on the publication of the notification and the provisions of section 4(a) must be read accordingly. It would be unreasonable to construe the provisions of section 4(a) in the way suggested by Mr. Chatterjee. The scheme of the Act has to be borne in mind and the provisions of sections 4(a) and 4(h) have to be read together. The petitioners had not asserted in their petition that the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. I before the first of January, 1946 or before the lease in favour of the Company. On behalf 994 of the State, on affidavit, it has been stated that the disputed properties were all along used as cutchery before the creation of the lease and that they were not being used in connection with any mining operation. In our opinion, if as a result of the inquiry under section 4(h) the transfer of the disputed properties by the petitioner No. I is annulled the disputed properties must be regarded as having vested in the State, because they were used as office or cutchery for the collection of rent previous to the transfers made by the petitioner No. 1. It was next contended that section 4(h) is ultra vires the Constitution, because it imposed an unreasonable restriction on the fundamental right of the petitioners to realize rent from the Company, as the transfer in its favour was imperilled by the notice issued to it under section 4(h). No appeal or review was provided in the Act against the order of the Collector issuing notice or an order of annulment made by him. The Collector was left with absolute power to annul a transfer and to dispossess a person in possession thereunder. Section 4(b), however, does direct the Collector to give reasonable notice to the parties concerned and to bear them. Such annulment or dispossession which he may order, must be with the previous sanction of the State Government and he is compelled to do so on terms which may appear to him fair and equitable. The power is, therefore, not quite so absolute or arbitrary as suggested. Assuming, however, that the Collector has very wide powers, it is to be remembered that section 4(h) is a part of the law of acquisition of estates as enacted by the Act and is an integral part of the machinery by which acquisition of an estate takes place. The Act is a valid law of acquisition and its whole purpose may be defeated unless there was some such provision as contained in section 4(b). The Act being a law for acquisition of estates the question of it or section 4(h) of it imposing any unreasonable restriction on the fundamental rights of the petitioners does not arise. In any event the Act including sect ton 4(h) is protected by article 31 A of the Constitution. The petition is accordingly dismissed with costs.

The proviso to section 3(1)(vii) of the Kerala Land Reforms Act, 1964. provided that nothing in clauses (i) to (vii) of section 3(1) shall affect the rights of persons who are entitled to the fixity of tenure immediately before 21 January 1961 under any law then in force. The law prevailing immediate ly before 21 January 1961, was the Malabar Tenancy Act, 1929. Under section 23 of that Act a tenant would be liable to be evicted from his holding at the instance of h/s landlord if he intentionally committed acts of waste or defaulted in the payment of rent for more than 3 months. The proviso was amended by 1969 Amendment Act which came into force on January 1; 1970. The amending Act also. inserted in the Act new Ss. 50A. 52 and 73. Section 50A provided that a tenant entitled to fixity of tenure shall have the right to use his holding in any manner he thinks fit. Section 52 pro vided that a cultivating tenant shall have a right to cut .trees and section 73 is to the effect that the maximum amount that could be claimed by way of arrears of rent is only for 3 years. Section 108(2) was also amended and it provided that any decree passed before the commencement of the section for the dispossession of a person from the land in his possession may on the application. of such person be reopened and disposed of in accordance with the provi sions of the 1964 Act as amended by the 1969 Act provided dispossession has not been affected. Section 125(3) provid ed that if in any suit or proceeding questions regarding the rights of a tenant arose, the civil court shall stay such proceedings and refer the question to the Land Tribunal having jurisdiction over the area. Section 132(3) provided that any decree pursuant to which eviction has not been effected may, on the application of the tenant or the land lord be reopened and the matter disposed of in accordance with the provisions of the Act. The respondent owned about 550 acres out of which more than half was Coffee planted area. He leased the plantation and the remaining unplanted area to the appellant in 1950 for 12 years. Clause (4) of the lease provided that if the rent was in arrears for 30 days after it became due it was lawful for the lessor to forfeit the lease and re enter on the land. Alleging_ that since 1953 the 'appellant had neglected to pay the rent, the respondent filed the suit claiming possession of the land, arrears of rent, and dam ages for waste. The trial court decreed the suit in. 1966 and the decree was confirmed by the 'High Court with the enhanced damages in February 1969. In appeal to this Court the appellant contended that he was entitled to fixity of tenure; that the unplanted area was not a plantation and 'so he was entitled to fixity of tenure therein; ,hat the pro ceedings were to be disposed of in accordance with the provisions of the 1964 Act as amended by 1969 Amendment Act. that is. that all questions regarding rights of tenants and landlords could be decided only by the Land Tribunal; and that the damages were awarded contrary to the 'provisions of the Act as amended. He, therefore. filed an application praying for reopening of the decree passed by the High Court and also contended that in view of the amendments in 1971 the appeal is to be disposed of in accordance with the provisions of the Act, as amended in 1969 and 1971. Dismissing the appeal to this COurt,. HELD: In the present case, the decree was passed by the trial court as ' well as by the High Court after the 1964 Act came into force but before the, 1027 1969 amendment. The decree was correctly passed in ac cordance with the provisions of the 1964 Act, since the amendments were prospective and not retrospective. [1036 E F] .rm60 (1) A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied. In that connection the former state of law is to be considered and also the legislative changes contemplated by the statute. Words not requiring retrospective operation so as to affect an existing statutory provision prejudicially ought not to be so construed. It is a general rule that when the legislature alters the rights of the parties by taking away or conferring any right of action, its enactments.unless in express terms they apply to pending actions, do not affect them. If however, a statute deals merely with procedure in an action and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future. [1033 E G] Gardner vs Lucas (1878) 3 Appeals Cases 582; Moon vs Durden (1948) 2 Exch.22 and Smithies vs National Union of Operative Plasterers , referred to. (2) The entire land leased out does not come within the definition of plantation, because. the extent of coffee cultivated area has been found to have dwindled to about 100 acres out of the total extent of about 550 acres by reason of the acts of waste committed by the appellant and ceased to be a plantation even before 1 January 1970. The appel lant, however, is disentitled to take advantage of his own wrongs so as to claim statutory benefits which were also not available to him. [1033 A B, E G] (3) The appellant had been found to be habitual defaulter since 1952 in the payment of rent and to be guilty of wilful acts of waste before and after the institution of the suit. He had denuded the entire tree growth in morethan one half of the area and destroyed more than one half of the coffee planted area, and the remaining part was in an utterly neglected condition. Therefore. under section 23. Malabar Tenan cy Act, the appellant had no fixity of tenure on 21 Janu ary 1961, and hence was not entitled to the benefit of proviso to section 3(1) either under the 1964 Act or the 1969 Act. [1032 G H, 1034.B D)] (4) The respondent was a Government company. Under section 3(1)(i) of the 1964 Act, leases of lands owned by Government companies are exempted from the provisions of Chap. Section 13, which is in Chap. II and which provides for fixity of tenure cannot therefore be invoiced. by the appel lant for claiming 'fixity, of tenure under the 1964 Act. [1033 C D] (5) The appellant is disentitled from invoking sections 50A, 52 and 73 of the 1964 Act as amended in 1969 because, Chap ter 1I of the 1964 Act is not applicable to the lease since the respondent lessor iS a Government Company. More over, these sections came into effect on 1st January 1970 and were not retrospective, but were. prospective in. opera tion. [1032 A D, 1033 H, 1036 A B] (6) Sect.ion 108(3) of the Act as amended in 1971 will permit the opening of the decree only if a person has claims to a right benefit or remedy which has been conferred on him under the Act. In the present case neither under the 1964 Act nor under the 1969 Amendment the. appellant can claim the benefit of section 50A because he wilfully misused the hold ing and caused acts of waste causing loss to the lessor and damage and destruction to the holding. [1033 H, 1034 A B] (7) Section 125(1) of the Act which came into force on 1 January 1970, creates bar against the civil court deciding questions required to be settled by the Land Board. This provision is prospective. and the proviso expressly states that the section shall not apply to proceedings pending in any court at the commencement of the 1969 amending Act. It, therefore, follows that the proceedings in the present case which were pending at the commencement of the 1969 Amendment Act are saved from the operation of section 125(1). Section 125(3) is equally prospective. It will be applied with regard to the provisions contained in section 125(1) of the Act. Matters which will be within the mischief of section 125(1) are matters which will arise in suits or proceedings initiated or originated after the commencement of the Act. It is unsound to 1028 suggest that pending proceedings which are exempt from the application of section 125(1) will yet fall within that sub section by reference to section 125(3). Therefore, the provisions contained in section 125 are not applicable in the present case. [1034 G H, 1035 A E] Anantha Narayana Iyer vs Pran , over ruled.

Appeal No. 874 of 1962. Appeal from the judgment and order dated January 15, 1962, of the Madras High Court in Writ Appeal No. 82 of 1959. A. V. Viswanatha Sastri, G. B. Pai and B. N. Ghosh, for the appellant. 267 B. R. Dolia, M. Rajagopalan and K. R. Chaudhuri, for the respondents. August 2, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The principal question which arises in this appeal relates to the true scope and effect of the provisions contained in section 73 of the (hereinafter called the Act). The appellant, the Buckingham & Carnatic Co. Ltd., is a company registered under the Indian Companies Act and its registered office is at Madras. It has a Textile Mill in Madras City which employs 14,000 workmen. On January 10, 1957, the respondent Venkatiah whose case is sponsored by the respondent Union, the Madras Labour Union, had gone on leave for six days. Taking into account the intervening holidays, the said leave expired on January18, 1957. He, however did not join duty on the 19th January as he should have, but remained absent without leave without sending to the appellant any communication for extending his leave. On the 11th March 1957 he sent a letter to the appellant stating that sometime after reaching his village near Kanigiri he suffered from fever and dysentery and was treated by the Civil Assistant Surgeon, Kanigiri. This letter was accompanied by a certificate issued by the said Civil Assistant Surgeon. In this certificate it was stated that Venkatiah suffered from chronic malaria and dysentery from January 15 to, March 7, 1957. When he appeared before the Manager of the Company, he was asked to go to the Senior Medical Officer of the appellant for examination. The said Officer examined him and was unable to confirm that he had been ailing for a period of nearly two months. Acting on that opinion ' the appellant refused to take back Venkatiah and when Venkatiah pressed to be taken back, the appellant informed him on March 23, 1957 that he could not be reinstated as his explanation for his absence was un satisfactory. The case of Venkatiah was treated by the appellant under Standing Order No. 8(ii) of the Standing Orders of the appellant. Meanwhile, Venkatiah had applied to the Employees State Insurance Corporation and on or about the 15th June 1957 he obtained cash sickness benefit for the period covered by the medical certificate issued. by the Civil Assis 268 tant Surgeon, Kanigiri. The Regional Director to whom Venkatiah had applied for the said assistance accepted the said certificate as alternative evidence and directed that payment may be made to him to the extent permissible under the Act. Accordingly, Rs. 82 14 00 were paid to him. When the appellant refused to take back Venkatiah in its employment, the respondent Union took up his case and it was referred for adjudication to the Labour Court at Madras as an industrial dispute (S.P.O. No. A 5411 of 1958). Before the Labour Court the appellant urged that the reference made was invalid and it also contended that the termination of Venkatiah 's services was 'Justified. The Labour Court rejected the appellants preliminary object ion about the invalidity of the reference. It held that if the matter had to be considered solely by reference to the Standing Orders, the appellant was entitled to succeed, because it was justified in acting upon the opinion given by its Medical Officer in regard to the alleged illness of Venkatiah. When the said opinion was attacked before the Labour Court, it observed that it was easy to make, such an attack and it held that "he was not inclined to accept the correctness of the criticism in the a absence of any strong evidence to show that the Medical Officer was prejudiced against the worker and was motivated with the idea of victimisation". The respondent, however, succeeded before the Labour Court primarily on the ground that the decision of the appellant not to take back Venkatiah was inconsistent with the provisions of section 73 of the Act. That is why the Labour Court directed the management of the appellant to reinstate Venkatiah within two weeks after its award came into force without liability to pay back wages, but with continuity of service. After this award was pronounced by, the Labour Court, the appellant moved the Madras High Court by 2 writ petition and prayed that the said award be quashed (W.P. No. 716 of 1958). This writ petition was allowed by Mr. Justice Balkrishna Ayyar. The learned Judge held that section 73 of the Act was inapplicable to the present case and found that, in substance, the labour court had made its award on grounds of sympathy for Venkatiah rather than on the merits of the case. In the result, the said 269 award was set aside by the learned judge. The respondent challenged the correctness of this decision by a Letters Patent Appeal before a Division Bench of the Madras High Court (No. LPA 82 of 1959). The respondent 's appeal was allowed by the Division Bench and in consequence, the award passed by the Labour Court has been restored. The Division Bench has held that section 73 applied to the present case and that made the refusal of the appellant to take back Venkatiah in its employment illegal. It has also observed that in refusing to take back Venkatiah the appellant had not properly discharged its obligation of examining Venkatiah 's explanation reasonably and that introduced an infirmity in its decision not to take him back. In ,other words, according to the Division Bench, the action of the management amounted to contravention of the provisions of section 73 of the Act and was otherwise not fair. It is against this decision that the appellant has come to this Court with a certificate issued by the Madras High Court under article 133(1)(c) of the Constitution. Mr. Sastri for the appellant contends that the case of Venkatiah falls squarely within the provisions of Standing Order 8(ii) and the High Court was in error in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of section 73 of the Act. Let us first examine Standing Order No. 8(ii) before proceeding any further. The said Standing Order reads thus: "Absent without Leave: Any employee who absents himself for eight consecutive working days without Leave shall be deemed to have left the Company 's service without notice thereby terminating his contract of service. If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance. Any employee leaving the Company 's service in this manner shall have no claim for re employment in the Mills. But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowances. " 270 This Standing Order is a part of the certified Standing Orders which had been revised by an arbitration award between the parties in 1957. The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has ter minated his contract of service. The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service. The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service. It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. But where parties agree upon the terms & conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the, first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment. The latter part of this clause, however, provides that the employee can offer an explanation as to his absence and if Ms explanation is found to be satisfactory by the management, his absence will be converted into leave without pay or dearness allowance. Now this clause is in substance a proviso to its first part. Before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management, 271 the inference of termination of contract of service is rebutted and the leave in question is treated as leave without pay or dearness allowance. This latter clause obviously postulates that if the explanation offered by the employee is not found to be satisfactory by the management, the inference arising from the first part prevails and the employee shall be deemed to have terminated his contract of service with the result that the relationship of master and servant between the parties would be held to have come to an end. With the remaining part of the said Standing Order we are not concerned in this appeal. It is true that absence without leave for eight consecutive days is also treated as misconduct under cl. 13(f) of the Standing Orders. The said clause refers to the said absence and habitual absence without leave. In other words, the position under the Standing Orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under Standing Order 8(ii) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant Standing Order. The fact that the same conduct is dealt with in two different Standing Orders cannot affect the applicability of S.O. 8(ii) to the present case. It is not as if the appellant is bound to treat Venkatiah 's absence as constituting misconduct under S.O. 13(f) and proceed to hold an enquiry against him before terminating his services. Dismissal for misconduct as defined under S.O. 13 may perhaps have different and more serious consequences from the termination of service resulting from S.O. 8(ii). However that may be, if S.O. 8(ii) is applicable, it would be no answer to the appellant 's case under S.O. 8(ii) to say that S.O. 13(f) is attracted. This position is not seriously in dispute. The High Court appears to have taken the view that the appellant did not act fairly in rejecting Venkatiah 's case that he was ill and in refusing to act upon the certificate produced by him in support of his case. It is necessary, in the first instance, to examine the correctness of this con clusion. As we have already indicated, the Civil Assistant Surgeon no doubt certified on March 7, 1957 that Venkatiah had suffered from chronic dysentery from janu 272 ary 15 to March 7, 1957, and he added that he was then completely free from the ailments and was in a fit state of health to join duty on the 9th March 1957. Incidentally, the certificate has been granted at the end of the treatment and specifically avers that he was fit enough to join on March 9, 1957. When Venkatiah was examined by the Medical Officer of the appellant on the 22nd March 1957, thr Medical Officer was unable to confirm that he was ill for a period of nearly two months. The High Court has criticised this certificate as being vague. In our opinion, by this certificate the Medical Officer politely suggests that having regard to the opinion which he formed on examining Venkatiah on March 22, he was unable to confirm the certificate issued by the Civil Assistant Surgeon. What struck the High Court as vague in the certificate is obviously the result of the desire of the appellant 's Medi cal Officer to observe professional courtesy in dealing with the certificate on which Venkatiah relied. Apart from I this aspect, however, we do not see how it was open to the High Court to consider the propriety of the conclusion reached by the Labour Court on this point. We have already noticed that the Labour Court has specifically repelled the criticism made by the respondent against the conduct of the appellant 's Medical Officer and has held that if the matter had fallen to be considered only in the light of Standing Order 8(ii), the appellant would have succeeded. That being so, it is not easy to see how the respondent 's grievance against the said finding of the Labour Court could have been properly upheld by the High Court in exercising its writ jurisdiction under article 226 of the Constitution. Whether or not the appellant should have accepted the certificate of the Civil Assistant Surgeon was primarily for the appellant to consider. It is significant that there is no allegation about mala fides in this case, and so, we do not think that the High Court was justified in making a finding against the appellant on the ground that the appellant had not discharged its obligation under the Standing Orders of properly considering the explanation of Venkatiah in regard to his absence. The High Court was apparently aware of this position and so, it has stated in the course of its judgment that it would rest its decision on what it regarded to be the effect of 273 section 73 "even assuming that the discharge of the worker in the instant case was automatic by virtue of the operation of Standing Order 8(ii), and so, it is to this part of the case that we must now turn. Before doing so, however, we may refer to the argument urged before us by Mr. Dolia for the respondent that it would be anomalous if it is open to the appellant to reject Venkatiah 's case that he was ill during the relevant period when the said case had been accepted by the Corporation when it gave him relief under section 73 and the regulations framed under the Act. Mr. Dolia relies on the fact that Venkatiah satisfied the relevant authorities administering the provisions of the Act that he was ill during the relevant period, and had, in fact, been given assistance on that basis, so that for the purposes of the Act he is held to be ill during that period, and yet the appellant for the purpose of Standing Order 8(ii) holds that Venkatiah was not ill. during the same period. It could not be the intention of the legislature to allow such a glaring anomaly to prevail, says Mr. Dolia, and so, he suggested that the appellant was bound to hold that Venkatiah was ill during the relevant period, having regard to the fact that his illness had been accepted by the relevant authorities under the Act. This argument is no doubt, prima facie, attractive, but before accepting it, it would be necessary to find out whether there is any specific provision in the Act which compels the appellant to accept the view taken by the relevant authority under the Act when it decided to give assistance to Venkatiah. Section 73 of the Act reads asunder : "Employer not to dismiss or punish employee during period of sickness, etc. (1)No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out 274 of the pregnancy or confinement rendering the employee unfit for work. (2)No notice of dismissal or discharge or reduction given to an employee during the period specified in sub section (1) shall be valid or operative." Mr. Dolia contends that since this Act has been passed for conferring certain benefits on employees in case of sickness, maternity and employment injury, it is necessary that the operative provisions of the Act should receive a liberal and beneficent construction from the court. It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act. But, on the other hand, if the words used in the section are reasonably capable of only one construction and are clearly intractable in regard to the construction for which Mr. Dolia contends, the doctrine of liberal construction can be of no assistance. Mr. Dolia 's suggestion is that the general policy of section 73 is to prevent dismissal, discharge, reduction or other punishment being imposed or,. an employee who is ill if it is shown that he has received sickness benefit. There are other cases mentioned in this section to which it is not necessary to refer for the purpose of dealing with Mr. Dolia 's argument. According to Mr. Dolia, the operation of section 73 is confined to cases of illness for instance, and it prohibits the imposition of any penalty wherever it is shown that in respect of the illness in question, the employee has received sickness benefit. In the present case, the employee has received sickness benefit, and so, for the said sickness, no penalty can be imposed on him. That, in brief, is the contention which Mr. Dolia has pressed 275 before us. On the other hand, Mr. Sastri argues that the words used in the section are capable of only one construction. The section merely prohibits any punitive action being taken against the employee during the period of his illness, and he urges that the prohibition is not confined to punitive action in respect of illness alone but extends to punitive action in respect of all kinds of misconduct whatever. What the section says is, during the period that the employee is ill, no action can be taken against him whatever may be the cause for the said action. Mr. Sastri also contended that the clause "during the period the employee is in receipt of sickness benefit" can cover the period during which the sickness benefit is actually received by him, and so, he suggests that since during the period of Venkatiah 's illness itself no sickness benefit had been received by him, section 73(i) is wholly inapplicable. We are not impressed by this argument. In our opinion, the clause "during the period the employee is in receipt of sickness benefit" refers to the period of his actual illness and requires that for the said period of illness, sickness benefit should have been received by him. It is quite clear that in a large majority of cases, sickness benefit would be applied for and received by the employee after his sickness is over, and so, to hold that the period there referred to is the period during which the employee must be ill and must also receive sickness benefit, would make the section wholly unworkable. That is why we do not think that the limitation which Mr. Sastri seeks to introduce by suggesting that sickness benefit must be paid during the course of illness itself, can be read into the section. Even so, what is the effect of section 73(1) ? In considering this question, it would be useful to take into account the provisions of sub section This sub section provides that no notice given to an employee during the period specified in sub section (i) shall be valid or operative. Thus, it is clear that the giving of the notice during the specified period makes it invalid, and it is remarkable that the notice is not in regard to dismissal, discharge or reduction in respect of sickness alone, but it includes all such notices issued, whatever may be the misconduct justifying them. Thus, 276 there can be no doubt that the punitive action which is prohibited by section 73(1) is not confirmed to punitive action proceeding on the basis of absence owing to sickness; it is punitive action proceeding on the basis of all kinds of misconduct which justifies the imposition of the penalty in question. What section 73(1) prohibits is such punitive action and it limits the extent of the said prohibition to the period during which the employee is ill. We are free to confess that the clause is not very happily worded, but it seems to us that the plain object of the clause is to put a sort of a moratorium against 211 punitive actions during the pendency of the employee 's illness. If the employee is ill and if it appears that he has received sickness benefit for such illness, during that period of illness no punitive action can be taken against him. That appears to us to be the effect of that part of section 73(1) with which we arc concerned in the present appeal. If that be so, it is difficult to invoke section 73 against the appellant, because the termination of Venkatiah 's services has not taken place during the period of his illness for which he received sickness benefit. There is another aspect of this question to which it is necessary to refer. Section 73(1) prohibits the employer from dismissing, discharging, reducing or otherwise puni shing an employee. This seems to suggest that what is prohibited is some positive act on the part of the employer, such as an order passed by him either dismissing, discharg ing or reducing or punishing the employee. Where ter mination of the employee 's services follows automatically either from a contract or from a Standing Order by virtue of the employee 's absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employer, and so to such a termination the prohibition contained in section 73(1) would be inapplicable. Mr. Dolia no doubt contended that the word 'discharge ' occurring in section 73(1) should be liberally construed and he argued that termination of service even under Standing Order 8(ii) should be held to be a discharge under section 73(1). We are not prepared to accept this argument. In considering the question about the true denotation of the word "discharge" in section 73(1), it is relevant to bear in mind the provisions of section 85(d) of the Act. 277 Section 85(d) provides that if any person in contravention of section 73 or any regulation, dismisses, discharges, reduces or otherwise punishes an employee, he shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees, or with both. In other words, the contravention of section 73(1) is made penal bys. 85(d), and so, it Would not be reasonable to put the widest possible denotation on the word "discharge" ins. 73(1). The word "discharge" in section 73(1) must,therefore, in the context, be taken to be a discharge which is the result of a decision of the employer embodied in an order passed by him. It may conceivably also include the case of a discharge where discharge is provided for by a Standing. Order. In such a case, it may be said that the discharge flowing from the Standing Order is, in substance, discharge brought about by the employer with the assistance of the Standing Order. Even so, it cannot cover the case of abandonment of service by the employee which is inferred under Standing, Order 8(ii). Therefore, we do not think the High Court was justified in taking the view that the termination of Venkatiah 's services under S.O. 8(ii) to which the appellant has given effect by refusing to take him back, contravenes the provisions of section 73(1). Mr. Dolia argued that on the appellant 's construction 73(1) would afford very unsatisfactory and poor protection to the employees. If all that section 73(1) does is to prevent any punitive action being taken against the employee during the period that he is ill, there is not much of protection given to him at all, says Mr. Dolia. There is no doubt some force in this argument: but as we have already observed, the words used in section 73(1) read with subs. (2) cannot reasonably lead to the construction for which, Mr. Dolia contends. It would, we think, be unreasonable, if not illegitimate, to construe the relevant section merely on the hypothesis that the legislature intended to provide a larger protection to the employees when the said hypothesis cannot be worked out in the light of the words used by the statute. By virtue of the power conferred on the State Government by section 96 to make rules, certain regulations had been framed under the Act in 1950. Chapter III of these 278 Regulations deals with the benefit claims. Regulations 53 to 86 in this Chapter are concerned with the certification and claims for sickness and temporary disablement. Regu lation 54 provides for the persons competent to issue medi cal certificate and Regulation 55 required that the Medical Certificate should be filled in the prescribed form. Regu lation 57 deals with the Medical Certificate on first exa mination and Regulation 58 refers to the final Medical Certificate. Regulation 63 prescribes the form of claim for sickness or temporary disablement. An insured person intending to claim sickness benefit has to submit the said form to the appropriate Local Office by post or otherwise. Regulation 64 lays down that if such a claimant fails to submit to the appropriate Local Office by post or otherwise the first medical certificate or any subsequent medical certificate within the period therein prescribed, he shall not be eligible for that benefit in respect of the period indicated thereunder. It is in the light of these regulations that Regulation 53 has to be considered. This regulation provides that every insured person claiming sickness benefit shall furnish evidence of sickness in respect of the days of his sickness by means of a medical certificate given by an Insurance Medical Officer in accordance with the Regulations in the appropriate form. There is, however, a proviso to Regulation 53 which says that the Corporation may accept any other evidence of sickness or temporary disablement if in its opinion the circumstances of any particular case so justify. In the present case, the Regional Director has accepted the Civil Assistant Surge 'on 's certificate under the proviso to regulation 53 when he directed that cash benefit may be paid to Venkatiah under section 73(1). Having regard to these Regulations, it is difficult to see how the view taken by the Regional Directors about the effect of the certificate issued by the Civil Assistant Surgeon can be said to be binding on the appellant. There is no provision in the Act or the Regulations, to which section 73(1) refers by which it could be contended that once the illness of an insured employee is accepted by the appropriate authority under the Act, it must automatically be accepted by the employer in dealing with the said employee 's case under the Standing Orders. Therefore, the argument that inconsistent results may follow if two views 279 are allowed to be taken about the illness of a given em ployee, does not help the appellant. Besides, as we have already indicated, this argument has hardly any relevance in view of the construction which we are inclined to put on section 73(1) of the Act. In view of our construction of the said section, Mr. Dolia 's argument that there is inconsistency between the said section and Standing Order 8(ii) also has no validity. Before parting with this case, we ought to add that at the very outset, Mr. Sastri for the appellant made it clear to us that the appellant was fighting this appeal not so much to resist the order of reinstatement passed in favour of Venkatiah as to get a decision from this Court about the true scope and effect of section 73(1) of the Act. In other words, he argued that this case was fought as a test case on the question of the construction of the said section. Therefore, when we suggested to Mr. Sastri that the appel lant who is a very big prosperous employer should not resist the reinstatement of a single employee whose case has been brought to this Court, he assured us that he would recommend to the employer to take Venkatiah back on the terms prescribed by the Labour Court in the first instance in this case. In the result, the appeal is allowed, the order passed by the Division Bench of the Madras, High Court is set aside and that of the Single Judge restored. There would be no order as to costs. Appeal allowed.

The respondent lodged a complaint before the Sub Divisional Magistrate alleging that the appellants assaulted him with lathis and forcibly took away currency notes from his pocket. After completing the examination under section 200 of the Code of Criminal Procedure, the Magistrate made the following order "Examined the complaint on s.a. The offence is cognizable one. To S.I. Baikunthpur for instituting a case and report by 12.12.56. " Ultimately, a charge sheet was submitted by the police and the appellants were committed to the court of sessions but the trial ended in acquittal. On appeal by the respondent under section 417(3) of the Code of Criminal Procedure, the order of acquittal was set aside by the High Court and the appellants were convicted under section 395 of the Penal Code and sentenced to two years rigorous imprisonment. It was mainly urged on behalf of the appellants that in this case no appeal lay to the High Court under section 417(3) as the case against them was not instituted on any complaint but on a police report. Held: (i) When on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under section 156(3) or issues a search warrant for the purpose of investigation. he cannot be said to have taken cognizance of any offence. R.R. Chari vs State of U.P., ; and Gopal Das vs State of Assam, A.I.R. 1961 S.C. 986, applied. In the present case, as it is clear from the very fact that the Magistrate took action under section 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under section 202 and not under section 156(3) of the Code of Criminal Procedure. Therefore, it must be held that though the Magistrate used the words "for instituting a case" in his order he was actually taking action under section 202 of the Code, that being the only section under which he was in law entitled to act. 38 Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officers ' report was received. Thus the case was instituted on complaint and not on the police report submitted later. The contention therefore that the appeal d d not lie under section 417(3) must be rejected. (ii) The order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under section 202 of the Code of Criminal Procedure. So the contention that he acted without jurisdiction cannot be accepted. At most it might be said that in so far as he asked the police to institute a case he acted irregularly, but there is no reason to think that it has resulted in any failure of justice.

Appeal No. 582 of 1969. Appeal from the Judgment and Decree dated the 19th March, 1968 of the Bombay High Court at Nagpur in First Appeal No. 72 of 1959. M. N. Phadke, R. A. Gupta and K. B. Rohatgi for the Appellant. B. N. Lokur, Arun Kumar Sanghi and A. G. Ratnaparkhi for the The Judgment of the Court was delivered by CHANDRACHUD, J. This is a plaintiff 's appeal on a certificate granted by the High Court of Bombay, Nagpur Bench, under Article 133(1)(a) of the Constitution On March 24, 1953 defendant 1 executed on behalf of himself and 'his minor son defendant 2, a deed of mortgage in favour of the plaintiff. Defendant 3 is also a son of defendant 1 but he was born, after the mortgage deed, on September 30, 1955. On January 11, 1956 a registered deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defendants 2 and 3. 884 On September 1, 1956 the mortgagee filed Civil Suit No. 3A of 1956 to enforce the mortgage. On September 20, 1958 the trial court passed a preliminary decree for sale of defendant 1 's interest in the mortgaged property. It held that part of the consideration for the mortgage was not supported by legal necessity and the, balance of the debt incurred on the mortgage was tainted with immorality. Though, therefore, defendant 1 had executed the mortgage as a manager of the joint Hindu family consisting of himself and defendant 2, the debt was held not binding on the one half share of defendant 2 in the mortgaged property. On the issue relating to the genuineness of the partition effected by defendant 1 between himself and his suits, the trial court recorded a finding that it wag a sham and colourable transaction and its object was to delay or 1 defeat the creditors. Being aggrieved by. the decree directing the sale of half the mortgaged property only, the plaintiff filed First Appeal No. 40 of 1959 in the High Court of Bombay. Though the suit was dismissed as against defendants 2 and 3, they also filed an appeal in the High Court to challenge the finding of the trial court that the deed of partition was a sham and colourable transaction. That was First Appeal No. 72 of 1959. During the pendency of these two appeals, the preliminary decree was made final by the trial court on October 23, 1958. On March 2, 1960 the plaintiff purchased, with the permission of tile court, a joint half share in the mortgaged property in full satisfaction of his decree. On September 21, 1960 the auction sale was confirmed and on November 25, 1960 the plaintiff was put in joint possession of the property. On March 15, 1966 the appeals filed by the plaintiff and by defendants 2 and 3 came up for hearing before a. Division Bench consisting of Abhyankar and Deshmukh JJ. The hearing of the appeals was adjourned from time to time and while the appeals were part heard, defendants 2 and 3 applied on August 2, 1966 for amendment of their Memorandum of Appeal in First Appeal No, 72 of 1959. By the proposed amendment they sought leave of the High Court to challenge the preliminary decree passed by the trial court. The plaintiff opposed that amendment and applied that she did not desire to prosecute First Appeal No. 40 of 1959 filed by her. The High Court did not pass any orders either on the application for amendment made by defendants 2 and 3 or on the application of the plaintiff asking that her appeal be dismissed for non prosecution. On August 24, 1966 the High Court adjourned the hearing of the appeals for three months to enable defendants to pay the amount due under the preliminary decree. On November 24, 1966 defendants 2 and 3 deposited Rs. 12,500 and applied for an extension of two months for paying the balance. The extension was granted by the High Court and on fabruary 25, 1967 defendants 2 and 3 deposited a further sum of Rs. 25,000 towards the satisfaction of the preliminary decree. On February 14, 1968 another Division Bench of the High Court (Tambe and Badkas, JJ.) allowed the application of defendants 2 and 3 for amendment of their Memorandum of Appeal in First 885 Appeal No. 72 of 1959. On an application made by their counsel, the High Court granted to those defendants time till February 23, 1968 to pay the deficit court fees, which they did. The High Court then took up the two First Appeals. for hearing in March, 1968. As the plaintiff had applied that she did not desire to proceed with First Appeal No. 40 of 1959 filed by her, the High Court dismissed that appeal for non prosecution. As a consequence of this order the High Court observed that the findings recorded by the trial court in favour of the defendants and adverse to the plaintiff would stand confirmed. In First Appeal No. 72 of 1959 filed by defendants 2 and 3 it was urged by the plaintiff that as the appeal was originally filed to challenge the finding of the trial court on the question of genuineness of the partition. defendants 2 and 3 were not entitled to include now grounds in the Memorandum of Appeal and that the Memorandum should not have been permitted to be amended. The High Court hold that in view of the Provisions of Order 41, Rule 2, Civil Procedure Code. it was oven to defendants 2 and 3. with leave of the court, to urge additional grounds in their appeal without amending the Memo randum of appeal and therefore the objection raised by the plaintiff as against the amendment was futile. The High Court further held that the appeal filed by defendants 2 and 3 was competent even though the suit, was wholly dismissed as against them. According to the High Court, defendants 2 and 3 were aggrieved by the adverse finding on the question of partition and further they were denied under the preliminary decree the right to pay the decretal amount and to redeem the mortgage. It was there fore open to them to file an appeal against that decree. On the merits of the appeal the High Court set aside the finding of the trial court and held that the partition was "real and genuine" and that it was not effected in order to defeat :lie creditors. Defendants 2 and 3 bad therefore become owners of the, equity of redemption and they could not be deprived of the right to redeem the mortgage. In the result, the High Court set aside the preliminary decree as also the final decree and with it the auction sale in favour of the plaintiff. The High Court passed a fresh preliminary decree under Order 34, Rule 4, Civil Procedure Code declaring that the plaintiff was entitled to recover Rs. 34, 386 and odd and directing the defendants to pay the entire decretal amount within six months of the date of decree. The plaintiff questions the correctness of that decree in this appeal. It is necessary first to understand the nature of the appeal filed by ,defendants 2 and 3 in the High Court and the relief they sought therein. That appeal was in terms filed only against the finding recorded by the trial court that the partition between defendant 1 and his sons was a sham and colourable transaction intended to defeat or delay the creditors. The Memorandum of Appeal as filed originally contained 886 seven grounds, each of which was directed against the finding given by the trial court on the question of partition. The Memorandum contained a note that as the subject matter in dispute was not capable of being estimated in terms of a money value, a fixed court fee of Rs. 20 was paid thereon. Only one prayer was originally made in the Memorandum of Appeal that the partition deed be declared as genuine. Counsel for defendants 2 and 3, furnished to the registry of the High Court a written explanation as required by Rule 171 of the High Court Rules that as defendants 2 and 3 were only challenging the finding recorded by the trial court on the question of partition and as they were merely seeking a declaration that the partition was genuine, the fixed court fee of Rs. 20 was properly paid. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one 's peril,_bring a suit of one 's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. Under section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders". Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". 'Order 43, Rule 1 of the Code, which by reason of clause (i) of section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof, Finally, section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under, rules from which an appeal is expressly allowed by Order 43, Rule 1. 887 No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court. The High Court mixed up two distinct issues : one, whether it was competent to defendants 2 and 3, if they were aggrieved by the preliminary decree of file an appeal against that decree; and two, whether the appeal such as was filed by them was maintainable. If it be correct that defendants 2 and 3 could be said to have been aggrieved by the preliminary decree, it was certainly competent for them to challenge that decree in appeal. But they did not file an appeal against the preliminary decree and therefore the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant. While deciding whether the appeal filed by defendants 2 and 3 was maintainable ' , the High Court digressed into the question of the competence of defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them, the High Court held that the appeal, which in fact Was directed against a find ing given by the trial court, was maintainable. It the High Court had appreciated that the two questions were distinct and separate, it would not have fallen into the error of deciding the latter question by considering the former. Adverting to the question which the High Court did consider, namely, whether defendants 2 and 3 could be said to be aggrieved by the preliminary decree, there is nothing in the terms of that decree which precluded those defendants from depositing the decretal amount to be able to redeem the mortgage. The trial court had passed the usual preliminary decree for sale in Form No. 5A, under Order 34, Rule 4, Civil Procedure Code. If the amount found due to the appellant under the decree was paid into the court within the stipulated or extended period, the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to the mortgaged property and to deliver up to the defendants quiet and peaceable possession of the property free from the mortgage. The amount declared to be due to the appellant by the preliminary decree was not paid by the defendants, from which it would appear that they were not interested in paying the amount. It is significant that defendants 2 and 3 were served with the notice of final decree proceedings and they appeared therein. The Code is merciful to mortgagors and perhaps 'rightly, because the mortgagee ought to have no grievance if the loan advanced by him is repaid with permissible interest, costs and expenses. Under Order 21, Rule 89, it was open to defendants 2 and 3 as late as after the appellant purchased the property in the auction sale, to pay the amount due to her. These defendants had interest in the mortgaged property by virtue of a title acquired before the sale, that is, under the registered partition dated January 11, 1956. Under Order 21, Rule 89, where immovable property is sold in execution of a decree, any person owing the property or holding an interest there 888 in by virtue of a title acquired before the sale, can apply to have the sale set aside on his depositing in Court, for payment to the purchaser a sum equal to five per cent of the purchase money and for payment to the decree holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered. Nothing of the kind was done and even the last significant opportunity was not availed of by the defendants. Counsel for the appellant seems right that the defendants were content that only half the mortgaged property was directed to be sold and that it was only because of the later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree. That was much too late. So late indeed, that not having any plausible reason to assign for the inordinate delay caused in applying for an amendment of the appeal, they preferred not to file an application for condonation of delay at all. The appeal was filed on January 4, 1959 while, the application for amendment was made on August 2, 1966. Event though no explanation was offered for the long delay of over 7 1/2 years, the High Court allowed the amendment with a laconic order "Application for amendment allowed". Thus, the appeal filed by defendants 2 and 3 being directed against a mere finding given by the trial court was not maintainable; defendants 2 and 3 were not denied by the preliminary decree the right to pay the decretal amount; and the two defendants could even have applied under Order 21, Rule 89, for setting aside the sale in favour of the appellant but they failed to do so as, presumably, they were not interested in paying the amount. The High Court was therefore wholly in error in allowing the amendment of the Memorandum of Appeal, particularly when defendants 2 and 3 had neither explained the long delay nor sought its condonation. The preliminary decree had remained unchallenged since Sep tember 1958 and by lapse of time a valuable right had accrued in favour of the decree holder. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court. The appeal in terms was originally directed against the finding given by the trial court that the partition was sham and colourable. "Being aggrieved by the finding given in the Judgment and the Decree. . . it is humbly prayed that findings given by the learned Judge in Para 34 of his Judgment may kindly be set aside, and instead the partition deed dated 11 1 56 may kindly be declared as genuine" So ran the Memorandum of Appeal. Defendants 2 and 3 reiterated through their counsel by Ming a note to explain the payment of fixed court fees of Rs. 20 that they were "seeking the relief of declaration only" and therefore the court fee paid was proper and sufficient. Long years thereafter, the High Court allowed the Memorandum to be amended not a reason was cited to, explain the delay and not a reason was given to condone it. And it was not appreciated that in granting time to defendants 2 and 3 to 889 make up the deficit of the court fees 71 years after the appeal was filed, an amendment was being allowed which had its impact not only on the preliminary decree but on the final decree which was passed in the meanwhile, the auction sale which was held in pursuance of the final decree and the sale certificate which was granted to _the appellant who, with the leave of the court and in full satisfaction of her decree, had purchased a joint 1/3 share in the mortgaged property. With the striking down of the preliminary decree, these proceedings had to fall but the error really lay in allowing the amendment so as to permit, without good cause shown, a belated challenge to the preliminary decree. One other aspect of the question relating to the maintainability of the appeal yet remains to be examined. Counsel for the respondents. argues that the finding of the trial court on the issue of partition would have operated as res judicata against them and they were therefore entitled to appeal therefrom. In Harchandra Das vs Bholanath Day on which the learned counsel for the respondents relies in support of this submission, a suit for preemption was dismissed by the trial court on the ground of limitation. In an appeal filed by the plaintiff, the District Court reversed that finding but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in favour of defendants 1, 2 and 3 was not validly registered and there being no "sale", there can be no right of preemption. Defendants 1 to 3 preferred an appeal to the High Court against the finding recorded by the District Court that the sale effected in their favour by defendants 4 and 5 was not valid as it was not lawfully registered. On a preliminary objection raised by the plaintiffs to the maintainability of the appeal, the High Court of Calcutta, held that though under the Code of Civil Procedure there can be no appeal as against a mere finding, "it may be taken to be the view of courts in India generally, that a party to the suit adver sely affected by a finding contained in a judgment, on which a decree, is based, may appeal; and the test applied in some of the, cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res judicata in other proceedings". The High Court, however, upheld the preliminary objection on the ground that the issue regarding validity of the sale which was decided against defendants 1 to 3 would not operate as res judicata in any subsequent proceeding and therefore the appeal which was solely directed against the finding on that issue was not maintainable. The position here is similar to that in the Calcutta case. The trial court decreed the mortgagee"s suit only as against defendant 1, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3. Whether the partition between the father and sons was sham or real had no (1) I.L.R. 890 impact on the judgment of the trial court and made no material difference to the decree passed by it. The finding recorded by the trial court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the court were to find that the partition was genuine, the mortgage would only have bound the interest, of the father as the debt was not of a character which, under the .Hindu law, would bind the interest of the sons. There is no substance .in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from .the mortgage encumbrance. The validity or the binding nature of an .alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karta of a joint Hindu family ,can easily be avoided by effecting a partition amongst the members of .the joint family. As the matter relating to the partition was not directly and substantially in issue 'in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on ,,the assumption that the High Court of Calcutta is right in its vie", that though under the Code there could be no appeal against a finding, ,yet "On grounds of justice" an appeal may lie against a finding provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the .finding in any other proceeding. It is not necessary here to determine ,whether the view of the Calcutta High Court is correct. For these reasons we allow the appeal with costs, set aside the judgment of the High Court and restore that of the trial court. section C. Appeal allowed.

In 1953, defendant 1 executed on behalf of himself and his minor son, defendant 2, a deed of mortgage in favour of the plaintiff. Deft. 3 is also a son of deft. I who was born after the mortgage deed. In 1956, a regd. deed of partition was executed amongst the defendants under which the mortgaged property was allotted to the share of defts 2 & 3. Thereafter, the mortgagee filed a civil. suit to enforce the mortgage and the trial court passed a preliminary decree for sale of deft. 1 's interest in the mortgaged property. It held that part of the consideration for the mortgage was not supported by legal necessity and the balance of the debt incurred was tainted with immorality. Therefore, the debt was held not binding on the one half share of deft. 2 in the mortgaged property. As regards the partition, the trial court held that it was a colourable transaction effected to delay or defeat the creditors. Being aggrieved, pltf. filed an appeal (40/59) in the High Court. Deft. 1 & 2 against whom the suit was dismissed, also filed an appeal (72/59) against the finding of the trial court that the partition was a colourable transaction. During the pendency of these 2 appeals, the preliminary decree was made final by the trial court and in 1960, the plaintiff purchased with the permission of the court, a joint half share of the mortgaged property in full satisfaction of his decree. Thereafter, the auction sale was confirmed and the plaintiff was put in joint possession of the property. Thereafter, the appeals filed by the) plaintiff and defendants 2 and 3 came up for hearing and while the appeals were part hard, defts 2 & 3 applied on August 2, 1966 (nearly 7 1/2 years after filing the appeals), applied for amendment of their Memorandum of appeal in first appeal No. 72/59 and sought permission of the High Court to challenge the preliminary decree passed by the trial Court. The plaintiff opposed that amendment and applied that she did not desire to prosecute first appeal No. 40/59 filed by her. The High Court did not pass any orders either on the application for amendment or the plaintiff 's appeal, but adjourned the hearing of the appeals for 3 months to enable defendants to pay the amount due under the preliminary decree. Accordingly the defendants deposited the money towards the satisfaction of the preliminary decree. After about 2 years, another division bench of the High Court, allowed the amendments of the defendants Memo of Appeal in Appeal No. 72/59 and allowed time to the defendants to pay the deficit Court fee, which they paid. The High Court, then took the 2 appeals for hearing and dismissed appeal No. 40/59 for non prosecution and confirmed the findings of the trial court in favour of the defendants. As regards appeal No. 72/59, the High Court held that in view of Order 41, Rule 2 C.P.C., it was open to the defendants. with the leave of the court, to urge additional grounds without amending the Memo of Appeal and therefore, the objection raised. by the plaintiff that amendment should not be allowed, cannot be upheld. The High Court further held that the defendants ' appeal was competent and they had the right to redeem the mortgage. On the merits, the High Court held that the partition was real and genuine. In the result, the High Court set aside the preliminary decree as also the final decree and with it the auction 883 sale in favour of the plaintiff. The High Court passed a fresh preliminary decree under order 34, Rule 4 C.P.C., directing that that the plaintiff was to recover Rs. 34,386/ and 'odd and directed the defendants to pay the entire decretal amount within 6 months of the date of decree. The plaintiff questions the correctness of the decree before this Court. The appeal filed by defendants 2 & 3 Was against the finding recorded by the trial court that the partition between deft. 1 and his sons was a colourable transaction. Therefore, it was clear that the appeal filed by defts. 2 & 3 was directed originally not against any part of the preliminary decree but against a mere finding recorded by the trial court that the partition was not genuine. Before this Court, the main question was whether that appeal was maintainable and secondly, whether it was proper for the High Court to allow the amendment of the Memo of appeal after 7 1/2 years without good cause shown and Without any application for condonation of delay. Allowing the appeal, HELD : (i) There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of at civil nature, but the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. The various provisions in the C.P.C. show that under the Code, an appeal lies only as against a decree or as against an order passed under rates from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Codes does not provide for any such appeal. Therefore, the first appeal filed by. defendants 2 and 3 in the High Court was not maintainable as it was directed against a mere finding recorded by the trial court. [886 D H] (ii) The High Court should not have allowed the amendment of the Menlo of Appeal particularly when defendants 2 & 3 had neither explained the long delay nor sought its condonation. Defendants 2 & 3 were not denied by the preliminary decree the right to pay the decretal amount and the two defendants could even have applied under order 21, Rule 89 for setting aside the sale in favour of the appellant; but they failed to do so. The preliminary decree had remained unchallenged since September, 1958 and by lapse of time a valuable right had accrued in favour of the decree holder. Therefore, to allow the amendment after such a long time without a good cause was not a proper exercise of judicial discretion in the circumstances of the case. [888 D E]

Civil Appeal No. 1212 of 1984. Appeal by Special leave from the Judgment and order dated the 20th October, 1983 of the Bombay High Court in W. Appeal No.779 of 1983. P.R.Mridul, G. Vishwanath & Parijat Sinha, for the Appellant. Ram Jethmalani & Soli J. Sorabjee, M.N. Shroff, Talegankar & B.V. Desai. for the Respondents. The Judgment of the Court was delivered by BHAGWATI, J. Special Leave Granted. This appeal by special leave raises a short question of law as to whether an order of requisition of premises can be continued for an indefinite period of time or it must necessarily be of temporary duration. The facts giving rise to this appeal are few and may be briefly stated as follows: One Rukmanibai was the owner of a building bearing House No. 65, Police Station Road, Ville Parle West, Bombay. The ground floor of this building comprised of a flat which was in the occupation of one N.C. Shah as a tenant and since N.C. Shah was going to vacate the flat, Rukmanibai gave intimation of the proposed vacancy to the State Government and requested the State Government to allot the premises to the appellant who was her nearest relative. The appellant also addressed a letter dated 12th March 1951 to the Chief Officer of the Accommodation Department of the Government of Bombay requesting that he should be allotted the flat which was going to be vacated by N.C. Shah. It appears however that the request of the appellant was turned down by the State Government and ultimately the flat was requisitioned by an order dated 9th April 1951 made by the State Government in exer 697 cise of the powers conferred under clause (a) of sub section (4) of section 6 of the Bombay Land Requisition Act 1948. This order of requisition did not set out the public purpose for which the flat was requisitioned. Now curiously enough, though it was decided by the State Government not to allot the flat to the appellant and his application for allotment was specifically reacted the Assistant Controller of Accommodation passsed an order on 25th April 1951 allotting the requisitioned flat to the appellant and pursuant to the order of allotment, the appellant entered into occupation of the flat. The appellant thereafter paid rent to Rukmanibai from time to time but the payment of rent was very irregular and the appellant committed several defaults in payment of rent with the result that not less than seven owners had to be passed by the Accommodation Department of the Government of Bombay directing the appellant to vacate the flat because his chronic defaults. Ultimately, however, each time no action for eviction was taken by the Controller of Accommodation, presumably because the appellant must have paid up the rent. It is significant to note that in the year 1964 the appellant requested the Controller of Accommodation to derequistion the flat and to allow him to become direct tenant of Rukmani Bai but his application was rejected by letter dated 25th March 1964. The appellant also thereafter in the year 1979 applied to the Controller of Accommodation for sanction to erect a kitchen platform in the flat but this application was turned down by a letter dated 20th March 1979 addressed by the Controller of Accommodation. The appellant throughout this period continued to occupy the flat as an allottee under the order of requisition and paid rent to Rukmanibai from time to time. thought irregularly. The building in which the requisitioned flat was situate, was purchased by the 3rd respondent from Rukmanibai on 30th May 1973. The 3rd respondent, after purchase of the building, requested the State Government to derequisition the flat inasmuch as the allotment of the flat in favour of the appellant could not be for a public purpose. The State Government did not pay any heed to this request of the 3rd respondent with the result that the 3rd respondent was constrained to file writ petition No. 1210 of 1980 in the High Court of Bombay challenging the validity of the order of requisition and contending that it could not survive for such a long period of time and the State Government was therefore bound to derequisition the flat. 698 One of the grounds on which the validity of the order of requisition was challenged was that the order of requisition did not set out the public purpose for which it was made. This ground of challenge was negatived by the High Court and, in our opinion, rightly, because it is not necessary that the order of requisition must explicitly set out the public purpose for which it is made. The only requirement of the law is that the requisitioning must be made for a public purpose and so long as there is a public purpose for which an order of requisition is made, it would be valid irrespective whether such public purpose is recited in the order of requisition or not. It has, in fact, been so held by this Court in State of Bombay vs Bhanji Munji & Anr. (1) where Bose, J. speaking on behalf of the Court observed: "In our opinion, it is not necessary to set out the purpose of the requisition in the order. The desirability of such a course is obvious because when it is not done, proof of the purpose must be given in other ways and that exposes the authorities to the kind of charges we find here and to the danger that the courts will consider them well founded. But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the court in some other way. " The order of requisition could not therefore be successfully attacked on the ground that it did not set out the public purpose for which it was made. But, as pointed out by Bose, J. in the above dassage quoted from this judgment in Bhanji Munji 's case (supra), the State Government would have to show that the order of requisition was made for a public purpose and the necessary facts showing the public purpose for which the order of requisition was made would have to be established by the State Government to the satisfaction of the court. The High Court held in the present case that no material was placed before it to show what was the public purpose for which the order of requisition was made and in fact, there was no denial on the part of the State Government or the appellant of the averment made on behalf of the 3rd respondent that the appellant was neither a government servant nor a homeless person. This view taken by the High Court appears to be well founded and it is not 699 possible to hold on the material placed before us that the order of requisition was made for a public purpose. But it was contended on behalf of the appellant that even if the order of requisition was invalid as having been made for a purpose other than a public purpose, the 3rd respondent was not entitled to challenge the same after a lapse of over 30 years and the writ petition should therefore have been dismissed by the High Court. Now if the only ground on which the order of requisition was challenged in the writ petition was that it was not made for a public purpose and was therefore void, perhaps it might have been possible to successfully repel this ground of challenge by raising an objection that the High Court should not have entertained the writ petition challenging the order of requisition after a lapse of over 30 years. But we find that there is also another ground of challenge urged on behalf of the 3rd respondent and that is a very formidable ground to which there is no answer. The argument urged under this ground of challenge was that an order of requisition in the present case therefore ceased to be valid and effective after the expiration of a reasonable period of time and that it could not, under any circumstances, continue for a period of about 30 years and hence it was liable to be quashed and set aside or in any event the State Government was bound to revoke the same and to derequisition the flat. This contention has, in our opinion, great force and must be sustained. There is a basic and fundamental distinction recognised by law between requisition and acquisition. The Constitution itself in Entry 42 of List III of the Seventh Schedule makes a distinction between acquisition and requisitioning of property. The original Article 31 clause (2) of the Constitution also recognised this distinction between Compulsory acquisition and requisitioning of property. The two concepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former. Vide: Observations of Mukherjee, J. in Chiranjitlal 's case. The concept of acquisition has an air of permanence and finality in the there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of "domain or control over pro 700 perty without acquiring rights of ownership" and must by its very nature be of temporary duration. If requisitioning of property could legitimately continue for an indefinite period of time, the distinction between requisition and acquisition would tend to become blurred, because in that event for all practical purposes the right to possession and enjoyment of the property which constitutes a major constituent element of the right of ownership would be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over the property without acquiring it and paying full market value as compensation under the Land Acquisition Act, 1894. We do not think that the government can under the guise of requisition continued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the government wants to take over the property for an indefinite period of time, the government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premisses being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely. Here in the present case the order of requisition was made as far back as 9th April 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person, it cannot be allowed to continue for such an inordinately long period as thirty years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is not necessary for us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and 701 circumstances of each case but there can be no doubt that whatever be the public purpose for which an order of requisition is made the period of time for which the order of requisition may be continued cannot be an unreasonably long period such as thirty years. The High Court was, therefore, in any view of the matter, right in holding that in the circumstances the order of requisition could not survive any longer and the State Government was bound to revoke the order of requisition and deregulation the flat and to take steps to evict the appellant from the flat and to hand over vacant possession of it to the 3rd respondent. There was also one other contention urged on behalf of the appellant in a desperate attempt to protect his possession of the flat and that contention was, since he had paid rent of the flat to Rukmanibai and such rent was accepted by her, he had become a direct tenant of Rukmanibai and the order of requisition had become totally irrelevant so far as as his possession of the flat is concerned. This contention is, in our opinion, wholly unfounded. The appellant admittedly came into occupation of the flat as an allottee under the order of requisition passed by the State Government and even if any rent was paid by the appellant to Rukmanibai and such rent was accepted by her, it did not have the effect of putting an end to the order of requisition. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation to Rukmanibai for the requisitioning of the flat and if, therefore, instead of the appellant paying compensation to the State Government and the State Government making payment of an identical amount to Rukmanibai, the appellant paid directly to Rukmanibai with the express or in any event implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter at all whether the appellant described the amount paid by him to Rukmanibai as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of an amount described as rent could possibly alter the nature of his occupation of the flat or make him a tenant of Rukmanibai in respect of the flat. We are therefore of the view that the High Court was right 402 in allowing the writ petition and directing the State Government and the Controller of Accommodation to deregulation the flat and to take steps to evict the appellant and to hand over vacant and peaceful possession of the flat to the 3rd respondent. We accordingly dismiss the appeal, and confirm the order passed by the High Court but in the circumstances of the case, the appellant shall not be evicted from the flat until 28th February, 1985, provided the appellant files an undertaking in this Court within two weeks from today that he will vacate the flat and hand over its vacant possession to the 3rd respondent on or before that date. There will be no order as to costs of the appeal. N.V.K. Appeal dismissed.

The appellant applied to the Accommodation Department of the State Government for allotment of a flat. The State Government urged down the request but requisitioned the flat by an order dated 9th April, 1948 under clause (a) of sub section(4) of section 6 of the Bombay Land Requisition Act, 1948. This order of requisition, did not set out the public purpose for which the flat was requisitioned. The Assistant Controller of Accommodation by an order dated 25th April, 1951 allotted the requisitioned flat to the appellant who entered into occupation and paid rent to the landlady from time to time but as he was irregular and committed several defaults the Controller of Accommodation sought to terminate the allotment. The 3rd respondent, on 30th May, 1973 purchased the building in which the requisitioned flat was situated, and requested the State Government to de requisi 694 tion the flat, as the allotment of the flat in favour of the appellant could not be said to be for a public purposes. The State Government did not pay any heed to this request. The 3rd respondent, thereupon filed a Writ Petition in the High Court challenging the validity of the order or requisition, contending that it could not survive for such a long period of time and that the State Government was therefore bound to de requisition the flat. The High Court allowed the Writ Petition and directed the State Government and the Controller of Accommodation to de requisition the flat, take steps to evict the appellant, and hand over vacant possession. In appeal this Court, it was contended inter alia on behalf of the appellant tenant that even the order of requisition was invalid as having been made for a purpose other than a public purpose, the 3rd respondent was not entitled to challenge the order of requisition after a lapse of over 30 years and that the Writ Petition should have been dismissed by the High Court. Dismissing Appeal, ^ HELD: 1. The order of requisition even if it was valid when made, ceased to be valid and effective after expiration of a reasonable period of time What period of time must be regarded as reasonable for the continuance of an order of requisition depends on the facts and circumstances of each case. [700 H] In the instant case, the order of requisition was made as far back as 9th April 1951 and even if it was made for housing a homeless person, and the appellant at that time, fell within that category, it cannot be allowed to continue for such an inordinately long period as thirty years. [700 G] 2. Requisitioning must be made for a public purpose, and so long as there is a public purpose for which an order of requisition is made, it would be valid irrespective of whether such public purpose is recited in the order of requisition or not. But if the order is challenged, the State Government would have to satisfy the Court by placing the necessary facts showing the public purpose for which the order of requisition was made. [698 B,G] 3. There is a basic and fundamental distinction recognised by law between requisition and acquisition. The Constitution itself in Entry 42 of List III of Seventh Schedule makes a distinction between acquisition and requisitioning of property. The original Article 31 clause (2) of the Constitution and recognised this distinction 695 between compulsory acquisition and requisition of property. The two concepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisiting means the acquiring of the entire title of the expropriated owner what ever the nature and extent of that title may be. The entire of rights which was vested in the original holder passes on acquisition to the acquire leaving nothing to the former. The concept of acquisition as an aim of permanence and finality in that there is a transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of "domain or control over property without acquiring rights of ownership" and must by its very nature be of temporary duration. [699 F H] 4. If the Government wants to take over the property for and indefinite period of the Government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order or requisition, if passed, would a fraud upon the statute. What ever be the public purpose for which an order of requisition made, it is by its very nature temporary in character and it cannot endure for an indefinite period time. The period of time for which an order of requisition may be continued cannot be an unreasonably long period such as thirty years and it must therefore be held that the order of requisition, even if valid when made, ceased to be valid and effective. The Writ Petition challenging the order of requisition after a lapse of over thirty years was therefore maintainable.[700 C F,701 A] 5. The appellant was an allottee of the flat under the order of requisition and he was liable to pay compensation for the use and occupation of the flat to the State Government and the State Government was in its turn liable to pay compensation for the requisitioning of the flat. If, instead of the appellant paying compensation to the State Government and the State Government and the State Government making payment of an identical amount to the owner, the appellant paid directly to the owner with the express or implied assent of the State Government, the order of requisition could not cease to be valid and effective. It did not matter whether the appellant described the amount paid by him to the owner as rent, because whatever was done by him was under the order of requisition and so long as the order of requisition stood, his possession of the flat was attributable only to the order of requisition and no payment of amount described as rent could possible after the nature of his occupation of the flat or make him a tenant in respect of the flat.[701 F H] State of Bombay vs Bhanji Munji & Anr. [1955] 1 S.C.R. 777; Chiranjital 's case [1950]S.C.R. 869; referred to. 696

minal Appeal No. 20 of 1954. Appeal from the Judgment and Order dated the 26th August, 1953, of the Bombay High Court in Criminal Revision Application No. 51 8 of 1953 arising out of the Judgment and Order dated the 9th December, 1952, of the Court of Presidency Magistrate, Bombay, in Case No. 3442/P of 1952. section P. Verma, for the appellant. M. C. Setalvad, Attorney General for India (Porus A. Mehta and P. G. Gokhale, with him), for the respondent. 97 1955. March 25. The following Judgments were delivered. DAS J. The appellant before us was on the 9th December, 1952 convicted by the Presidency Magistrate, 13th Court, Bombay, of an offence under section 66(b) of the Bombay Prohibition Act (Act XXV of 1949) and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 250 or to undergo rigorous imprisonment for one month. The appellant preferred an appeal to the High Court of Judicature at Bombay but his appeal was summarily dismissed by a Bench of that Court on the 19th January 1953. After the dismissal of that appeal the State of Bombay made a Criminal Revision application to the High Court for enhancement of the sentence. Notice having been issued to the appellant under section 439(2) of the Code of Criminal Procedure, learned counsel for the appellant claimed the appellant 's right under section 439(6) to show cause against his conviction. This the High Court did not permit him to do. The High Court, however, did not think fit to make any order for enhancement of sentence. On an application made on behalf of the appellant the High Court of Bombay has given leave to the appellant to appeal to this Court and granted a certificate of fitness under article 134(1) (c) of the Constitution of India. The question for our consideration in this appeal is whether the summary dismissal of the appeal preferred by the appellant precluded him from taking advantage of the provisions of section 439(6) of the Code of Criminal Procedure when he was subsequently called upon to show cause why the sentence imposed upon him should not be enhanced. The question depends for its answer upon a true construction of section 439. That section, so far as it is material for our present purpose, reads as follows: "439. (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discre 13 98 tion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426) 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3). . . . . . . . . . . . . (4). . . . . . . . . . . . . (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6)Notwithstanding anything contained in this section,any convicted person to whom an opportunity has been given under sub section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction". For a correct appreciation of the real meaning, import and scope of the provisions of sub section (6) of section 439 it will be necessary to bear in mind its historical background. In England there is no provision for an appeal by the Crown either against an order of acquittal or for the enhancement of sentence. There the person convicted has a right of appeal both against his conviction and the sentence imposed upon him. Under the English criminal procedure, therefore, the question of enhancement of sentence only comes before the Court of Criminal Appeal when there is an appeal by the convicted accused. In this country the provisions relating to the Court 's power of enhancement of sentence have undergone radical changes from time to time. Section 407 of the Code of Criminal Procedure, 1861 prohibited any appeal from acquittal. Express power was given to the appellate Court to reduce the sentence (sections 425 and 426) and like power was given to the Sudder Court as a Court of revision (sections 405 and 406). I find no provision 99 in that Code authorising the Sudder Court to enhance the sentence. The Code of Criminal Procedure of 1872, however, by section 272 permitted the Government to file an appeal from acquittal. This was repeated in section 417 of the Code of 1882 which corresponds to section 417 of the present Code. Section 280 of the Code of 1872 expressly authorised all appellate Courts to enhance the sentence. This power of enhancement, however, was taken away from the appellate Courts by section 423 of the Code of 1882 now reproduced in section 423 of the present Code and was vested in the High Court under section 439 of the Code of 1882 to be applied in exercise of its revisional power. This has been continued in our present section 439. This shows that the Legislature thought that this extraordinary power should be exercised only by the High Court and no other Court. A practice, how ever, appears to have grown up that in cases coming up before it for enhancement of sentence the High Court accepted the conviction as conclusive and proceeded to consider the question of enhancement of sentence on that basis. (See Emperor vs Chinto Bhairava (1)). Then came Act XVIII of 1923 which, by section 119, amended section 439 by adding the present sub section (6) and also amended section 369 by substituting the words "save as otherwise provided by this Code or by any other law for the time being in force, or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court" for the words "No Court other than a High Court" with which the section formerly opened. The results of these amendments were (i) to make the judgment or order of the High Court passed in exercise of its original criminal jurisdiction final which it was not under section 369 as it originally stood and to make this finality subject to the other provisions of the Code or of the Letters Patent of the High Court and (ii) to nullify the practice referred to above and to give a statutory right to an accused person who was threatened with the risk of having the sentence imposed on him by the trial Court or the lower appel (1) Bom. 100 late Court enhanced by the High Court in exercise of its revisional jurisdiction suo motu or at the instance of the State or in exceptional cases even of any other interested person. Sub section (6), therefore, confers a new and a very valuable right on the subject which is designed to be a safeguard against the State or other interested person making frivolous revision application for enhancement of sentence. The State or the person interested must, if they ask for an enhancement of sentence, be prepared to face the risk of the accused being altogether acquitted. It is the price or quid pro quo which the State or other interested person must be prepared to pay for the right or privilege of making an application for enhancement of sentence. The language used in sub section (6) does not, in terms, place any fetter on the right conferred by it on the accused. This new right is not expressed to be conditioned or controlled by anything that may have happened prior to the revision application under sub section (1) for enhancement of sentence. The section quite clearly says that whenever there is an application for enhancement of sentence a notice must issue under sub section (2) to the accused person to show cause and whenever such notice is issued the accused person must, under sub section (6), be given an opportunity, in showing cause against enhancement, also to show cause against his conviction. The sub section does not say that he will have this right to show cause against his conviction only if he has not already done so. If the accused person appealed against his conviction and sentence to an appellate Court not being a High Court and lost that appeal after a full hearing in the presence of his opponent it must be conceded that he has had an opportunity to show cause against his conviction but nobody will contend that that circumstance will prevent him from having another opportunity of showing cause against his conviction and sentence either by a substantive application initiated by himself under sub section (1) or by way of defending himself when the State or other interested person applies to the High Court in revision under section 439(1) for enhancement of 101 sentence and a notice is issued on him under section 439(2). (See Kala vs Emperor(1)). Enhancement of sentence is undoubtedly an encroachment upon the liberty of the subject and a very serious matter for an accused person and the Legislature may quite properly have thought that whenever an accused person is sought to be laid open to the risk of having his sentence enhanced, the question of the legality and propriety of his conviction should be reexamined by the High Court in the context of this new jeopardy, irrespective of anything that might have happened prior to the application for enhancement of sentence and the issuing of the notice on the accused to show cause. Indeed, there is, in sub section (6) itself, an indication in that behalf. This sub section is to operate "notwithstanding anything contained in this section". In some of the decisions (e.g. Emperor vs Jorabhai(2), Crown vs Dhanna Lal(3), Emperor vs Inderchand(4) and King vs Nga Ba Saing(5)) it has been said that the non obstante clause refers only to sub section (5). I find it difficult to accept this limited construction as correct. Sub section (5) only says that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. The idea is that if a person has a right of appeal he must first pursue that remedy. In other words, sub section (5) is a disabling provision. By providing that no proceedings by way of revision shall be entertained at the instance of a person who, having a right of appeal, does not avail himself of it, the sub section precludes such a person from initiating proceedings by way of revision. When the accused person under sub section (6) shows cause against his conviction he himself initiates no proceedings but only exercises the right to show cause against his conviction which is given to him because somebody else has taken proceedings against him for enhance ment and a notice has been issued on him under subsection (2). In such a situation the accused person (1) A.I.R. 1929 Lah. 584. (2) Bom. (3) Lah. (4) A.I.R. 1934 Bom. (5) A.I.R. 1939 Rang. 392, 102 is on the defensive and the act of showing cause against proceedings initiated against him cannot properly be said to be, proceedings "at his instance" which the High Court, by sub section (5), is enjoined not to entertain. Strictly speaking sub section (6) needs no exemption from sub section (5). In any event and assuming that the act of showing cause against his conviction under sub section (6) is tanta mount to an application in revision initiated by him and such application is saved from the operation of sub section (5) by the non obstante clause of sub section (6) 1 do not see any reason for holding that the non obstante clause of sub section (6) is concerned only with sub section (5). Although in showing cause against his conviction under sub section (6) the accused person can urge all that he could do in an appeal, if not more, this act of showing cause is, nevertheless, in form at least, a continuation and indeed an integral part of the proceedings in revision initiated by the Court suo motu or by the State or any other interested party. The general rule is that the exercise of revisional power is entirely a matter of discretion which is to be exercised by the High Court not capriciously but on sound judicial principles. Indeed, sub section (1) itself lays stress on this aspect of the matter by the use therein of the words "in its discretion". The non obstante clause may well have been designed to emphasise that the new right conferred by sub section (6) is a matter of right and does not rest entirely on mere discretion of the Court. Further the non obstante clause has a special significance even in a case where the accused person has already had an opportunity, by means of an appeal or revision filed by him in the High Court, to show cause against his conviction. Under sub section (1) there can be a revision only of the judgment or order of Criminal Courts inferior to the High Court and it does not sanction any revision of the judgment or order of the High Court itself. Therefore, where the accused person has unsuccessfully challenged the legality or propriety of his conviction in an appeal or revision application made by him before the High 103 Court he cannot again initiate a substantive application before the High Court under section 439(1) of the Code to re examine his conviction or sentence, for that will be to ask the Court to revise its own previous judgment or order, which the High Court cannot do under section 439(1). But suppose that the dismissal of the appeal or revision application made by the accused takes place in such circumstances that it still leaves it open to the State or other interested person to apply in revision for enhancement of the sentence and proceedings are initiated by the Court or the State for enhancement of sentence under section 439(1) and notice is issued on the accused under section 439(2), there is nothing in subsection (6) which, in terms, prevents the accused, in that situation, to again show cause against his conviction and sentence. The only argument that may, in those circumstances, be advanced with some semblance of plausibility is that to let the accused person to again challenge his conviction or sentence under sub section (6) is to cut across the provisions of sub section (1) and in effect to permit the accused to ask the High Court to revise its previous order, although no substantive application could be initiated by him under sub section (I). It may well be that the non obstante clause in sub section (6) was also designed to negative such an argument. Although ordinarily no substantive application can be initiated by an accused person, whose appeal or revision application has once been dismissed by the High Court. for revision or review of that order of dismissal, I can find no difficulty in construing and reading section 439(6) as giving to the accused person, who is faced with the risk of having his sentence enhanced, a second opportunity to do what he had previously failed to do. In other words, I see no incongruity in the Legislature giving a new right of revision to the accused person as a weapon of defence in the context of a new offensive taken by the State against him. Even if the act of showing cause under sub section (6) is to be regarded as a revision, there was nothing to prevent the Legislature, in the interest of the liberty of the 104 subject, to provide for a limited right of revision of the judgment or decision or order of the High Court itself. In my judgment that is what the Legislature has done by adding sub section (6) to section 439 and the non obstante clause is intended to meet and repel the objection that may possibly have been taken on the score that, under sub section (1), there can be no revision by the High Court of its own order. In my opinion, so long as proceedings may be taken against the accused person for enhancement of his sentence and so long as notice may be issued on him to show cause against enhancement, so long must he have, in showing cause against enhancement of sentence, the right, under sub section (6), to show cause against his conviction, irrespective of anything that may have happened previously. That is how I read the sub section. Indeed, in Emperor vs Mangal Naran(1) McLeod, C. J., went further and expressed the view that if, after an appeal had been heard on its merits and dismissed, a notice to enhance sentence was issued, the accused would still have the right to show cause against his conviction although any attempt to set aside his conviction would not have much chance of success. For reasons to be stated hereafter I would rather say that in such a situation no application for enhancement would lie at all and that consequently no question would arise of the accused person exercising his right under sub section (6). This aspect of the matter that I am trying to indicate and emphasise does not appear to have been sufficiently adverted to in the subsequent decisions of the different High Courts in India except in one decision of a Full Bench of the Lahore High Court. It will be convenient at this stage to refer to those decisions. In Emperor vs Jorabhai (supra) the accused person was convicted by the Sessions Judge. He preferred an appeal to the High Court and a Bench of the High Court dismissed the appeal on merits after full hearing of both sides after notice of appeal had been served on the State. After the delivery of the judgment an oral application was made to the Bench by (1) Bom. 105 the Government pleader for the enhancement of the sentence. Notice was issued to the accused under section 439(2) of the Code. The accused claimed the right, under sub section (6) to challenge his conviction. It was held by Fawcett and Madgavkar, JJ., that section 439(6) did not justify what would be tantamount to a rehearing of the appeal on merits. In the case of Ramlakhan Chaudhury vs Emperor(1) the accused 's appeal had been previously dismissed after a full hearing and following the decision in Emperor vs Jorabhai (supra) it was held that the accused could not, under section 439(6), challenge the correctness of his conviction for the second time while showing cause against enhancement of sentence. The same principle has been extended to cases where the appeal of the accused person had been previously dismissed by the High Court summarily but after hearing the accused or his advocate. (See Emperor vs Batubai(2), Emperor vs Haji Khanhamoo(3), King vs Nga Ba Saing (supra), Emperor vs Naubat(4) ), to cases where the jail appeal of the accused had previously been dismissed summarily without hearing the accused or his advocate (see Emperor vs Koya Partab(5), Emperor vs Abdul Qayum(6), Ramchand vs Hiralal(7) and State vs Bhavani Shankar(8)) and to cases of dismissal of revision petition filed by the accused after hearing the advocate (see In re Saiyed Anif Sahib(1), Emperor vs Sher Singh("), Crown vs Dhanna Lal (supra) ) and also to the case of an accused whose revision petition has been summarily dismissed (see Emperor vs Inderchand (supra)). It has been held that for the purposes of section 439(6) it makes no difference whether the judgment or order of dismissal was made by the High Court in appeal or in revision, or whether the appeal or revision was dismissed summarily or after a full hearing on notice to the State or other interested party and that any dismissal of the appeal or (1) Pat. 872.(6) A.I.R. 1933 All. 485. (2) A.I.R. 1927 Bom. 666.(7) A.I.R. 1942 All. 339. (3) A.I.R. 1936 Sind 233.(8) I.L.R. (4) I.L.R [1945] All. 527. (9) A.I.A. (5) Bom. 822.(10) Lah. 521, 14 106 revision prevents the accused person from availing himself of the benefit of section 439(6). In two cases Emperor vs Lukman(1) and Emperor vs Shidoo(2) the Sind Court took up an intermediate position that the accused person whose appeal had been dismissed summarily or after full hearing could not challenge his conviction for the second time except to the extent that the conviction was not founded on legal evidence or was manifestly erroneous. In other words, lie could only go up to what was ordinarily permitted in a revision. These two decisions appear to me, with respect,to be illogical and I need say no more about them. In the other cases noted above it has been quite definitely held that the accused person whose appeal or revision application has been previously dismissed, summarily or after a full hearing, is not entitled, when called upon to show cause why the sentence should not be enhanced, to question the correctness of his conviction for the second time. In other words, the previous dismissal, according to these decisions. , is an adjudication by the High Court of the correctness of his conviction and on the principle of finality of judgment embodied in sections 369 and 430 of the Code of Criminal Procedure that adjudication cannot be called in question under section 439(6). It has been pointed out in several cases (Crown vs Dhanna Lal (supra), Emperor vs Inderchand (supra) and King vs Nga Ba Saing (supra)) that subsection (6) opens with the words "notwithstanding anything contained in this section" and not with the words "notwithstanding anything contained in this Code" and from this the inference has been drawn that while the sub section is to operate notwithstanding the provisions of sub section (5) it cannot override the other provisions of the Code, and, therefore, the operation of sub section (6) is conditioned or control led by the principle of finality of judgment embodied in section 369 and section 430. Some learned Judges have expressed the view (see In re Saiyed Anif Sahib (supra), Crown vs Dhanna Lal (supra)) that the words ( 'unless he has already done so" are to be read in sec (1) A.I.R. 1927 Sind 39. (2) A.I.R. 1929 Sind 26. 107 tion 439(6), for this is to be implied from the presumption of finality. In some cases (see Emperor vs Sher Singh (supra) and Ram Lakhan vs Emperor (supra)) the decision has been placed also oil the ground of the inherent incapacity of one Judge of the High Court to reconsider the decision of another Judge of that Court. It is necessary to examine these grounds a little closely to ascertain their validity. In order to appreciate the true meaning and exact scope of sections 369 and 430 on which the argument of finality of judgment is founded it is necessary to keep in view the general scheme of the Code. Part VI of the Code deals with "Proceedings in Prosecutions". Chapter XV lays down the jurisdiction of the Criminal Courts in Inquiries and Trials. I pass over Chapters XVI to XVIII. Chapter XIX prescribes rules for the framing and joinder of charges. Chapters XX to XXIII deal with different kinds of trials, e.g., trial of summons cases, warrant cases, summary trials and trials before High Courts and Courts of Session. Chapter XXIV contains general provisions as to Inquiries and Trials. Mode of taking and recording evidence is prescribed by the sections grouped together in Chapter XXV. then comes Chapter XXVI which is headed "Of the Judgment". Section 369 is one of the sections included in this chapter. Chapter XXVII provides for the submission of death sentences for the confirmation of the High Court. Rules relating to the execution, suspension, remission and commutations of the sentences are to be found in Chapters XXVIII and XXIX. Part VI ends with Chapter XXX which is not material for our present purpose. Part VII deals with "Appeal, Reference and Revision". Chapter XXXI is concerned with Appeals and we find section 430 in this chapter. Chapter XXXII provides for reference and revision, section 439 being one of the sections included in this chapter. In view of the scheme summarised above there can be no manner of doubt that the provisions of the sections collected in Chapter XXVI are concerned with judgments pronounced by the trial Court. This conclusion is certainly reinforced by the language of some 108 of these sections. Thus section 366 which is the very first section in this chapter refers to "The judgment in every trial in any Criminal Court of original jurisdiction". Section 367 provides what must be contained in "every such judgment", that is to say judgment in an original trial. Section 369 runs as follows: "369. Court not to alter Judgment. Save as otherwise provided by this Code or by any other law for the time being in force or, "in the case of a High Court by the Letters Patent or other instrument constituting such High Court", no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error". The opening words "save as otherwise provided by this Code. . constituting such High Court" were added by section 119 of the Amending Act XVIII of 1923 and were further adapted by Adaptation of Laws Order, 1950. There can be no question that the finality embodied in this section is only in relation to the Court which pronounces the judgment, for it forbids the Court, after it has signed its judgment, to alter or review the same. In other words, after pronouncing the judgment the Court that pronounces it becomes functus officio. There is indication in the Code itself that the purpose of section 369 is not to prescribe a general rule of finality of all judgments of all Criminal Courts but is only to prescribe finality for the judgment of the trial Court so far as the trial Court is concerned. That this section does not,. by itself, apply to the judgment of an appellate Court is quite obvious, because if it did, there would have been no necessity for enacting section 424 specifically making the rules contained in Chapter XXVI, which includes section 369, applicable to the judgment of any appellate Court other than High Court, nor for again prescribing by section 430 a rule of finality for judgments and orders passed by an appellate Court. It, therefore, follows that while, subject to the other provi sions of the Code or any other law and of the Letters Patent, the finality of section 369 attaches to the judgments pronounced by all trial Courts including the High Court in the exercise of its original criminal 109 jurisdiction it certainly has no bearing on the question of finality of appellate judgments which is specifically provided by section 430 of the Code. Again, the rule of finality embodied in section 369 cannot, in terms, apply to the orders made by the High Court in exercise of its revisional jurisdiction, for section 442 of the Code which requires the result of the revision proceedings to be certified to the Court by which the finding, sentence or order revised was recorded or passed refers to it as its "decision or order" and not "judgment". It is significant that section 425 which requires the result of appeal to be certified to the lower Court refers to it as its "judgment or order". All these considerations herein alluded to quite clearly establish that section 369 cannot in any manner con trol section 439(6). In any case, section 369 is "subject to the other provisions of the Code" and I see no reason why section 439(6) should not be regarded as one of such other provisions. It cannot be overlooked that the words "subject to the other provisions of the Code, etc." were introduced into section 369 at the same time as sub section (6) was added to section 439. As I read the new sub section, it is a substantive statutory right conferred on the subject and full effect should be given to it unless there is any in superable difficulty in the way of doing so. If section 369 were susceptible of as wide a meaning as is read into it,, namely, that it applies to all judgments of all Courts, original, appellate or revisional, I would, in that case, bold that that meaning must be taken as cut down, by reason of the words "subject to the other provisions of the Code, etc. " by the mandatory provision& of section 439(6). In other words, section 439(6) must be read as controlling section 369 rather than the other way about. Finally, section 369 being subject to the other provisions of the Code must be read as subject to section 430 and as the finality enshrined in the latter section does not attach to decisions or orders made in revision by reason of Chapter XXXII being expressly excepted from its operation, the rule of finality embodied in section 369, even if it be as wide as it is contended to be, 110 cannot affect cases provided for in Chapter XXXII. I now pass on to section 430 which is also relied on as furnishing a principle of finality which is supposed to control the operation of section 439 6). Section 430, in terms, applies to "judgments and orders" passed by an appellate Court. It has no application to "decisions or orders" made by the High Court in revision. It has been contended that the exception made in section 430 in respect of cases provided for in Chapter XXXII only exempts the judgments or orders of an appellate Court other than a High Court from the rule of finality embodied in section 430, because they are made revisable by the High Court under section 439(1). Section 439(1) does not contemplate or permit judgments or orders made by the High Court in exercise of its original or appellate criminal jurisdiction to be revised by the High Court. As, therefore, the appellate judgments or orders of the High Court cannot, under section 439(1), be made the subject matter of any revision application, such appellate judgments or orders did not fall within the exception made in section 430 and were accordingly left subject to the rule of finality embodied therein. Two answers occur to me. If the effect of the new subsection (6), as I have already explained, is to confer a new right on an accused person notwithstanding anything contained in section 439(1), that is to say, if sub section (6) is read, as I think it should be, as a statutory provision expressly making the judgment or decision or order of the High Court passed in exercise of its appellate or revisional jurisdiction subject, for the purpose of the protection of an accused person whose appeal or revision had been previously dismissed, to re examination by the High Court only as and when he is subsequently faced with an application for enhancement of sentence, then such judgment, decision or order of the High Court does, as a result of section 439(6), become the subject matter of a case provided for in Chapter XXXII of the Code. In other words, the scope of Chapter XXXII having been enlarged by the addition of sub section (6) to section 439, the scope of the exception to sec 111 tion 430 must also stand enlarged so as to include within the exception whatever, after the amendment of section 439, may come within Chapter XXXII and, therefore, cases now coming within that Chapter must stand free from the rule finality embodied in section 430. The other answer is to be found in two of the decisions of the Allahabad High Court, namely Emperor vs Abdul Qayum (supra) and Ram Chand Hiralal(1) where it has been field that section 430 by V. its own terms saves the revisional power of the High Court to enhance the sentence. In each of these cases the jail appeal filed by the accused had been dismissed by the High Court summarily. If the rule of finality of appellate judgments does not attach to the summary dismissal of the jail appeal by the High Court so as to prevent the State from invoking its revisional power to enhance the sentence, surely the accused 's right to show cause against his conviction under section 439 (6), which is consequential and arises only upon a rule for enhancement being issued under section 439(2) and is, therefore, a part of the revisional proceedings for enhancement of sentence, must, on a parity of reasoning be also free from the same principle of finality. It, therefore, follows that section 434(6) is not, in terms, controlled by section 369 or section 430. Whether the sub section is controlled by the general principle of finality of judgments and if so to what extent are different questions which will be discussed later. The second ground on which some of the decisions rest, namely, the inherent incapacity of one Judge of the High Court to reconsider the decision of another Judge of the High Court may easily be disposed of The theory of inherent incapacity must give way to the statutory capacity conferred by section 439(6). If on a true construction a statute states, expressly or by necessary intendment, that one Judge or one Bench shall have jurisdiction and power to decide something, the theory of inherent incapacity of such Judge or Bench cannot be invoked to prevent the exercise of such jurisdiction and power merely on (1) A.I.R. 1942 All. 112 the ground that the decision which may be arrived at in exercise of this new jurisdiction or power may run counter to the previous decision arrived at by another Judge or Bench in exercise of another jurisdiction or power. I see no reason why section 439(6) may not be read as a provision which, by necessary implication, enables the High Court to re examine its own previous order on the happening of certain contingencies, namely, upon the accused person, whose appeal or revision has been dismissed, being faced with the risk of having his sentence enhanced and a notice being issued to him for enhancement. To reinforce the argument that section 439(6) is controlled by sections 369 and 430 reference has been made to section 423(2) and it has been contended, on the authority of various decisions, that the right given by section 439(6) is not absolute but is controlled by the provisions of section 423(2) which lay down some limitations in the matter of appeal from convictions in a jury trial. Even on that topic some learned Judges have taken divergent views. It is not necessary, on this occasion, to express any opinion on that question and I reserve my right to examine the position as and when an occasion may arise in future. Even if section 439(6) is controlled by section 423(2), that circumstance certainly does not indicate when and under what circumstances the right under section 439(6) may be availed of. In any case, that consideration has no bearing on the argument of finality of judgments sought to be founded on sections 369 and 430. It will be convenient at this stage to refer to the decision of a Full Bench of the Lahore High Court in Emperor vs Atta Mohammad(1) and to deal with the argument founded on and developed from some of the reasonings adopted by the learned Judges constituting that Full Bench. In that case the revision application of the accused had been dismissed in limine by the High Court. Subsequently the Crown applied for enhancement of sentence. Notice having been issued under sub section (2) of section 439 the accused (1) Lah. 113 person claimed the right, under sub section(6), to show cause against his conviction in spite of the fact that his revision application had been dismissed. The Advocate for the Crown relied on the cases referred to above and contended that the order of dismissal of the revision application by the High Court was final as regards the correctness of the conviction, that that order could not again be revised by the High Court, that the accused was no longer entitled to challenge his conviction and that it made no difference that his revision petition had been dismissed in limine. The Full Bench overruled the earlier decision of the Court in Crown vs Dhanna Lal (supra) and held that the accused was, in the circumstances of the case, entitled to show cause against his conviction, notwithstanding the fact that his application for revision had been dismissed in limine. The reasoning adopted by Blacker, J., was shortly as follows: That an order dismissing a revision petition in limine is an order made under section 435 and not under section 439; that such an order is not a judgment and, therefore, the principle of finality embodied in section 369 does not apply to such an order, because such a dismissal only meant that the Judge saw no adequate grounds disclosed in the petition or on the face of the judgment for proceeding any further; that, in the picturesque language of the learned Judge, in such a dismissal "there is no finding or decision unless it can be called a decision to decide to come to no decision"; that the jurisdiction exercised by the Court under section 439(6) was appellate jurisdiction and that an order of acquittal thereunder did not amount to a review of an order of dismissal under section 435; and finally that if the order under section 435 was a judgment or if an order of acquittal under section 439(6) was a review of such judgment, such review was not barred by section 369, because of the saving provisions with which the section begins. Mahajan, J., as he then was, put in the forefront of his judgment the view that section 439(6) which was introduced by amendment in 1923 gave a new and unlimited right 15 114 to the subject; that the Judge hearing the application for enhancement was bound to go into the facts to satisfy himself as to the correctness of the conviction; that the exercise of revisional jurisdiction was a mere matter of favour and a dismissal in limine of such application amounted only to a refusal to look into the record and was in no sense a judgment. Ram Lall, J., did not deliver any separate judgment but concurred generally with the other learned Judges. It will be noticed that this decision of the Lahore High Court rests mainly on two grounds, namely, (1) that in a dismissal of a revision application in limine there is no finding or decision at all and that it is nothing more than a refusal to send for the records or to look into the matter and is, therefore, not a judgment. , and (2) that, in any case, section 439(6) gives a new statutory right to the accused person to challenge the legality or propriety of his conviction, although his previous application for revision of the order of the lower Court had been dismissed in limine and that such a review of that dismissal order is not barred by section 369 because of the saving provision at the beginning of that section. The Full Bench expressly declined to express any opinion as to the effect of dismissal of an appeal on the right given by sub section (6). The principle of the first ground of the Lahore Full Bench decision has, however, been extended by the Rajasthan High Court in ' The State vs Bhawani Shankar (supra) to a case where the respondent 's jail appeal had been summarily dismissed. According to Wanchoo, C.J., the accused, whose jail appeal had been dismissed summarily, was in the same position as the accused, whose revision petition had been dismissed in limine, for he too could not be said to have had an opportunity of showing cause against his conviction. The learned Chief Justice, however, did not desire to go further and expressed the view that if an appeal were dismissed summarily but after hearing the party or his pleader the accused could not claim to have a second opportunity to challenge his conviction under section 439(6), because in that case he had been heard and, therefore, had had an oppor 115 tunity to show cause against his conviction when his appeal had been summarily dismissed. It will be recalled that in Emperor vs Jorabhai supra) and the other cases which followed it it was said that for the purposes of determining the applicability of section 439(6) it made no difference in principle whether the proceeding filed by the accused which had been dismissed was an appeal or a revision or whether the dismissal was summary or after a full hearing and that in none of such cases could the accused person claim a second opportunity to question the legality or propriety of his Conviction when he was subsequently called upon to show cause why the sentence passed on him should not be enhanced. In the Lahore Full Bench case and the Rajasthan case referred to above a distinction has, however, been made between a summary dismissal and a dismissal after a full hearing of the appeal or revision filed by the accused. In my judgment there is a substantial distinction between these two kinds of dis missals as regards their effect on the rights of accused persons as I shall presently indicate. I am, however, unable to accept the argument adopted by the Lahore Full Bench that a summary dismissal of a revision application filed by the accused must be regarded as an order made under section 435 and not one under section 439, that such a summary dismissal is nothing more than a refusal on the part of the High Court to go further or to look into the application and that in such a dismissal there is no finding or decision at all. Far less am I able to accede to the proposition that a summary dismissal of a jail appeal also stands on the same footing. Sections 421, 435 and 439 undoubtedly vest a very wide discretion in the Court. Discretion, as Lord Halsbury, L.C., said, in Sharp vs Wakefield(1), means sound discretion guided by law. It must be governed by rules of reason and justice and not according to private opinion; according to law and not by humour or caprice. It must not be arbitrary, vague and fanciful but must be legal and regular. This discretion is given to the (1) at p. 179. 116 High Court for the purpose of dealing with and disposing of the proceeding brought before it and not for not deciding it. The primary and paramount duty of the Court is to decide the appeal or revision and it is to exercise its discretion in so deciding it. In deciding the appeal or revision the High Court may choose which of its powers it will exercise if the circumstances of the case call for such exercise. In a clear case, apparent on the grounds of appeal or revision or on the face of the judgment appealed from or sought to be revised it may come to the conclusion that the case has no merit and does not call for the exercise of any of its powers in which case it may dismiss it summarily. If, however, it has any doubt, it may call for the record or may admit it and issue notice to the respondent and decide it after a full hearing in the presence of all parties. But decide it must at one stage or the other. The discretion conferred on the High Court does not authorise it to say that it will not look at the appeal or the revision. The court 's bounden duty is to look into the appeal or revision and decide it, although in the process of arriving at its decision it has very wide discretion. When the Court summarily dismisses an appeal whether without hearing the accused or his pleader as in the case of a jail appeal or after hearing the accused or his pleader but before issuing any notice to the respondent as in an appeal presented by the accused or his pleader, the Court does decide the appeal. It is indeed a very serious thing to say that sections 421, 435 or 439 give the Court a discretion not to decide the appeal or revision brought before it and I, for one, am not prepared to countenance and much less encourage such an idea. In my judgment a summary dismissal of an appeal or revision does involve an ad judication by the High Court just as a dismissal after a full hearing does. The only difference, as we shall presently see, is as to the respective, nature, scope and effect of the two adjudications. It has been said that when an appeal or revision is dismissed after a full hearing by the High Court the judgment of the lower Court merges in the High Court 117 judgment and the High Court judgment replaces the judgment of the lower Court and becomes the only operative judgment but that when the appeal or revision is summarily dismissed by the High Court there is, in such a dismissal, no finding or decision which can replace the judgment of the lower Court. it is, therefore, said that there can be no showing cause against his conviction under sub section (6) in the first case, for it will involve a revision of the High Court 's decision but the position will be otherwise in the second case where the dismissal was summary. This argument appears to me to be untenable and fallacious. Section 425 of the Code requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it must certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed and that that Court shall thereupon make such orders as are conformable to the judgment or order of the High Court and that,, if necessary, the record shall be amended in accordance therewith. Likewise, section 442 requires that when a case is revised under Chapter XXXII by the High Court, it shall, in the manner provided by section 425, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed and that that Court shall thereupon make such orders as are conformable to the decision so certified and that, if necessary, the record shall be amended in accordance therewith. This certificate is sent in every case, whether the appeal or revision is disposed of summarily or after a full hearing. Where an appeal or revision is disposed of after a full hearing on notice to the respondent and allowed wholly or in part it becomes ex facie obvious that the judgment appealed against or sought to be revised has been altered by the judgment or decision of the High Court on appeal or revision and a note is made in the record of this alteration. But when an appeal or revision is dismissed after full hearing and the sentence is maintained there is outwardly no change in the record when the certificate is sent by the High Court but nevertheless there is an adjudica 118 tion by the High Court. In the first case it is judgment of acquittal or reduction of sentence and in the second case it is a judgment of conviction. Likewise, when an appeal or revision is summarily dismissed, such dismissal maintains the judgment or order of the lower Court and a note is made of such dismissal in the record and in the eye of the law it is the judgment of the High Court that prevails. To the uninstructed mind the change may be more easily noticeable in the first case than in the other two cases but on principle there is no difference. I can see no reason for holding that there is a merger or replacement of judgment only in the first two cases and not in the last one. In my opinion, it makes no difference whether the dismissal is summary or otherwise, and there is a judgment of the High Court in all the three cases. It is, at once urged that if the summary dismissal of an appeal or revision is also a judgment then the rule of finality prescribed by sections 369 and 430 will at once apply to it and a cunning accused may by putting up an obviously untenable appeal or revision and procuring an order of summary dismissal of it, prevent the State or any other interested party from making an application for enhancement of the sentence. The apprehension, to my mind, is unfounded for reasons more than one. When an appeal or revision is filed by an accused person he sets out his grounds in detail, challenging both his conviction and sentence. From the very nature of things he does not raise any question of enhancement of the sentence. At that stage no notice or rule having been issued the respondent is not before the Court to raise the issue of enhancement. So the summary dismissal only confirms the conviction and decides that the Court sees no ground for reducing the sentence. It is in no sense a decision that the sentence should not be enhanced for that issue was not before the Court at all and so it has been said, I think rightly, in several cases, [e.g. In re Syed Anif Sahib (supra)], Emperor vs Jorabhai (supra) and Emperor vs Inderchand (supra)]. The fact the High Court simply dismisses the appeal or revision summarily without issuing the notice on 119 the accused under section 439(2) for showing cause against enhancement is a clear indication that the High Court has not considered the question of enhancement. It is true that the rule of finality prescribed by section 430 applies to the appellate judgment of the High Court, subject to the exception regarding cases falling within Chapter XXXII. It is also true that although the revisional power is not expressly or in terms controlled either by section 369 or section 430, the general principle of finality of judgments attaches to the decision or order of the High Court passed in exercise of its revisional powers. But this finality, statutory or general, extends only to what is actually decided by the High Court and no further. When an appeal or revision by the accused is allowed after a full hearing on notice to the respondent the conviction and sentence must be regarded as having been put in issue and finally decided. When the accused person in the presence of the State claims an acquittal or reduction of his sentence, the State ought then and there to apply for enhancement of sentence and its failure to do so cannot but be regarded as abandonment of the claim. The acceptance by the High Court of the appeal or revision on notice to the respondent and after a full hearing is, therefore, nothing less than a judgment of acquittal or a judgment for reduction of sentence. On the other hand, the dismissal by the High Court of an appeal or revision after such a full hearing amounts to a judgment of conviction. In both cases the judgment is final as regards both the accused and the respondent as regards the conviction as well as the sentence in all its aspects, namely, reduction or enhancement. In that situation no further question of revision can arise at the instance of either party. There can be no further application by the accused challenging his conviction or sentence. Nor can there be any further application by the State for enhancement of the sentence, for that question could have been and should have been raised when the accused person in the presence of the respondent prayed for acquittal or reduction of sentence and not having then been raised it cannot be raised 120 subsequently and consequently no question can arise for the exercise of right by the accused under section 439(6). This result is brought about not by any technical doctrine of constructive res judicata which has no application to criminal cases but on the general principle of finality of judgments. The summary dismissal of an appeal or revision by the accused, with or without bearing him or his pleader but without issuing notice to the respondent is, so far as the accused is concerned, a judgment of conviction and confirmation of his sentence and he can no longer initiate revision petition against his conviction or sentence. The judgment or decision is a final judgment qua the accused person, for otherwise he could go on making successive appeals or revision applications which obviously he cannot be permitted to do. But the State or other interested person who has not been served with any notice of the appeal or revision cannot be precluded, by the summary dismissal of the accused 's appeal or revision, from asking for enhancement, for in that situation the State or the complainant not being present the question of enhancement was not in issue before the Court and the summary dismissal cannot be regarded as an adjudication on the question of enhancement. That question not having been put in issue and not having been decided by the High Court, the finality attaching to the summary dismissal as against the accused does not affect the position. This, I apprehend, is the true distinction between a summary dismissal of an appeal or revision and a dismissal of it after a full bearing. The cases of Emperor vs Jorabhai (supra) and the other cases following it overlooked this vital distinction as also its effect on the new statutory right conferred on the accused person by section 439(6) and they cannot be accepted as correct decisions. In those cases where the appeal or revision filed by the accused had been dismissed after a full hearing in the presence of the State and where there was no application by the State or other interested party for enhancement of sentence during the pendency of that appeal or revision it should have 121 been held that the dismissal must be regarded as a judgment which was final as against both parties on both points, conviction and sentence and there could be no further application for the enhancement of sentence and consequently no question of the accused having a further opportunity of showing cause against his conviction could arise. In the cases where the appeal or revision filed by the accused had been summarily dismissed without notice to the respondent, it should have been held that although such dismissal was final as against the accused it did not preclude the State or the complainant, who was not a party to the dismissal, from applying for enhancement of sentence and that as soon as an application for enhancement was made subsequently and a notice was issued to the accused, the latter, faced with the risk of having his sentence enhanced, at once became entitled, under section 439(6), in showing cause against the enhancement of sentence, also to show cause against his conviction. The Lahore Full Bench case has decided, inter alia that while the dismissal of the accused 's revision application in limine does not prevent the State from subsequently applying for enhancement of the sentence, section 439(6) gives the accused a fresh right to challenge his conviction when a notice for enhancement is issued to him. That part of the decision may well be sustained on this ground as explained above but, with great respect, I do not agree with their view that the accused in that case had the second right because the summary dismissal of his revision was not a judgment at all or was not final even as regards him. The Rajasthan High Court 's decision in so far as it extended the principle to the dismissal of a jail appeal without hearing the accused or his pleader under section 421 may also be supported on the ground I have mentioned. A Bench of the Lahore High Court in The Crown vs Ghulam Muhammad(1) has held that where the accused 's revision application bad been dismissed on notice to the respondent and after a full hearing and the State sub. (1) Pak. 16 122 sequently applied for enhancement of sentence, the accused person could again show cause against his conviction. With great respect I think that the better reasoning would have been to say that such a dismissal of the revision after a full hearing, was a judgment final against both parties on both points of conviction and sentence and that as the State did not, during the pendency of that revision, apply for revision it had. , after that dismissal which became a final judgment, no right subsequently to apply for enhancement of sentence and consequently no notice under section 439(2) could issue and no question could arise for the accused person asserting his right under section 439(6). For reasons discussed above I have to hold that the summary dismissal of the appeal filed by the appellant in the High Court was a judgment of conviction by the High Court and was final so far as the appellant was concerned and he could not initiate any further revision application either against his conviction or for reduction of sentence after that dismissal but that it was not final so far as the State was concerned and the State was entitled to apply in revision for enhancement of sentence. For reasons already stated I must further hold that as soon as the State applied for enhancement and a notice was issued on the appellant he became entitled under section 439(6) to again challenge his conviction. As I have said this sub section gives a new and valuable weapon of defence to an accused person who is placed in fresh jeopardy by reason of an enhancement application having been filed against him and a notice to show cause having been issued to him. I find nothing in sections 369 and 430 to cut down that right. The previous dismissal of his appeal had no bearing on the new situation created by the enhancement application which the Legislature, in enacting section 439(6), may well and properly have thought to be sufficiently serious to deserve and require a thorough re examination by the High Court of the conviction itself in this new context. There is nothing in principle that I can see which should prevent that sub sec 123 tion from giving a fresh right to the accused whose appeal or revision has been summarily dismissed to defend himself by challenging his conviction when a notice for enhancement is issued to him. In my judgment, for the reasons stated above, this appeal should be allowed and the matter should go back to the High Court so that the State 's application for enhancement may be dealt with according to law after giving the appellant an opportunity to show cause against his conviction. BHAGWATI J. delivered the Judgment of Bhagwati and Imam, JJ. This appeal on certificate under article 134(1)(c) of the Constitution raises an important question as to the right of a convicted person to show cause against his conviction while showing cause why his sentence should not be enhanced under section 439(6) of the Criminal Procedure Code. The appellant was charged before the Presidency Magistrate, 13th Court, Bombay with having committed an offence punishable under section 66(b) of the Bombay Act XXV of 1949 inasmuch as he was found in possession of one bottle of Mac Naughtons Canadian Whisky (Foreign) containing 8 drams valued at Rs. 20. He was convicted by the learned Presidency Magistrate and was sentenced to imprisonment till the rising of the Court and a fine of Rs. 250 in default rigorous imprisonment for one month. He presented his petition of appeal to the High Court of Judicature at Bombay through his advocate. This petition of appeal was however summarily dismissed by the High Court after hearing the advocate on the 19th January 1953. On the 18th May 1953 a criminal revision application for enhancement of sentence was filed by the State and a rule was granted by the Vaca tion Judge on the 12th June 1953. This rule came for hearing and final disposal before a Division Bench of the High Court on the 26th August 1953. After hearing the Government Pleader in support of the rule the Court was not satisfied that there was a case for enhancement of sentence. The learned counsel for the Appellant then wanted to argue for an acquittal 124 relying upon the provisions of section 439(6) of the Criminal Procedure Code. Relying however upon the decisions of the Bombay High Court in Emperor vs Jorabhai(1), and Emperor vs Koya Partab (2) , as also Emperor vs Inderchand(3), the Court did not allow the learned counsel to argue that the order of conviction itself could not be sustained. The application for enhancement of sentence was thereupon dismissed and the rule was discharged. The appellant applied for leave to appeal to this Court on the 15th October 1953. The Division Bench of the High Court, hearing the application stated the point which arose for determination as under: "Whether a summary dismissal of an appeal preferred by an accused person precludes him from taking advantage of the provisions of section 439(6) of the Criminal Procedure Code, when he is subsequently called upon to show cause why the sentence imposed upon him should not be enhanced". It pointed out that the consistent view taken by the Bombay High Court in this matter had been accepted by the Allahabad and the Patna High Courts in Emperor vs Naubat(4) and Ramlakhan Chaudhury vs Emperor(1) but the view taken by the Lahore High Court in Emperor vs Atta Muhammad(1), though not directly in point prima facie lent support to the contention urged by the learned counsel for the Appellant. A certificate was therefore granted to the Appellant that it was a fit case for appeal to this Court. It will be convenient at this stage to briefly indicate the relevant sections of the Criminal Procedure Code which will fall to be considered. Section 417 provides for an appeal on behalf of the State Government to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Sections 419, 420, 421, 422 and 423 prescribe the procedure in cases of appeals. Section 419 deals with petitions of appeal presented by the appellant or his pleader and section 420 with petitions of appeal (1) Bom. (2) (3) (4) I.L.R. 1945 Allahabad 527. (5) Patna 872. (6) Lahore 391 (F.B 125 presented when the appellant is in jail. Section 421 provides for summary dismissal of these appeals if the Appellate Court considers that there is no sufficient ground for interfering, save that no appeal presented by the appellant or his pleader is to be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same, and the Court might also before dismissing an appeal summarily call for the record of the case though not bound to do so. If the Appellate Court does not dismiss the appeal summarily, notice of appeal is to be given to the appellant or his pleader or to such officer as the State Government may appoint in this behalf, under section 422 and the powers of the Appellate Court in dismissing the appeal are laid down in section 423, the only relevant provision for the present purpose being that in an appeal from a conviction the Appellate Court might with or without the reduction in sentence and with or without altering the finding alter the nature of the sentence but. . . . . not so as to enhance the same. Section 430 incorporates the rule as to the finality of the Judgments and orders passed by an Appellate Court upon appeal except in cases provided for in section 417 which relates to appeals on behalf of the Government in cases of acquittal and Chapter XXXII which relates to reference and revision. Section 435 deals with the exercise of the revisional powers inter alia by the High Court to call for the records of the inferior criminal courts for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Courts. Section 438 provides for a reference by the lower Appellate Court to the High Court recommending that a sentence which has been imposed on a convicted person be reversed or altered. Section 439 with which we are immediately concerned is couched in the following terms: (1)In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its 126 knowledge the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2)No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (5)Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6)Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction. Section 440 lays down that no party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision provided however that the Court may if it thinks fit, when exercising such powers hear any party either personally or by pleader and nothing in that section shall be deemed to affect section 439(2) above. A person convicted of an offence may file in the High Court a petition of appeal or an application for revision challenging his conviction and the sentence passed upon him. The petition of appeal may be presented by him from jail or may be presented by him to the High Court in person or through his pleader. An application for revision also may be similarly presented by him to the High Court. A petition of appeal presented by him from jail or presented by him in person or through his pleader as aforesaid may be summarily dismissed by the High Court after perusing the same if it considers that there is no sufficient ground for interfering, the latter after giving him or 127 his pleader a reasonable opportunity of being heard in support of the same and in appropriate cases after calling for the record of the case. A notice of appeal may issue only if the High Court does not dismiss the appeal summarily and in that event only there would be a full hearing of the appeal in the presence of both the parties. In the case of an application for revision also the same may be dismissed summarily and without even hearing the party personally or by pleader. If however the Court deems fit to issue notice to the opposite party there would be a full hearing in the presence of both the parties. These proceedings would normally be concerned with the question whether the conviction can be sustained and the sentence passed upon the convicted person be set aside or reduced. There would be no question here of the enhancement of the sentence. The question of enhancement of the sentence would only arise when the High Court in exercise of its revisional jurisdiction. under section 439(1) thought it necessary to issue a notice for enhancement of sentence to the convicted person. Even though the Court exercising its powers of revision would not be bound to bear any party personally or by pleader no order under section 439(1) enhancing the sentence could be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. In that event simultaneously with the opportunity given to him under sub section (2) of showing cause why his sentence should not be enhanced he would be entitled in showing cause also to show cause against his conviction by virtue of the provision of section 439(6). The exercise of this right of also showing cause against his conviction may arise in 4 different types of cases: (1) Where his petition of appeal has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be; (2) When his appeal has been dismissed after a full hearing following upon the notice of appeal being issued to the opposite party; 128 (3)When his application for revision has been summarily dismissed either without hearing, him or after hearing him or his pleader as the case may be; and (4)Where his application for revision has been dismissed after a full beating following upon a notice issued to the opposite party. When the High Court issues a notice for enhancement of sentence it is exercising its revisional jurisdiction and the question that arises for consideration is whether in one or more of the cases above referred to the High Court has jurisdiction to issue the notice of enhancement of sentence and the convicted person is entitled while showing cause why his sentence should not be enhanced also to show cause against his conviction. The view taken by the Bombay High Court in the cases noted above has been that in all the four cases mentioned above the accused has had an opportunity of showing cause against his conviction and that he is not entitled to a further or second opportunity of doing so while showing cause why his sentence should not be enhanced. It has not made any dis tinction between the exercise of appellate or revisional jurisdiction by the High Court nor between appeals or revision applications dismissed summarily or in limine and appeals or revision applications dismissed after a full hearing in the presence of both the parties. It has also extended the same principle to a reference made under section 438 and an order passed by the High Court thereupon "No order on reference", without even issuing notice to the applicant at whose instance the Sessions Judge made the reference. (Vide Emperor vs Nandlal Chunilal Bodiwala(1)). The Allahabad and the Patna High Courts have followed this view of the Bombay High Court in the decisions above referred to and the Lahore High Court in Emperor vs Dhanalal(2) also followed the same. But this decision of the Lahore High Court was overruled by a Special Bench of that Court in Emperor vs Atta (1) [1945] 48 Bombay L.R. 41 (F.B.). (2) Lahore 241. 129 Mohammad(1). The Special Bench held that the exercise of revisional jurisdiction by the High Court is entirely discretionary, that an application for revision is entertained as a matter of favour, that no party is entitled to be beard either himself or by pleader when the Court in, Exercising its revisional jurisdiction and that therefore a dismissal of an application for revision in limine tantamounts to a refusal by the Court to exercise its revisional jurisdiction and the convicted person under those circumstances is at all events entitled while showing cause why his sentence should not be enhanced also to show cause against his conviction. It went to the length of holding that section 439(6) confers upon the convicted person an unfettered and unlimited right of showing cause against his conviction, which right cannot be taken away unless there is a judgment in rem which only would operate as a bar to the decision of the same matter when it arises in the exercise of what is in effect the exercise of the ordinary appellate jurisdiction. The Rajasthan High Court in State vs Bhawani Shankar(2) has drawn a distinction between cases where the accused has not been heard at all and given no opportunity to show cause against his conviction his jail appeal having been dismissed under section 421 or his revision application having been dismissed without hearing him and cases where he has already been heard and given an opportunity to show cause against his conviction whether it be in appeal or in revision and whether his dismissal is summary or on the merits and held that in the former cases he is entitled to ask the Court to hear him and thus allow him to show cause against his conviction under section 439(6) if a notice of enhancement is issued to him. The principle as to the finality of criminal judgments has also been invoked while considering this question. This principle has been recognised by this Court in Janardan Reddy & Others vs The State of (1) Lah. 391 (F.B.). (2) I.L.R. 17 130 Hyderabad & Others(1) at page 367 where Fazl Ali, J. observed: "It is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments, which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision. Section 430, Criminal Procedure Code. . . . . . . has given express recognition to this principle of finality by providing that "Judgments and orders passed by an Appellate Court upon appeal shall be final, except in cases provided for in section 417 and Chapter XXXII" Section 417 relates to appeals on behalf of Government in cases of acquittal by any Court other than a High Court and Chapter XXXII relates to reference and revision which also are powers exercised by the High Court over the judgments or orders of inferior Courts, thus excluding from the purview of this exception all judgments and orders passed by the High Court as an Appellate Court. Section 430 does not in terms give finality to the judgments of the High Court passed in exercise of its revisional jurisdiction, but the same principle would apply whether the High Court is exercising its appellate jurisdiction or its revisional jurisdiction, because in either case the High Court which is the highest Court of Appeal in the State would have pronounced its judgment,which judgment would replace the judgment of the lower Court and would be final. Even while exercising its revisional powers under section 439 the High Court exercises any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 and it is in effect an exercise of the appellate jurisdiction though exercised in the manner indicated therein. This principle of finality of criminal judgments therefore would equally apply when the High Court is exercising its revisional jurisdiction. Once such a judgment has been pronounced by the High Court either in the exercise of its appellate or its revisional jurisdiction no review or (1) ; 131 revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable even the High Court to review the same or to exercise revisional jurisdiction over the same. The judgment of the High Court would replace that of the lower Court which would no longer be subsisting but would be replaced by the High Court judgment and thus it is only the High Court judgment which would be final and would have to be executed in accordance with law by the Courts below. Section 425 requires that whenever a case is decided on appeal by the High Court it should certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed and the Court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court and, if necessary, the record shall be amended in accordance therewith. Section 442 similarly pro vides that when a case is revised under Chapter XXXII by the High Court it shall in the same manner certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed and the Court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified and, if necessary, the record shall be amended in accordance therewith. These provisions are enacted because the High Court itself does not execute or carry into effect the sentences or orders passed against the convicted persons but the work of such execution has necessarily to be done in conformity with the sentences or orders passed by the High Court by the Courts which originally passed the same. Nevertheless the latter Courts execute or carry into effect the sentences or orders which are ultimately passed by the High Court and are invested with finality. In these cases there is no occasion at all for the exercise of the revisional powers by the High Court under section 439(1) of the Criminal Procedure Code. That jurisdiction can only be exercised by the High Court when the record of the proceedings of Subordinate Courts has been called for 132 by itself or the case has been reported to it for orders or has otherwise come to its knowledge and the High Court suo Motu on the application of the party interested thinks it fit to issue a notice for enhancement of sentence. This is a clear exercise of the revisional jurisdiction of the High Court and can be exercised by it only qua the judgments of the lower Courts and certainly not qua its own judgments which have replaced those of the lower Courts. The Criminal Procedure Code unlike the Civil Procedure Code does not define "judgment" but there are observations to be found in a Full Bench decision of the Madras High Court in Emperor vs Chinna Kaliappa Gounden and another(1), discussing the provisions of section 366 and section 367 of the Criminal Procedure Code and laying down that an order of dismissal under section 203 is not a judgment within the meaning of section 369. The principle of autrefois acquit also was held not to apply as there was no trial when the complaint was dismissed under section 203 with the result that the dismissal of a complaint under section 203 was held not to operate as a bar to the rehearing of the complaint by the same Magistrate even when such order of dismissal had not been set aside by a competent authority. Section 366 lays down what the language and contents of a judgment are to be and section 367 provides that the judgment is to contain the decision and the reasons for the decision and unless and until the judgment pronounced by the Court complied with these requirements it would not amount to a judgment and such a judgment when signed would not be liable to be altered or reviewed except to correct a clerical error by virtue of the provisions of section 369 save as therein provided. These observations of the Madras High Court were quoted with approval by Sulaiman, J. in Dr. Hori Ram Singh vs Emperor("). He observed that the Criminal Procedure Code did not define a judgment but various sections of the Code suggested what it meant. He then discussed those sections and concluded that "judgment" in the Code meant a judg (1) Mad. (2) A.I.R. 1939 Federal Court 43. 133 ment of conviction or acquittal. Reference was then made to the observations of Sri Arnold White, C. J. in Emperor vs Chinna Kaliappa Gounden & another(1) which were followed by another Division Bench of the Madras High Court in Emperor vs Maheshwara Kondaya (2) and it was held that an order of discharge was not a judgment as "a judgment is intended to indicate the final order in a trial terminating in either the conviction or acquittal of the accused". A Full Bench of the Bombay High Court in Emperor vs Nandlal Chunilal Bodiwala(3) pronounced that a judgment is the expression of the opinion of the Court arrived at after dueconsideration of the evidence and all the arguments. It was pointed out that sections 366 and 367 applied to the judgments of the trial Court and section 424 dealing with the judgments of the Appellate Courts provided that the rules relating to the judgments of a Trial Court shall apply so far as may " be practicable to the judgment of any Appellate Court other than a High Court. It followed therefore that there was no definite rule as to what the judgment of a High Court acting in its appellate as well as its revisional jurisdiction should contain. It was quite natural because the judgment of the High Court in its criminal jurisdiction was ordinarily final and did not therefore require the statement of any reasons whether the High Court was exercising its appellate or revisional jurisdiction. The judgment howsoever pronounced was however the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments and would therefore either be a judgment of conviction or acquittal and where it would not be possible to predicate of the pronouncement that it was such an expression of opinion the pronouncement could certainly not be taken as the judgment of the High Court. A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would certainly be arrived at after (1) Mad. (2) Madras 543. (3) 134 due consideration of the evidence and all the arguments and would therefore be a judgment and such judgment when pronounced would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. When however a petition of appeal presented by a convicted person from jail is summarily dismissed under section 421 or a revision application made by him is dismissed summarily or in liming without hearing him or his pleader what the High Court does is to refuse to entertain the petition of appeal or the criminal revision and the order passed by the High Court "dismissed or rejected" cannot be said to be the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments. It is a refusal to admit the appeal or the criminal revision so that notice be issued to the opposite party and the matter be decided after a full hearing in the presence of both the parties. It would be only after the appeal or the criminal revision was admitted that such a notice would issue and the mere refusal by the High Court to entertain the appeal or the criminal revision would certainly not amount to a judgment. The same would be the position when a reference was made by the lower Court to the High Court under section 438 and the High Court on perusing the reference made an order "no order on the reference" as the High Court on a consideration of the terms of the reference must have come to the conclusion that no prima facie case has been made out to warrant an interference on its part. If the High Court thought that it was a prima facie case for its interference it would certainly entertain the reference and issue a notice to the parties concerned to show cause why the judgment and order passed by the lower Court should not be revised. When a petition of appeal is presented to the High Court by the convicted person or his pleader section 421 provides that no such appeal should be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of 135 the same and the High Court might before dismissing an appeal under that section, call for the record of the case but would not be bound to do so. Even in such a case the hearing accorded to the appellant or his pleader would be with a view to determine whether there was a prima ' facie case made out to warrant its interference in appeal. The appellant or his pleader would be heard in support of that position and if he satisfied the High Court that there was a prima facie case for its interference the High Court would admit the appeal and order a notice to issue to the opposite party in which event the appeal would be. decided after a full hearing in the presence of both the parties. The calling for the records of the case also though not compulsory but discretionary with the Court would be for this very purpose, viz., to determine whether a prima facie case for its interference was made out. The whole purpose of the hearing accorded to the appellant or his pleader even after calling for the records of the case would be to determine whether a prima facie case for its interference was made out and it would not be within the province of the Court at that stage to fully consider the evidence on the record and hear arguments from the appellant or his pleader with a view to determine whether the conviction could be sustained or the sentence passed upon the accused could be reduced. The setting aside of the conviction and the reduction, if any, in the sentence could only be determined by the Court after notice was issued to the opposite party and a full hearing took place in the presence of both the parties. Even in the case of a summary dismissal of a petition of appeal under these circumstances the position would certainly not be any different from that which obtains in the. case of a summary dismissal of the petition of appeal presented by the convicted person from jail or the summary dismissal of an application for criminal revision made by him or on his behalf to the High Court. In all these cases there will be no judgment of the High Court replacing the judgment of the lower Court and the action of the High Court would only amount to a refusal by the High Court to admit the 136 petition of appeal or the criminal revision and issue notice to the opposite party with a view to the final determination of the questions &rising in the appeal or the revision. The order dismissing the appeal or criminal revision summarily or in liming would no doubt be a final order of the High Court not subject to review or revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower Court. The convicted person would be bound by that order and would not be able to present another petition of appeal or application for criminal revision challenging the conviction or the sentence passed upon him by the lower Court. But such order would not have the effect of replacing the judgment or order of the lower Court which would in that event be subject to the exercise of revisional jurisdiction by the High Court under section 439 of the Criminal Procedure Code at the instance of the State or an interested party. In the cases (1) & (3) noted above therefore there being no judgment of the High Court replacing the judgment of the lower Court section 439 (1) would operate and the High Court in exercise of its revisional jurisdiction either Suo motu or on the application of the interested party would be in a position to issue the notice of enhancement of sentence which would require to be served on the accused under section 439(2) so that he would have an opportunity of being heard either personally or by pleader in his own defence. In that event the convicted person in showing cause why his sentence should not be enhanced would also be entitled to show cause against his conviction. It follows therefore that in the case of a summary dismissal or a dismissal in limine of petitions of appeal or applications for criminal revision even if the convicted person or his pleader has been heard by the High Court with a view to determine if there is a prima facie case for its interference, the convicted person to whom an opportunity has been given under section 439(2) of showing cause why his sentence should not be enhanced would in showing cause be entitled also to show cause against his conviction. The 137 same would also be the position when a reference made by the lower Court to the High Court under section 438 of the Criminal Procedure Code is rejected by the High Court without issuing notice to the parties concerned by merely ordering "no order on the reference". In cases where the petition of appeal or the application for criminal revision is admitted by the High Court and a notice is issued to the opposite party and the High Court maintains the conviction with or without reducing the sentence passed upon the accused the judgment of the High Court in the exercise of its appellate or revisional jurisdiction would replace the judgment of the lower Court and there would be no occasion at all for the exercise by the High Court of its revisional powers under section 439(1) which can only be exercised qua the judgments of the lower Courts and certainly not qua its own judgments. The cases (2) & (4) noted above would therefore be outside the purview of section 439(1). If that is so there would be no question accused an opportunity of being heart sonally or by pleader in his defence 439(2) act the provisions of section 439(6) would certainly not come into operation at all. If no notice of enhancement of sentence could issue under these circumstances no question at all could arise of the convicted person showing cause why his sentence should not be enhanced and being entitled in showing cause also to show cause against his conviction. It follows by way of a necessary corollary that no notice for enhancement of sentence can be issued by the High Court when a judgment is pronounced by it after a full hearing in the presence of both the parties either in exercise of its appellate or its revisional jurisdiction. Such notice for enhancement of sentence can be issued by it either suo motu or at the instance of an interested party when the judgment of the lower Court subsists and is not replaced by its own judgment in the exercise of its appellate or its revisional jurisdiction. When the judgment of the lower Court has been under its scrutiny on notice being issued to 18 18 138 the opposite party and on a full hearing accorded to both the parties notice for enhancement of sentence can only be issued by it before it pronounces its judgment replacing that of the lower Court. When such hearing is in progress it is incumbent upon the High Court or the opposite party to make up its mind before such judgment is pronounced whether a notice for enhancement of sentence should issue to the accused. There would be ample time for the opposite party to make up its mind whether it should apply for a notice of enhancement of the sentence. The High Court also on a perusal of the record and after hearing the arguments addressed to it by both the parties would be in a position to make up its mind whether it should issue such notice to the accused. But if neither the opposite party nor the High Court does so before the hearing is concluded and the judg ment is pronounced it will certainly not be open to either of them to issue such notice for enhancement of sentence to the accused, because then the judgment of the High Court in the exercise of its appellate or revisional jurisdiction would replace that of the lower Court and section 439(1) would have no operation at all. Even in the case of a reference by the lower Court under section 438 of the Criminal Procedure Code the High Court if it did not summarily reject such a reference would issue notice to the parties concerned and then there would be occasion for it either suo motu or on the application of an interested party to issue a notice of enhancement of sentence before the hearing was concluded and a judgment was pronounced by it. The procedure obtaining in the several High Courts to the effect that notice for enhancement of sentence can issue even after the appeal or the application for criminal revision is disposed of by the High Court and judgment pronounced thereupon is not correct and is contrary to the true position laid down above. It was contended that the non obstante clause in section 439(6), viz. "notwithstanding anything contained in this section" was meant to confer upon the convicted person a right to show cause against his 139 conviction in those cases where a notice to show cause why his sentence should not be enhanced was issued against him, whatever be the circumstances under which it might have been issued. Once you had a notice for enhancement of sentence issued against the convicted person this right of showing cause against his conviction also accrued to him and that right could be exercised by him even though he had on an earlier occasion unsuccessfully agitated the maintainability of his conviction either on appeal or in revision. This non obstante clause could not in our opinion, override the requirements of section 439(1) which provides for the exercise of revisional powers by the High Court only qua the judgments of the lower Courts. Section 439(6) would not come into operation unless a notice for enhancement was issued under section 439(2) and a notice for enhancement of sentence under section 439(2) could not be issued unless and until the High Court thought it fit to exercise its revisional powers under section 439(1) qua the judgments of the lower Courts. The High Court has no jurisdiction to exercise any revisional powers qua its own judgments or orders, the same being invested with finality and otherwise being outside the purview of the exercise of its revisional jurisdiction, and the only purpose of the non obstante clause in section 439(6) can be to allow the convicted person also to show cause against his conviction when he is showing cause why his sentence should not be enhanced in spite of the prohibition contained in section 439(5). Where an appeal lies under the Code and no appeal is brought no proceedings by way of revision can be entertained at the instance of the party who could have appealed. If the convicted person could have 'filed an appeal but had failed to do so he could certainly not approach the High Court in revision and ask the High Court to set aside his conviction. If he could not file any application in revision he could not show cause against his conviction under section 439 (1) of the Criminal Procedure Code and it was in order to remove this disability that the non obstante clause in section 439(6) was enacted so that when the High 140 Court was exercising its revisional jurisdiction the convicted person could show cause against his conviction in spite of the fact that otherwise he could not have been able to do so, be not having appealed when an appeal lay and therefore not being entitled to file an application in criminal revision and challenge the validity or maintainability of his conviction. Section 439(6) therefore confers on the convicted person a right which he can exercise in the event of a notice for enhancement of sentence being issued against him in the exercise of the revisional jurisdiction by the High Court in spite of the fact that he was not entitled to question the validity or maintainability of his conviction in a substantive applica tion for criminal revision filed by him for the purpose and this right is available to him only if the High Court exercising its revisional jurisdiction under section 439(1) thinks it fit to issue a notice of enhancement of sentence against him under section 439(2) and in that event he has the right also to show cause against his conviction when showing cause why his sentence should not be enhanced. We shall now review the decisions of the various High Courts to which our attention has been drawn by the learned counsel appearing before us. Turning first to the decisions of the Bombay High Court we were referred to Emperor vs Chinto Bhairava (1), a decision given in the year 1908 which recognised the invariable practice of that Court for over 25 years according to which the accused in showing cause why the sentence should not be enhanced was not allowed to dis cuss the evidence and satisfy the Court that he had been wrongly convicted. The practice of the Court in such cases was to accept the conviction as conclusive and to consider the question of enhancement of sentence on that basis. It was open to the accused to apply for revision of the conviction, but having failed to avail himself of that, he could not be permitted to assail the conviction in a proceeding where the sole question was whether the sentence passed by the lower Court was adequate or not. It may be (1) Bom. 141 noted that this decision was in the year 1908 long before the amendment of section 439 of the Criminal Procedure Code by Act XVIII of 1923 by adding subsection (6) thereto. The next decision to which we were referred was Emperor vs Mangal Naran(1). In that case simultaneously with the admission of an appeal filed by the accused the Court issued a notice for enhancement of sentence. When the appeal and the notice came for hearing together before the Division Bench the Court observed that such a practice was not desirable. It was likely to produce an impression on the mind of an illiterate accused in jail that it was proposed to enhance the sentence because he had appealed. MacLeod, C.J. there expressed an opinion that if after an appeal had been heard on its merits and dismissed a notice to enhance the sentence was issued, the accused had still the right to show cause against his conviction, though any attempt to set aside the conviction would not have much chance of success. He however expressed his preference in favour of the old practice, viz. first to deal with the appeal and then to consider whether a notice to enhance should issue. No ques tion had arisen for consideration of the Court in that case as to the true construction of the provision of section 439(6) of the Criminal Procedure Code and the only question considered by the Court there was what should be the proper procedure to be adopted when issuing a notice for enhancement of sentence, whether it should be issued simultaneously with the admission of the appeal or after the appeal was finally heard and disposed of. This opinion expressed by MacLeod, C.J. was therefore treated as obiter in Emperor vs Jorabhai Kisanbhai(2). The question that arose for consideration of the Court in that case was whether after an appeal of an accused person against his conviction and sentence had been dismissed by a Division Bench of the High Court and a notice to enhance the sentence was issued on an application on behalf of the Government the application for enhancement of sentence could be (1) (2) Bom. 142 heard on its merits by another Division Bench of the High Court treating the conviction as correct or the accused was under such circumstances not entitled under section 439(6) to be re heard on the merits of his conviction. The appeal filed by the accused against his conviction and sentence had been dismissed on the 7th April, 1926. After judgment was delivered by the Court, the Government Pleader applied orally for issue of a notice for enhancement and that application was granted. The application was heard on the 17th June 1926 and it was urged on behalf of the accused that the only proper procedure was to issue a notice for enhancement of sentence before the appeal had been actually disposed of and that once the appeal was disposed of by the Court there was no legal power to enhance the sentence under section 439 of the Criminal Procedure Code. That contention was negatived the Court observing that so far as the point of procedure was concerned there was no hard and fast rule as to the appropriate time for the issue of notice of enhancement of sentence by the High Court and resorting, to the principle of the finality of judgments as regards the accused being concluded by the judgment of the High Court dismissing his appeal and confirming the sentence passed upon him. The judgment there was interpreted as confirming the conviction and rejecting the appeal as to the sentence in the sense that it saw no reason to reduce it and that was not treated as a decision that the sentence should not be enhanced if a proper procedure was taken such as the Code allowed for the purpose and therefore so far as the judgment went there was nothing which in any way tied the hands of the Court. Sections 369 and 430 of the Criminal Procedure Code were referred to and the Court held that the observations of MacLeod, C.J. in Emperor vs Mangal Naran(1) above referred to were obiter dicta not binding upon them and the application must be heard on the merits treating the conviction as correct in view of the dismissal of the appeal. It is no doubt true as observed by Madgavkar, J. (1) 143 in regard to the practice as to the proper time for issuing of the notice of enhancement that the question of adequacy of punishment is, in the first instance, a matter for the Government and for the District Magistrate. From the time when the sentence is passed, and at all events up to the time when anappeal is admitted and notice is received, it is open to Government to consider the sufficiency of a sentence and before hearing of the appeal, to apply to the High Court for enhancement of the sentence if they are so advised. In that event the appeal as well as the notice of enhancement would be heard together and the Court hearing the appeal would apply its mind not only to the question whether the conviction should be confirmed but also to the question whether the sentence should be reduced or enhanced as the case may be ' It is only in rare instances that the High Court considers for itself the question of enhancement of sentence and only if no action has been taken by the Government and if the High Court thinks that the interests of justice imperatively demand it. In such a case it would be a matter for consideration by the High Court whether it should issue notice at the very time of the admission or whether it should do so while disposing of the appeal on the merits as to the conviction. The observations of the learned Judge however in so far as they seem to suggest that the appeal should be disposed of first and the question of enhancement of sentence should be considered by the same Bench immediately afterwards or that the notice for enhancement could be issued by the Court after the disposal of the appeal on the merits as to conviction do not take into account the fact that after the judgment is pronounced and the conviction is confirmed involving as a necessary corollary thereof the confirming of the sentence passed upon the accused also if the same is not reduced, the judgment of the High Court replaces that of the lower Court and the exercise of any revisional powers by the High Court by way of enhancement of the sentence is necessarily eschewed. These revisional powers could only be exercised by the High Court qua the judg 144 ment of the lower Court and once that judgment is replaced by the judgment of the High Court, the High Court has no further powers to review or revise its own judgment and enhance the sentence which is thus passed by it upon the accused. The principle as to the finality of judgments applied by the Court by virtue of the provisions of section 369 and section 430 of the Criminal Procedure Code should not have been confined merely to the question of confirming the conviction but also should have been extended to the confirming of the sentence in so far as the High Court did not see any reason to reduce the sentence already passed by the lower Court upon the accused. When the High Court hears the appeal on its merits it does not apply its mind only to the question whether the conviction should be confirmed but also applies its mind to the adequacy of the sentence passed upon the accused by the lower Court. In thus applying its mind to the question of sentence it also considers whether the sentence passed upon the accused by the lower Court is adequate in the sense that it is either such as should be reduced or is such as should be enhanced. The questions of the reduction of the sentence or enhancement of the sentence are not to be viewed as if they fall into water tight compartments and the mind of the Court hearing the appeal on merits is directed to the consideration of the matter in all its aspects including the confirming of the conviction and the reduction or enhancement of the sentence as the case may be. The principle of finality of judgments should therefore be extended not only to the question of the confirming of the conviction but also to the question as to the adequacy of the sentence, whether the sentence which is passed upon the accused by the lower Court should be reduced, confirmed or enhanced. Once therefore the judgment of the High Court replaces that of the lower Court there is no question which can ever arise of the exercise by the High Court of its revisional powers under section 469(1) of the Criminal Procedure Code and the proper procedure therefore if the High Court thought it fit either suo motu or on the application of the interested party 145 to issue the notice of enhancement of sentence, is to issue the said notice before the hearing of the appeal is concluded and the judgment of the High Court in appeal is pronounced. We are therefore of the opinion that the decision reached by the High Court of Bombay in Emperor vs Jorabhai(1) was not correct in so far as it held that the notice of enhancement could be issued by the High Court at the instance of the Government after the dismissal of the appeal on merits. The notice for enhancement issued in that case was not competent and should not have been issued at all by the High Court. The decision in Emperor vs Jorabhai(1) was followed in Emperor vs Koya Partab(2) which extended the same principle to an appeal which had been presented from jail and was summarily dismissed under section 421 of the Criminal Procedure Code. While dismissing the same the Court issued a notice for enhancement. When the notice came for hearing the accused contended that he was entitled to be heard on the merits as to whether he should have been convicted or not relying upon the provisions of section 439(6). Beau mont, C.J. relied upon the provisions of section 430 and observed that the accused was not at liberty to be heard on the merits. The judgment of the Court of Appeal dismissing the appeal on the 9th June 1930 was a final order which the Court was not at liberty to differ from and the non obstante clause in section 439(6) did not entitle the accused to go behind section 430 and to show cause against his conviction after his appeal had been dismissed. The learned Chief Justice followed the decision in Emperor vs Jorabhai (1) and observed that the only distinction between that case and the one before him was that case had been heard on the merits and not summarily dismissed. But in his view that distinction was not one of principle. We are of the opinion that the order which had been pronounced by the Court of Appeal on the 9th June 1930 was not a judgment of the High Court which replaced that of the lower Court and (1) Bom. (2) 19 146 even though it might come within the description of an order within the meaning of section 430 it was not a judgment within the meaning of the term set out above and not being a judgment was no bar to the accused showing cause also against his conviction when showing cause against the notice for enhancement. The matter was one falling within the category of case No. I noted above and it was open to the accused even though his petition of appeal from jail was summarily dismissed under section 421 to urge while showing cause against the notice of enhancement of sentence also to show cause against his conviction. This decision was therefore in our opinion incorrect and the accused ought to have been heard on the merits as to whether he should have been convicted or not. Emperor vs Ramchandra Shankarshet Uravane(1) was a case where the High Court admitted the appeal and at the same time issued a notice to the accused for enhancement of sentence. The observations of MacLeod, J. in Emperor vs Mangal Naran(2) were followed in spite of the fact that they bad been held obiter by the Division Bench of the Court in Emperor vs Jorabhai (3). Emperor vs Jorabhai (3) was also referred to and it was held that it was neither necessary nor desirable for the High Court to issue a notice, for enhancement of sentence at the time of admission of the appeal. It was however observed that it was open to consider the question of enhancement of sentence after the appeal had been heard. If those observations were meant to convey that the question of enhancement of sentence could be considered after the appeal had been disposed of and judgment was pronounced by the High Court we do not agree with the same. But if they were meant to convey that the High Court could hear the accused on the question of enhancement of the sentence at the same time when his appeal was heard, before pronouncement of the judgment on the question of the conviction and the (1) (2) (3) Bom. 147 sentence passed upon him, they were perfectly in order. The decision in Emperor vs Inderchand(1) extended the principle enunciated in Emperor vs Jorabhai further by applying it to a case where an application for revision by the accused against his conviction and sentence had been dismissed by the High Court. In that case the accused had filed an application for revision which was summarily dismissed by the Vacation Judge on the 30th April, 1954. After such summary dismissal of the application the Government filed the criminal revision application for enhancement of sentence. The Division Bench held that the criminal revision application of the accused having been fully disposed of by the learned Vacation Judge there was a valid order of dismissal, that section 430 debarred the accused from having that order of dismissal reviewed by the High Court that the right conferred by section 439(6) could not give an accused person a right to be heard against his conviction if such a right was in conflict with the other provisions of the Code, that under section 369 the Court had no power to alter the decision of the learned Vacation Judge dismissing the revision petition filed by the accused and that if the accused bad already unsuccessfully exercised his right of appeal or revision to the High Court he was not entitled in a subsequent application by the Government for enhancement of sentence to ask the High Court to go once more into the merits of the case and to set aside the conviction which the same Court had previously confirmed either in appeal or on a revision application. Divatia, J. was conscious of the somewhat anomalous position so far as the accused was concerned and referred to the observations of the Court in Emperor vs Babu Pandurang Mhaske(3) where it was stated and rightly that where the High Court itself wanted to enhance the sentence, in order that the accused might have the right to challenge his conviction before the same bench which was hearing either the appeal or the (1) (2) (1926] I.L.R. (3) 148 application for enhancement, it was proper that the application for enhancement should be heard before the appeal was finally decided, so that the accused might be heard at the very time when the question of enhancement was before the Court. While approving of these observations the learned Judge however observed that it was possible only in a case where the High Court itself wanted to enhance the sentence and gave notice to the accused and not so in a case where Government approached the High Court by way of a revisional application as it was entitled to do under section 439(1). Government might approach the High Court in revision under section 439(1) at any time within six months after the decision of the lower Court and in the meanwhile the accused might have come to the High Court and his application might have been rejected. That might result in this that the conviction might be confirmed by one Bench or a single Judge as might happen in a particular case and the application for enhancement might be heard by another Bench. But, so far as the provisions of the section were concerned, whatever might be the anomaly in this procedure, the learned Judge did not think that the inconvenience or hardship to the accused should lead the Court to construe section 439 of the Criminal Procedure Code in a manner which, according to the view of the learned Judge, was not intended by the Legislature. These observations however did not take count of the fact that if a petition of appeal or a criminal revision application filed by the accused was dismissed summarily or in limine there was no question of a judgment of the High Court replacing that of the lower Court and the order of the High Court merely amounted to a refusal by it to interfere either in the exercise of its appellate or revisional jurisdiction which order though final and not being susceptible of review or revision by the High Court itself, did not amount to a judgment of the High Court barring the application of section 439(1) of the Criminal Procedure Code. In that event the judgment of the lower Court not being replaced by a 149 judgment of the High Court it could be the subjectmatter of criminal revision at the instance of the Government in the matter of the enhancement of the sentence and all the provisions of section 439 would then come into operation. The High Court would be bound then under section 439(2) to give an opportunity to the accused to be heard in his defence before the sentence passed upon him by the lower Court was enhanced and the accused would under section 439(6) be entitled in showing cause against the notice of enhancement also to show cause against his conviction. This decision of the High Court therefore was incorrect and the accused ought to have been allowed in spite of the summary dismissal of his application in revision to show cause against his conviction while showing cause against the notice for enhancement. One more decision of the Bombay High Court may be referred to and that is Emperor vs Nandlal Chunilal Bodiwala(1). That was a case where the Sessions Judge of Ahmedabad had at the instance of the petitioner made a reference to the High Court recommending that the Additional Magistrate had no jurisdiction, power or authority to pass the order complained against and that the High Court should quash the same. On the reference coming before the High Court the following order was passed without issuing notice: "no order on this reference". The petitioner thereupon filed a criminal revision application to the High Court praying that the order of the Additional District Magistrate be quashed. This revision application came for hearing before a Division Bench and the Court requested the Chief Justice to constitute a Full Bench to consider the following point: "When on a reference made by the Sessions Judge under section 438 of the Criminal Procedure Code, a Division Bench of this Court passes an order without issuing notice, viz., 'No order on this reference ', whether the applicant at whose instance the Sessions Judge made the reference is entitled to make an application in revision to this Court in the same (1) 150 matter, in view of the provisions of section 369 of the Criminal Procedure Code?" The application was heard by a Full Bench and it was contended on behalf of the petitioner that when the High Court without issuing notice to the applicant disposed of the reference made by the Sessions Judge by stating "no order on the reference" there was no judgment given on the merits. The order of the Court only meant that the Court would not allow the matter to be brought before it on the recommendation of the Sessions Judge and merely disposed of it on that view. If a mere order of disposal of a reference or revision application amounted to a judgment the party in whose favour a reference was made by the Sessions Judge would be deprived of the right he had of approaching the High Court in revision against the order, if the Court disposed of the matter in the manner it had done in that case. This argument was repelled by the Full Bench. It held that section 369 of the Criminal Procedure Code debarred the petitioner from making the criminal revision application, that the order of the High Court passed upon the reference amounted to a judgment within the meaning of that term in section 369 of the Criminal Procedure Code and after it was signed it could not be altered or reviewed in a subsequent application for revision and that even though the Division Bench of the High Court passed the order "no order on this reference" without issuing notice to the applicant, the applicant whose favour the Sessions Judge made a reference was not entitled to make an application in revision to the High Court in the same matter. Even though this conclusion was reached by the Full Bench they observed that they were not unaware that the applicant had a grievance that his position had been worsened and not improved by the Sessions Judge being in his favour, because if the recommendation of the Sessions Judge was turned down without hearing the petitioner, as had happened in that case he was worse off, while if the Sessions Judge would have been against him he could have still applied to the High Court in revision 151 and got an opportunity to put his case before the High Court. This was recognised no doubt as an anomaly but it was caused by the provision of rule 26 of the Appellate Side Rules of the Bombay High Court which compelled a party to apply to a lower revisional Court before applying in revision to the High Court. This disability which the petitioner suffered from was emphasised in that if the Sessions Judge had dismissed his application he could then have applied to and argued his case before the High Court, but because the Sessions Judge was in his favour and had therefore got to make a reference to the High Court recommending it to set aside the order and because the High Court was not satisfied with the reasons for the recommendation, and disposed of it without issuing a rule, the petitioner was debarred from urging his arguments before the High Court. It might be that the reasons given by the Sessions Judge for the recommendation might be weak or might be insufficient, whereas the petitioner, if he appeared might be able to urge cogent and sufficient reasons for setting aside the original order. In spite of pointing out this disability the only recommendation which was made by the Full Bench was that the Rule 26 of the Appellate Side Rules should be properly amended so as to issue notice to all the parties concerned when a reference was made by a Sessions Judge recommending the setting aside of an order of the Trial Court. We are of the opinion that the Full Bench should not have stopped short at pointing out this disability which the applicant suffered from but should have gone further and held that the order passed by the High Court on the reference, though final under section 430 of the Criminal Procedure Code was not a judgment within the meaning of that term and therefore did not debar the applicant from making the criminal revision application which he did under section 439(1) of the Criminal Procedure Code. Such an order did not amount to a judgment within the definition thereof given by the Full Bench itself which was: "a judgment is the expression of the opinion of the Court arrived at after due consideration of the 152 evidence and of the arguments" as pointed out earlier in the course of this judgment. We are of the opinion that this decision of the Bombay High Court was also incorrect. Emperor vs Jorabhai (1) was followed by the Lahore High Court in Emperor vs Dhanalal(2). In that case a revision petition filed on a behalf of the convicted person was dismissed after hearing counsel. Subsequently a report of the Sessions Judge was received and the learned Judge who had dismissed the revision petition issued a notice for enhancement of sentence and the Court held that section 439(6) was meant to give an accused person to whom a notice for enhancement was issued and who had not appealed or if no appeal lay had not applied for revision of his conviction an opportunity to question the correctness of his conviction if it was proposed to enhance his sentence. But if a petition for revision against his conviction by a convict had been rejected by a Judge of the High Court and a notice had subsequently been issued to him to show cause why his sentence should not be enhanced the convict was barred from showing cause against his conviction and the fact that the previous order dismissing the revision was passed without issuing notice to the opposite party made no difference to the position. The Court also invoked the principle of the finality of judgments and further held that the words "unless he had already done so" though not occurring at the end of the sub section were to be presumed to be implied from the ordinary presumption as to the finality of orders in criminal revision proceedings. In arriving at this conclusion Addison, J. observed: "In the present case there has been a judgment of this Court on the very full revision application brought by the convict. By that judgment the petition was dismissed and the conviction confirmed. Under section 369, Criminal Procedure Code that judgment cannot be reviewed. It is a final judgment of this Court, and in my opinion the provisions of sub (1) Bom. (2) Lah. 153 section (6), section 439, do not give the convict another opportunity in these circumstances to be heard as regards his conviction". There was no justification whatsoever for reading the words "unless he had already done so" in the section and the reasoning adopted by the learned Judge in our opinion wrongly invested the order passed by the High Court in the exercise of its revisional jurisdiction dismissing the application without issuing a notice to the opposite party with the character of a judgment which could only be enjoyed by it if it had been pronounced after a full hearing in the presence of both the parties after notice issued to the opposite party. Then the pronouncement of the High Court would have been a judgment replacing the judgment of the lower Court and not subject to the exercise of any revisional jurisdiction under section 439(1) of the Criminal Procedure Code. Where the petition for revision against his conviction presented by the convict had been rejected by the High Court in limine the order passed by the High Court did not tantamount to a judgment which would debar the convict from showing cause against the conviction when showing cause against a subsequent notice for enhancement of sentence issued by the High Court. The learned Judge further observed: "There appears to be no distinction between dismissing a revision petition in limine or after notice. The judgment is in either case an effective and final judgment of the Court. In this respect there is no difference between a revision petition and a memorandum of appeal. . . . In these circumstances I can see no force in the argument that an, order dismissing a revision petition without issuing notice is different from an order after the issue of notice, or that there is any distinction between a judgment of this Court passed on the revision side and one on the appellate side". While agreeing with the observations of the learned Judge that for the purposes of section 439(1) there was no distinction between a judgment of 20 154 the High Court passed on the revision side and one on the appellate side we are of the opinion that there is a real distinction between orders dismissing a revision petition or a petition of appeal in limine without issuing notice to the opposite party and judgments pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after a full hearing in the presence of both the parties after the issue of notice. The latter are judgments in the true sense of the term which debar the exercise of revisional jurisdiction by the High Court under section 439 (1) of the Criminal Procedure Code. This decision of the Lahore High Court was however overruled by a Special Bench of that Court in Emperor vs Atta Mohammad(1). A criminal revision application had been dismissed in limine and thereafter a notice for enhancement of sentence was issued by the High Court. The decision of that Court in Emperor vs Dhanalal(1) following Emperor vs Jorabhai(3) was cited as debarring the accused from showing cause against his conviction and Blacker, J. before whom the matter was argued in the first instance recommended a reference to a larger Bench and the reference came up for hearing and final disposal before a Special Bench of the Court. It was held that the accused was entitled to show cause against his conviction notwithstanding the fact that his petition for revision of the order by which he was convicted had already been dismissed in limine under section 435 of the Criminal Procedure Code. The question whether an order under section 435 was a judgment was discussed by Blacker, J. while pronouncing the judgment of the Special Bench. He referred to the case of Dr. Hori Ram Singh vs Emperor(1) above referred to and quoted with approval the observations of Sulaiman, J. that every order in a criminal matter was not a judgment and that 'judgment ' in the Crimi nal Procedure Code meant a judgment of conviction or acquittal. Applying this definition the learned Judge observed: (1) Lah. 391 (F.B.). (2) Lahore 241. (3) Bom. (4) A.I.R. 1939 F.C. 43. 155 "It will be seen that an order under section 435 can with difficulty be called a judgment. All that a Judge does at this preliminary stage is either to send for the records of the lower Court with a view to examining them under section 439(1) or to refuse to do so. It is difficult to see how the latter can possibly be called a judgment of conviction. When such an order consists of the one word 'Dismissed ' can it necessarily be taken as a judicial pronouncement that in the opinion of the Judge the respondent was rightly convicted upon the evidence? It seems to me that all that it means is that the Judge sees no adequate ground disclosed in the petition or on the face of the judgment for proceeding further". This reasoning in our opinion was quite sound. But the learned Judge proceeded further to make a distinction between the summary dismissal of a petition of appeal under section 421 and the summary dismissal of a criminal revision application under section 435 stating that the reasons for which the High Court would summarily dismiss an appeal were very different from those for which it would refuse to interfere in revision, and in the case of appeal it would only do so when the material before it was sufficient to satisfy it beyond any doubt of the accused 's guilt, whereas, on revision the High Court would not interfere merely because it did not agree on every point with the Court below,, as long as the Courts below have come to a reasonable decision on the evidence. This distinction in our opinion does not affect the position that the order pronounced by the High Court dismissing the petition of appeal or a criminal revision application in limine without issuing notice to the opposite party is merely an order dismissing the same on the ground that there is no prima facie case for interference of the High Court and does not amount to a judgment pronounced by the High Court after full hearing in the presence of both the parties which only can debar the High Court from exercising its revisional jurisdiction under section 439(1). Mr. Justice Mahajan as he then was delivered a concurring judgment but went a step further and observed that 156 the true interpretation of section 439(6) was that it gave an unlimited right to the accused to whom a notice of enhancement was issued under section 439(2) to show cause against his conviction and the Judge was bound to go into the evidence with a view to find for himself whether the conviction could be sustained. This right accrued to the convict on service of notice of enhancement of sentence and could not be negatived by anything that had preceded the issue of that notice. It was the Judge hearing the en hancement petition who had to give an opportunity to the convict to challenge his conviction before him and to satisfy him that the conviction was unsustainable. That Judge could not substitute for his satisfaction the satisfaction of some other Judge in the matter. It was a condition precedent to the passing of a prejudicial order against an accused person that he had another opportunity of establishing his innocence, even if he had failed to do so before. The learned Judge rightly observed that an order made in the exercise of an extraordinary discretionary jurisdiction, unless it be a judgment in rem, could not in any way operate as a bar to the decision of the same matter when it arose in the exercise of ordinary appellate jurisdiction, and that therefore an order dismissing a criminal revision application in limine could not amount to a judgment of the High Court. The learned Judge then invoked the principle of the finality of judgments and observed: "On the other band if the view be correct that all orders passed in exercise of revisional jurisdiction whether they be of dismissal of the petition in limine, or otherwise take away the right of the convict to challenge his conviction in view of section 369, Criminal Procedure Code as in such cases a decision given already cannot be altered or reviewed, then I do not see how for purposes of enhancement of the sentence, the previous decision can be altered. Any Judge deciding a petition for revision under section 439(1) must consider the propriety of the sentence as well as the propriety and legality of the conviction, and in my opinion he must be presumed to 157 have done so. If a previous decision on the question of conviction bars the applicability of section 439(6), it also bars the power to enhance the sentence. Once it has been held that the sentence was proper, it cannot be enhanced. I have not been able to see the ratio decidendi of the decisions which take the view, that the question of enhancement of the sentence is something distinct and separate from that of conviction, and that the question of the adequacy and propriety of sentence which comes before the court on a petition for revision presented by the accused is a matter different from the matter of enhancement. , The Judge has to see if a proper sentence has been passed before he decides the case, and the question whether a sentence passed is adequate or inadequate cannot be split up in two different compartments. The question is only one of the quantum of punishment and such a question can only be decided but once. Therefore in my view either there is no power of re revision in the High Court, in that case there is no power to enhance the sentence on a separate petition made for the purpose; or there is such a power in that case it is available to the Crown as well as to the accused". This reasoning again was in our opinion sound but led only to the conclusion that there was no power of re revision in the High, Court and in that case there was no power to enhance the sentence on a separate petition made for the purpose. The learned Judge therefore ought to have held that if the order dismissing the criminal revision petition in limine tantamount to a judgment pronounced by the High Court it was not open to the High Court to issue a notice for enhancement of sentence subsequently under section 439(1) of the Criminal Procedure Code. 'Having held however that the order dismissing the criminal revision application in limine was merely an order and not a judgment pronounced by the High Court and also having held that the High Court was entitled to issue a notice for enhancement of sentence under section 439(1), under those circumstances the only logical conclusion to which the Court could come 158 was that under section 439 (6) the accused while showing cause against the enhancement of sentence was entitled also to show cause against his conviction. Mr. Justice Mahajan confined his decision only to the case of a dismissal of a criminal revision application in limine and left open the question whether a decision on the Appellate Side of the High Court would bar the exercise of the right under section 439 (6) inasmuch as no arguments were heard on the point. The principle of this judgment in our opinion is not con fined merely to cases where a criminal revision application has been dismissed in limine but also extends to cases where a petition of appeal whether presented from jail or presented to the Court by the appellant or his pleader has been similarly dismissed summarily or in limine without issuing notice to the opposite party and also to cases of references made by the lower Courts to the High Court where the High Court has merely passed an order without issuing notices, to any of the parties concerned "no order on this reference". The Patna High Court in Ramlakhan Chaudhry vs The King Emperor(1) followed both these decisions Emperor vs Jorabhai(2) and Empeeror vs Dhanalal(3) in holding that the dismissal of an appeal by the High Court did not debar it from subsequently enhancing the sentence in the exercise of revisional jurisdiction after issuing notice to the accused. In that case an appeal had. been dismissed after full hearing by the High Court. At the hearing of the appeal however the Court asked the counsel for the accused to show cause why the sentence passed upon them should not be directed to run consecutively thus in effect issuing a notice for enhancement of the sentence. When the matter came on for hearing it was contended on behalf of the accused that with the disposal of the appeal the Bench and indeed the High Court was functus officio and had no jurisdiction to hear the matter at all. This contention was repelled by observing that the appellate judgment was not concerned with the (1) Patna 872. (2) Bom. (3) Lahore 241. 159 question of enhancement of the sentence which only arose in the exercise of the revisional jurisdiction and the sentence to be revised and enhanced was the sentence passed not by the High Court but by the Court of Sessions. These observations run counter to the observations of Mr. Justice Mahajan which we have quoted above and ignores the fact that once the High Court pronounced its judgment in the appeal after full hearing in the presence of both the parties the judgment of the High Court replaced that of the lower Court and the High Court had thereafter no power to issue a notice of enhancement of sentence purporting to exercise the revisional powers vested in it under section 439 (1) of the Criminal Procedure Code which could be exercised only qua the judgments of the lower Courts and not its own judgments. The Allahabad High Court also in Emperor vs Naubat(1) followed the decisions of that Court which had approved of and followed Emperor vs Jorabhai(2) and repelled the contention which had been urged on behalf of the accused that the application in revision filed by the Government for enhancement of their sentence was incompetent, because their appeal from their convictions had been dismissed by the Court and it was not open to them again to show cause against their convictions. The decisions above referred to were held by the Court to be an authority for the proposi tion that the Court could under the circumstances proceed to consider whether the sentence imposed upon the accused should be enhanced, even though it was not open to the accused to show cause against their conviction. This decision was in our opinion not correct for the simple reason that once the judgment of the Appellate Court replaced that of the lower Court it was not competent to the High Court to issue a notice for enhancement of sentence in the exercise of its revisional jurisdiction under section 439(1) and no question could therefore arise of the accused being called upon to show cause why their sentence should not be enhanced. (1) I.L.R. 1945 Allahabad, 527. (2) Bom. 160 The High Court of Rajasthan in The Stafe, vs Bhawani Shankar(1) tried to reconcile the various points of view above noted by laying stress on the aspect of the accused having had an opportunity to show cause against his conviction and it observed that where an accused person had already been beard and thus given an opportunity to show cause against his conviction, whether it be in appeal or in revision and whether the dismissal was summary or on the merits, he could not be heard against his conviction a second time under section 439(6) as the principle of finality of orders in criminal proceedings would apply. But if the accused had not been heard at all and given no opportunity to show cause against his conviction and his jail appeal had been dismissed under section 421 of the Criminal Procedure Code, or his revision had been dismissed without hearing, he was entitled to ask the Court to hear him and thus allow him to show cause against his conviction under section 439(6), if a notice of enhancement was issued to him. The real question however in our opinion is not whether an opportunity has been given to the accused to show cause against his conviction at any time but whether the High Court is entitled to exercise its revisional powers under section 439(1) and issue a notice of enhancement of sentence upon the accused. If the accused had an opportunity of showing cause against his conviction either in an appeal or a criminal revision application filed by him or on his behalf and the conviction was confirmed on a full hearing in the presence of both the parties after the issue of the reqiuisite notice by the Court to the opposite party the judgment of the High Court would replace that of the lower Court which judgment could not be reviewed or revised by the High Court at all in exercise of its revisional powers under section 439(1). If however an order dismissing the petition of appeal or criminal revision application or even a reference made by the lower Court was made dismissing the same summarily or in limine without issuing notice to the opposite party or the parties concerned it would tanta (1) I.L.R. 161 mount to the High Court not entertaining any of these proceedings on the ground that no prima facie case had been made out for the interference of the Court. If such a prima facie case had been made out the High Court would admit the appeal or the revision application or entertain the reference and hear the matter fully in the presence of both the parties, ultimately pronouncing its judgment which would take the place of the judgment of the lower Court which would certainly not be subject to the exercise of revisional jurisdiction under section 439 (1) of the Criminal Procedure Code. We are of the opinion that the conclusion reached by the High Court of Rajasthan was correct and the accused in that case was rightly allowed by it to show cause against his conviction in spite of his petition of appeal from jail having been dismissed by it summarily, though we differ from the reasoning adopted by the Court in reaching that con clusion. Section 439(6) gives the accused a right to show cause against his conviction. It does not merely give him an opportunity to show cause against the same. The opportunity is given to him to show cause against the enhancement of sentence under section 439(2) of the Criminal Procedure Code and once be has got that opportunity, while showing cause against the enhancement of his sentence he has a right to show cause against his conviction which right he can ,exercise whether he had on an earlier occasion an opportunity of doing so or not; The real test is not whether the accused has had an opportunity of showing 'cause against his conviction but whether a judgment of the High Court pronounced after a full hearing in the presence of both the parties after notice issued in that behalf has replaced the judgment of the lower Court. If the judgment of the lower Court is so replaced there is no occasion at all for the exercise of the revisional powers under section 439(1) of the Criminal Procedure Code. If however no such judgment has replaced that of the lower Court the High Court has got the power to issue a notice for enhancement of the sentence and the accused has, in 21 162 spite of whatever has happened in the past, while showing cause against the notice of enhancement also the right to show cause against his conviction. The right which is thus conferred upon the accused under section 439(6) cannot be taken away by having resort to the principle of finality of judgments incorporated in section 369 of the Criminal Procedure Code. As we have observed above that principle comes into operation when once a judgment of the High Court has replaced that of the lower Court and in those cases the High Court would not be compe tent to review or revise its own judgment. The High Court would also not be then entitled to issue any notice for enhancement of sentence in the exercise of its revisional powers under section 439 (1) of the Criminal Procedure Code. Where however the High Court in exercise of its revisional power over the judgments of the lower Courts under section 439(1) issues a notice for enhancement of sentence and gives an opportunity to the accused of being heard either personally or by pleader in his own defence under section 439(2) the right which is given by section 439(6) to him also to show cause against his conviction comes into exist ence and this right of his cannot be ' negatived by having resort to the provisions of either section 369 or section 430 of the Criminal Procedure Code. Section 369 in terms provides, "save as otherwise provided in this Code" and section 439(6) would be an otherwise provision which is saved by this non obstante clause appearing in section 369. It is significant to note that both these amendments, the one in section 369 and the other in section 439 were enacted by section 119 of Act XVIII of 1923 and the very purpose of these simultaneous amendments would appear to be to effectuate the right given to the accused to show cause against his conviction as enacted in section 439(6) of the Criminal Procedure Code. It may also be noted that the right which is thus conferred on the accused under section 439(6) is not ,an unlimited or unfettered right as observed by Mr. Justice Mahajan in Emperor vs Atta Mohammad(1). (1) Lah. 391 (F.B.). 163 In the case of trials by jury where an accused person has been convicted on the verdict of a jury and is called upon under section 439(2) of the Criminal Procedure Code to show cause why his sentence should not be enhanced he is entitled under section 439(6) to show cause against his conviction, but only so far as section 423(2) of the Code allows and has not an unlimited right of impugning the conviction on the evidence. It has been held by the Allahabad High Court in Emperor vs Bhishwanath (1) that the combined effect of sections 439 (6) and 423 (2) is to entitle the accused to question the conviction by showing only that the Judge misdirected the jury or that the jury misunderstood the law laid down by the Judge in his charge. A similar conclusion was reached by the majority of the Judges in The Superintendent and Remembrancer of Legal Affairs, Bengal vs Jnanendra Nath Ghose & Another(1), where it was held that a person who had been convicted on his own plea of "guilty" under section 271(2) of the Criminal Procedure Code, in showing cause against a notice for enhancement of sentence, could only while showing cause against his conviction attack the propriety or legality of sentence but could not withdraw the plea of 'guilty ' or go behind such a plea as a confession of the facts charged. There are no doubt two other judgments, one of the Bombay High Court in Emperor vs Ramchandra Shankarshet Uravane (3) and the other of the Rangoon High Court in Nga Ywa and another vs King Emperor which appear to run counter to the ratio decidendi of these decisions of the Allahabad and the Calcutta High Courts respectively but we are not called upon to resolve that conflict, if any. Suffice it so say that the right which is conferred on the accused of showing cause against his conviction under section 439(6) of the Criminal Procedure Code is a right which accrues to him on a notice for enhancement of sentence being served upon him and he is entitled to exercise the same irrespective of what has happened in the past unless and until there is a judgment of the (1) I.L.R. 1937 Allahabad 308. (2) (3) (4) Rangoon 616. 164 High Court already pronounced against his conviction after a full hearing in the presence of both the parties on notice being issued by the High Court in that behalf. This right of his is not curtailed by anything contained in the earlier provisions of section 439 nor by anything contained in either section 369 or section 430 of the Criminal Procedure Code. We are therefore of the opinion that the decision reached by the High Court of Bombay in the case under appeal was wrong and must be reversed. We accordingly allow the appeal and remand the matter back to the High Court of Judicature at Bombay with a direction that it shall allow the Appellant to show cause against his conviction and dispose of the same according to law. BY THE COURT. The appeal is allowed and the order of the High Court of Bombay is set aside, and the matter is sent back to the High Court with a direction that it shall allow the appellant an opportunity to show cause ' against his conviction and dispose of the matter according to law.

The scheme of Ss. 78 to 84 of the Bombay Municipal Boroughs Act, 1925, shows that the official year is the unit of time for the levy of rates on buildings and lands. Under these provisions the provisional assessment list is prepared for the official year, either before the commencement or in the course of the official year, objections are invited, and amendments consequential upon the decisions on the objections are carried out in the list. The assessment list is then authenticated. The process of assessment and levy of tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated. The assessment list, when authenticated, becomes effective from the first day of the official year and gives rise to the liability or the rate payers to pay the tax levied. [889 C] For the assessment year 1951 52, the appellant followed the procedure but the authentication was on July 24, 1952, after the expiry of the official year on March 31, 1952. Since property tax in accordance with the revised rates was sought to be levied, the respondents filed a suit for a declaration that the appellant was not entitled to recover any property tax at the revised rates. The suit was decreed and the decree was affirmed by the High Court. In appeal to this Court, it was contended that, (1) the authentication of the assessment list in order to be valid and effective, need not be made before the expiry of the official year to which the assessment list relates; and (2) the suit was barred under section 206A of the Act. Dismissing the appeal, ^ HELD: (1) The assessment list in order to be effective in levying the tax must be authenticated before the expiry of the official year and if it is not, the assessment list would be void and inoperative and would not give rise to any liability in the rate payers to pay tax. [891 H] (a) Once the view is taken that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate payers, it follows that the authentication must be made within the official year. The tax being a tax for the official year must obviously be levied during the official year and since the levy of tax is complete only when the assessment list is authenticated it must follow a fortiori that the authentication must take place in the official year. Otherwise, the tax for an official year would be leviable at any time, without any time limit, even years after the expiration of the official year, which could not have been the intention of the legislature, since it is an annual tax intended to be levied for each official year. [889 D F] (b) Section 84 provides that it shall not be necessary to prepare a new assessment list every year but subject to the condition of revision once in every four years, the Chief Officer may adopt the assessment list for any year, with necessary alterations for the year immediately following. The provision 884 postulates that there would be an assessment list, that is, the authenticated assessment list, for each official year before the close of that official year so that it can be adopted by the Chief Officer for the immediately following year. Otherwise, he would have to prepare a new provisional assessment list every time when the Assessment List for the preceding year is not finalised and authenticated, and this might lead to the starting result of there being more than one provisional assessment list in the process of finalisation at the same time. [889 G 890 C] (c) In interpreting a provision of a statute the court is entitled and indeed bound to consider any other parts of the Act which throw light on the intention of the legislature. The statute must, therefore, be read as a whole and every provision in it must be construed with reference to the context and other clauses so as, as far as possible, to make a consistent enactment of the whole statute. Section 82(1) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events, after hearing any objections to the amendment, Section 82(3) makes the amendment effective from 'the earliest day in the current official year in which the circumstances justifying the entry or alteration existed. ' The expression clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place, that is, the official year which is running at the time when the amendment is made by insertion or alteration of an entry. Therefore, a combined reading of section 82(1) and (3) shows that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year. The scheme of sections 78 to 81 is identical with section 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment list in one case, and the altered entry in the other, are authenticated, giving rise to liability in the rate payer. It must follow a fortiori that if an alteration in the assessment list in order to fasten liability on the rate payer, is required to be made during the currency of the official year equally, the assessment list, in order to give rise to liability in the rate payer, must also be authenticated before the expiry of the official year. [890 C 891 B] Sholapur Municipality vs Governor General, 49 Bom. L.R. 752 and Sholapur Municipal Corporation vs Ramchandra 74 Bom. L.R. 489 referred to. (d) Three High Courts having jurisdiction over the territories in which the Act is in force have all taken this view over a course of years and this Court will not be justified in departing from it, merely on the ground that a different view is possible. This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. [891 C D] (e) In the present case, the Bombay Legislature has accepted the interpretation of sections 78 to 81 by the three High Courts and given legislative recognition to it by introducing section 84A by Bombay Act 53 of 1954. This provision makes it clear that the legislature not only did not amend the Act for the purpose of removing the time limit of the official year as interpreted by the High Courts or enlarging such time limit, but on the contrary, made the time limit more stringent by providing that the authentication shall be made by the Municipal Borough not late than July 31, of the official year, and that if the authentication is not made within that time, the State Government shall be entitled to appoint a person for the purpose of authenticating the assessment list and that the authentication by such person shall not, in any event, be later than the last day of the official year. [891 D H] (2) Section 206A provides, inter alia, that no suit shall lie against a municipality in respect of any act done in pursuance of execution or intended execution of the Act unless it is commenced within 6 months next after the accrual of the cause of action. It could not, however, be contended that the cause of action for the suit in the present case arose in favour of the respondents and other rate payers on July 24, 1952, when the list was authenticated and that the suit, not having been filed within 6 months of that date, is barred. The assessment list in the present case was authenticated after the expiry of 885 the official year and was void and inoperative and the respondents and other rate payers were entitled to ignore it as a nullity. Their cause of action arose only when the appellant sought to recover the amount of tax from them on the strength of that assessment list. In the absence of material to show when the notices demand requiring the respondents and other rate payers to pay the amount of tax were issued, or which rate payers paid and when it is not possible to say whether the cause of action for filing the suit arose to the respondents within six months before the filing of the suit or earlier. [892 A E]

ivil Appeal No. 4128 of 1988. PG NO 961 From the Judgment and Order dated 3.8.1988 of the Bombay High Court in W.P. NO. 28 of 1987. V.N. Ganpule and Mukul Mudgal for the Appellant. A.S. Bhasme, B.R. Agarwala and Mrs. Sushma Manchanda for the Respondents. The Judgment of the Court was delivered by DUTT, J. Special leave granted. Heard learned Counsel for both the parties. The appeal is directed against the judgment of the Bombay High Court whereby the High Court dismissed the writ petition of the appellant challenging, inter alia, the legality of the action of the respondents refusing to admit the appellant in the post graduate M.D. Course in Obstetrics and Gynaecology for the 1987 session. The appellant passed the MBBS examination from the Kakatiya Medical College under the University of Kakatiya. Warangal, in the State of Andhra Pradesh. She obtained 72%, 66.63% and 67.5% marks in the first, second and third MBBS examinations. She was awarded Governor 's Gold Medal by the State of Andhra Pradesh for her consistent high merit at the MBBS examinations. In August, 1985, she completed her one year internship. She married one Dr. Ashok Patwardhan, a Government Medical Officer working in the State of Maharashtra. He was transferred to Solapur in January, 1985. The appellant had to come to Solapur in October, 1985 and since then she has been residing there with her husband. After coming to Solapur, she intended to prosecute her studies in the post graduate M.D. Degree Course in Obstetrics and Gynaecology in Dr. V.H. Medical College, Solapur, under the Shivaji University, the respondent No. 2. Rules X(2) and (3) of the Rules regulating the appointments of Housemen and House Surgeons at the hospital attached to the Government Medical Colleges in the State of Maharashtra, hereinafter referred to as 'the Rules '. provide as follows: "X. . . . . . . . . . . . . . . . . . PG NO 962 Government have from time to time sanctioned supernu merary posts (1). . . . . . . . . . . . . (2) to allow spouses of Government servants on transfer to undertake studies, if standing high in merit (which means not less than 55% at first attempt in the subject) from another college; (3) to allow students of other colleges in Maharashtra to compete on merit for posts so as to conduct post graduate course for which facilities are not existant or very meagre in their own college. These supernumerary posts should be awarded after fullest consideration of these principles in the above order and on merit and it is not incumbent to fill all of them or to reserve them . . . . . . It is understood that granting of registration does not absolve a candidate from competing on merit and if he cannot earn post on merit, his registration would lapse for failure to compete housemanship requirements . . . ." The appellant made an application to the Government of Maharashtra praying for the creation of a Housepost in Obstetrics and Gynaecology under rule X(2) so as to enable her to do post graduate studies in Dr. V.M. Medical College, Solapur. As she fulfilled and requirements of rule X(2), namely, that she is the wife of a Government servant on transfer and that she stood high in merit securing more than 55% marks in Obstetrics and Gynaecology in her MBBS examination, the Dean of the College specifically recommended her case for the creation of such a supernumerary Housepost. While the application of the appellant was under consideration, the appellant was selected for a Housepost in Surgery in the said College. She joined the Housepost in Surgery in January, ]986 and completed the same in July, 1986. But, in order to be eligible for post graduate studies in Obstetrics and Gynaecology, she was to join another Housepost in Obstetrics and Gynaecology. On July 2, 1986, the Government of Maharashtra in exercise of its power under rule X(2) created a Housepost in Obstetrics and Gynaecology with effect from July 15, 1986 specifically and categorically stating that the PG NO 963 supernumerary Housepost was created to enable the appellant to complete her post graduate studies at Dr. V.M. Medical College, Solapur. The Government resolution dated July 2, 1986 is extracted below: "Government hereby grants permission for creation of one supernumerary non stipendary post of Houseman with effect from 15.7.1986 for a period of six months at Dr. Vaishampayan Memorial Medical College, Solapur, to enable Dr. Mrs. S.A. Patwardhan to complete her Post Graduate Course in the subject of Gynaecology and Obstetrics. Mrs. Patwardhan should join the said post within 10 days from 15.7.1986. In the event of her not joining the said post will be treated as abolished. By order and in the name of the Governor of Maharashtra. Sd/ J.P. Budhwant Deputy Secretary Govt. of Maharashtra" The Dean of the College called upon the appellant to join the Housepost and not to quit the same before completing the term inasmuch as the Housepost was specifically created to enable the appellant to complete her post graduate studies at Dr. V.M. Medical College, Solapur. The appellant joined the Housepost and duly completed the same. The Dean of the College issued an advertisement inviting applications for the post graduate seats in various disciplines for January, 1987 batch. The appellant made an application praying for the issuance of an application form for the M.D. Course in Obstetrics and Gynaecology, but no such form was issued to her. In other words, the appellant was refused admission in the M.D. Course at Dr. V.M. Medical College, Solapur. Being aggrieved by the action of the Dean of the College, the appellant filed a writ petition in the Bombay High Court. The High Court, as stated already, dismissed the writ petition holding, inter alia, that no inference could be drawn that everybody who completed the house job was entitled to get admission to the post graduate course ipso PG NO 964 facto and that granting of registration for house job would not amount to admission to the post graduate course in a Medical College. Hence this appeal. There can be no doubt that there is no question of automatic admission in the post graduate course, simply because one has completed the house job or housemanship. It is not the case of the appellant that as she completed the housemanship, she has acquired a right of automatic admission to the post graduate degree course in the said College. Her complaint is that she was not even given an application form for the post graduate degree course. The College authorities or the University did not at all consider her case for admission. The High Court has not considered this aspect of the appellant 's case. It is contended by the learned Counsel appearing on behalf of the respondents that in view of the provision in the Rules giving institutional preference in the matter of admission, the appellant could not be admitted. The other ground that has been urged on behalf of the respondents is that as the appellant passed the MBBS examination from the Kakatiya University in the State of Andhra Pradesh and as there is failure on the part of the State of Andhra Pradesh to reciprocate with regard to reservation of 25% of the total number of seats in the matter of admission to post graduate degree course in Medical Science, the respondents were justified in refusing admission to the appellant. So far as the first contention is concerned, we do not think that there is any merit in the same. All the seats in the post graduate degree course in Obstetrics and Gynaecology are not reserved for the candidates passing the MBBS examination from the said Dr. V.M. Medical College, Solapur. It is not disputed that certain percentage of seats are reserved for the students of the College. But, no application form was issued to the appellant and, accordingly, the question of not admitting the appellant on the ground of institutional preference or institutional reservation of seats does not arise. In our opinion, the first ground founded on institutional preference seems to be a mere plea. The real ground for refusal to issue even an application form for admission to the appellant is the failure of reciprocity on the part of the State of Andhra Pradesh. The State of Maharashtra, in our opinion, is entitled to refuse to admit any student passing the MBBS examination from any Medical College in the State of Andhra Pradesh, as that State has not reciprocated in the matter of admission to post graduate degree courses in Medical Colleges of that State. But, in the facts and circumstances PG NO 965 of the present case, the respondents are not at all justified in refusing to admit the appellant in the postgraduate degree course. The most glaring fact in this respect is that on the prayer of the appellant a supernumerary Housepost was created so as to enable the appellant to become eligible for the post graduate degree course. It is not the case of the respondents that they were not aware of the fact that the appellant had passed her MBBS examination from a Medical College in the State of Andhra Pradesh. Indeed, it has been categorically averred by the appellant that in her application for the creation of a supernumerary Housepost, she disclosed all facts including the fact of her passing the MBBS examination from the said Medical College in the State of Andhra Pradesh. The State of Maharashtra after considering all facts and circumstances including the high merit of the appellant specifically created a supernumerary Housepost for the appellant. After the appellant had completed her house job and applied for the issuance of an application form for the post graduate degree course, she was refused an application form, presumably on the ground that she had passed her MBBS examination from a Medical College in the State of Andhra Pradesh. In our opinion, the appellant could be refused at the very outset, that is to say, her application for creation of a supernumerary Housepost could be turned down on the ground of failure to observe reciprocity by the State of Andhra Pradesh. But, after creating the supernumerary Housepost specifically for the appellant so as to enable her to become eligible for the post graduate degree course the respondents, in our opinion, are not at all justified in refusing her even an application form and in not considering her case for admission to post graduate degree course, on the ground of failure of reciprocity by the Andhra Pradesh State. We fail to understand how the College authorities and the Government could take this attitude so far as the appellant is concerned. In our opinion, it was unreasonable and unjust for the respondents to refuse admission to the appellant on a ground which is not at all tenable in the facts and circumstances of the case. It is not disputed that the appellant has all the requisite qualifications for admission in the post graduate degree course. She applied to admission in the session commencing from January, 1987, but she was not admitted. The 1988 sessions has also passed, as the appellant had to file a writ petition before the High Court of Bombay which, as noticed already, was dismissed by the High Court. The appellant prays that she may be admitted in the post graduate course in Dr. V.M. Medical College in the 1989 session. PG NO 966 The facts stated above reveal that the appellant has been harassed to a great extent. She was misled by the fact of the creation of a supernumerary Housepost for her by the State of Maharashtra. She has already lost two years of her academic career. Normally, this Court does not interfere in the matter of admission of students in an educational institution. Even if it interferes, it generally directs the authorities concerned to consider the question of admission in accordance with the rules of the institution. But, in the peculiar facts and circumstances of the case, particularly the fact that the appellant had to lose two years of her academic career for no fault of hers, we direct the respondens to issue to her an application form for admission in the post graduate M.D. Course in Obstetrics and Gynaecology and we further direct that after the submission of the application form and compliance with other formalities by the appellant, she shall be admitted in the post graduate course in Obstetrics and Gynaecology in Dr. V.M. Medical College, Solapur, in the 1989 session, provided she is not otherwise unfit. The learned Counsel appearing on behalf of the Indian Medical Council also supports the case of the appellant for her admission in the 1989 session. The judgment of the High Court is set aside and the appeal is allowed. There will, however, be no order as to costs. M.L.A. Appeal allowed.

Many explosions took place in May 1985 in Delhi and Uttar Pradesh killing many persons. Consequently, a number of cases were registered. In Delhi, FIR No. 238 of 1985 was registered wherein the respondent and another accused turned approvers and were granted pardon under section 306 of the Code of Criminal Procedure, 1973. Both these approvers however resiled from their statements in the Court of the Committing Magistrate. Four Criminal cases pending in Meerut were later transferred by the Supreme Court to the Court of the Chief Metropolitan Magistrate, Delhi, to be tried along with the case arising out of FIR No. 238 of 1985. In the supplementary committal proceedings in case FIR No. 238 of 1985, the respondent objected to his being summoned as an approver on the ground inter alia that he could not be examined as a witness in the case because he was figuring as an accused person in the other four cases on the same facts and circumstances, which were being jointly tried. The Chief Metropolitan Magistrate dismissed the application. The High Court allowed the respondent 's revision petition and directed the State not to examine the respondent as an approver in case F.I.R. No. 238 of 1985. In the appeal before this Court, it was inter alia contended that the prosecution could not examine the respondent as a witness because he had cast away the pardon granted to him. Allowing the appeal, HELD: 1. The pardon granted to the respondent was accepted by him and he was examined as a prosecution witness in the Court of the Committing Magistrate, though he resiled from his statement there. [1097C] PG NO 1093 PG NO. 1094 2. It is a mandate of the provisions of the Criminal Procedure Code to the prosecution to examine the approver to whom pardon had been granted as a witness both in the Committing Court as well as in the trial court. [1097E] 3. Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offencc and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate that the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him, till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court. [1097H; 1098A B] 4. The respondent who has been granted pardon in case F.I.R. No. 238 of 1985 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question. [1100D] In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor vs Shandino Bhaniperto, AIR 1940 (Sind) 114 referred to. Once an accused is granted pardon under section 306, he ceases to be an accused and becomes a witness for the prosecution. So long as the prosecution does not certify that he has failed to make a full and true disclosure of the whole of the circumstance within his knowledge relating to the offence, he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court. [1099H; 1100A B] A.J. Peiris vs State of Madras, AIR 1954 (SC) 616 referred to. A witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to incriminate him directly or indirectly. [1100G] 7. The proviso to section 132 of the Indian Evidence Act clearly protects a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly. [1101A] PG NO. 1095 8. The apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused was without any basis. On the other hand, he was absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver. [1101B C]

Civil Appeal No. 1396 of 1982. Appeal by Special leave from the Award dated the 26th July, 1980 of Shri A.K. Thorat, Industrial Tribunal, Maharashtra, Bombay passed in Reference (IT) No. 54 of 1980. M.K. Ramamurthi, P. Gaur, Jitendra Sharma for the Appellants. G.B. Pai, O.C. Mathur, section Kumaran, Ms. Meera Mathur, D.N. Misra for the Respondents. The following Judgments were delivered by CHINNAPPA REDDY, J. : The workmen of the Bharat Petroleum Corporation Limited, Bombay raised an Industrial dispute with regard to the retirement age of the clerical staff employed in the Refinery Division of the Bharat Petroleum Corporation Limited at Bombay. The demand of the workmen was that the retirement age of the clerical staff of the Refinery Division at Bombay must be raised from 55 years to 60 years in keeping with the 'trend ' in the Bombay region. The Company resisted the demand on the ground that in all similar oil companies, the retirement age of the clerical 255 staff engaged in the Refinery Division had never been fixed at 60 years. Before the Industrial Tribunal, Maharashtra at Bombay to whom the dispute was referred for adjudication, neither party led any oral evidence. The workmen relied upon several decisions of this court to establish that the trend of industry in Bombay was to fix the retirement age of the clerical staff at 60 years, while the company contented itself by filing a statement showing the age of retirement of clerical staff employed in various oil companies. The Industrial Tribunal found as a fact that the wage scales of the company were not much better than the wage scales of other comparable concerns. The Industrial Tribunal also noticed that the age of retirement of the clerical staff of the company in its Marketing Division both at Bombay and other places was fixed at 58 years. The Industrial Tribunal, therefore, held that there was no valid reason why the retirement age of the clerical staff employed in the Refinery Division should not be raised at least to 58 years. But having regard to the circumstance that the clerical staff employed in the Refinery Division had already been granted, under a settlement, the benefits of Provident Fund and Gratuity and having further regard to the fact that while the number of members of the clerical staff employed in the Refinery Division was 148 only, there were as many as 1095 workmen in the non clerical category, who would also surely raise a dispute to revise their retirement age, the Industrial Tribunal thought that in the interest of industrial harmony, it would be proper to raise the retirement age of the clerical staff to 58 years only and not to 60 years. The workmen have preferred this appeal under article 136 of the Constitution. As before the Industrial Tribunal, so too before us, the workmen relied on the 'trend ' in the Bombay region while the company relied on the position in other oil companies. In fixing the age of retirement, several factors have to be taken into consideration. These factors have been explained at length in Guest, Keen, Williams Private Ltd. vs P.J. Sterling & Ors., Dunlop Rubber Company Limited vs Workmen & Others, Imperial Chemical Industries (India) Pvt. Ltd. vs Workmen, British Paints (India) Ltd. vs Its Workmen, G.M. Talang 256 vs Shaw Wallace & Co. ' and Burmah Shell Oil Storage of Distributing Company of India Ltd. vs Their Workmen. Guest, Keen Williams Private Ltd. vs P. J. Sterling & Others was a case from Calcutta and it may not be useful to discover the trend in the Bombay region. However, some of the relevant factors to be taken into account in fixing the age of superannuation have been stated and we may usefully extract the observations made by the learned judges in that case. It was said: "In fixing the age of superannuation industrial tribunals have to take into account several relevant factors. What is the nature of the work assigned to the employees in the course of their employment ? What is the nature of the wage structure paid to them ? What are the retirement benefits and other amenities available to them ? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region ? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees ? These and other relevant facts have to be weighed by the tribunal in every case when it is called upon to fix an age of superannuation in an industrial dispute. " The 'trend ' of industry in the Bombay region to raise the age of retirement from 55 to 60 years was noticed by this court in Dunlop Rubber Company vs Workmen & Others, Imperial Chemical Industries (India) Pvt. Ltd. vs Workmen, British Paints (India) Ltd. vs Its Workmen, G.M. Talang vs Shaw Wallace & Co. and Burmah Shell Oil Storage & Distributing Company of India Ltd. vs Their Workmen. In the Dunlop Rubber Company case, the Tribunal noticed that the trend in the Bombay region was to raise the age of retirement to sixty years for clerical staff and, accordingly, raised the age of the clerical staff of the company to sixty years, notwithstanding the fact that in the previous agreement, the retirement age was 257 fixed at 55 years. The Supreme Court upheld the award as it accorded with the prevailing conditions in many concerns in that region. One of the submissions made to the Supreme Court was that the clerical staff of the company employed in Bombay was a small minority of the total clerical staff employed by the company through out India, that in the case of the large majority employed outside Bombay, the age of retirement was 55 and, therefore, the retirement age of the small minority of workmen employed in Bombay should not be raised from 55 to 60 years. It was argued that the company was an All India concern and occupied a special position, and it was, therefore, desirable and proper that no change should be made to benefit a small minority of workmen employed in Bombay. The submission was repelled by the Supreme Court and it was observed: "There is no doubt that in the case of an all India concern it would be advisable to have uniform conditions of service through out India and if uniform conditions prevail in any such concern they should not be lightly changed. At the same time, it cannot be forgotten that industrial adjudication is based, in this country at least, on what is known as industry cum region basis and cases may arise where it may be necessary in following this principle to make changes even where the conditions of service of an all India, concern are uniform. Besides, however, desirable uniformity may be in the case of all India concerns, the Tribunal cannot abstain from seeing that fair conditions of service prevail in the industry with which it is concerned. If, therefore, any scheme, which may be uniformly in force through out India in the case of an all India concern, appears to be unfair and not in accord with the prevailing conditions in such matters, it would be the duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing conditions in such matters, particularly in the region in which the tribunal is functioning irrespective of the fact that the demand is made by only a small minority of the workmen employed in one place out of the many where the all India concern carries on business. " It will be seen that great emphasis was laid on the conditions prevailing in the region even to the extent of overriding the conditions 258 of service of other workmen in the employment of the very company elsewhere. In Imperial Chemical Industries (India) Pvt. Ltd. vs The Workmen, Gajendragadkar, J observed: "It is generally recognised in industrial adjudication that where an employer adopts a fair and reasonable pension scheme that would play an important part in fixing the age of retirement at a comparatively earlier stage. If a retired employee can legitimately look forward to the prospect of earning a pension then the hardship resulting from early compulsory retirement is considerably mitigated; that is why cases where there is a fair and reasonable scheme of pension in vogue would not be comparable or even relevant in dealing with the age of retirement in a concern where there is so much pension scheme". In that case it was submitted by the Attorney General who appeared for the company that the company was an All India concern and it was of great importance that the terms and conditions of service prevailing in several branches of the company all over the country should be stable and uniform and that in the matter of retirement the company had uniformly fixed the age of retirement at 55 since 1950 and this arrangement should not be disturbed because it would inevitably upset the age of retirement in all other branches. It was also submitted that the Tribunal had raised the age of retirement from 55 to 58 and that the Supreme Court should not interfere with the decision of the Tribunal and further raised it to 60. It was also urged that the general terms and conditions provided by the company to its employees were very liberal and that the industrial concerns in Bombay where the age of retirement had been fixed at 60 were not comparable to the company and, therefore, no importance should be attached to the trend disclosed by those companies. All these submissions were rejected by the court on the primary consideration that the recent trend in the Bombay area clearly appeared to be to fix the age of retirement at 60. In British Paints India Limited vs Its Workmen, this court expressed the view that there had been a general improvement in the standard of health in the country and that longevity had increased and therefore, fixation of age of retirement at 60 years appeared to 259 be quite reasonable in the circumstance. The court, further observed that the age of retirement at 55 years was fixed in the last century in Government service and had become the pattern for fixing the age of retirement every where. The court then said: "But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement". In G.M. Talang vs Shaw Wallace & Co. reference was also made to the report of the Second Pay Commission which had referred to the age of retirement in 48 countries of the world and to the report of the Norms Committee, a Committee on which both employers and employees of the Bombay region were represented, which had said: "After taking into consideration the views of the earlier Committees and Commissions including these of the Second Pay Commissions the report of which has been released recently, we feel that the retirement age for workmen, in all industries, should be fixed at 60 years. Accordingly the norm for retirement age is fixed at 60". The comment of the court on the report of the Norms Committee was: "This considered opinion of a Committee on which both employers and employees were represented emphasised the fact that in the Bombay region, at least there is a general agreement that the age of retirement should be fixed at 60. " In the Burmah Shell Oil Company case, this court observed. "In fixing the age of superannuation the most important factor that has to be taken into consideration is the trend in a particular area. That position is made clear by this court in Talang (G M ) and Others vs Shaw Wallace & Co. Ltd. There is no denying the fact 260 that life expectation has greatly increased in recent years due to healthier living conditions, better food and improved medical facilities though we have still a long way to go in that regard. Under modern conditions, speaking generally, the efficiency of workmen is not impaired till about 60 years. The needs of a workman are likely to be greater between the age of 50 to 60 years as during that period he has to educate his children, marry his daughters, in addition to maintaining his family. If one looks at the word trend it is obvious that the age of superannuation is gradually pushed up. . . . . . . . . . . . .As we said earlier, in the matter of fixing the age of superannuation, the trend in a particular area is the most important factor, though in the matter of determining the other conditions of service of workmen, the principle of region cum industry is by and large the determinative factor. . . . . . . . . ."From the various decisions rendered by this court and by the tribunals, it is obvious that the trend is to raise the age of superannuation. It is also clear from those decisions that so far as Bombay, Calcutta and Delhi areas are concerned, the trend appears to raise the age of superannuation to 60 years. " On the facts of the case, however, the court noticing that in the appellant company, there was a fair pension scheme for the clerical staff, fixed the age of superannuation in their case at 58 years, while leaving untouched the decision of the Tribunal fixing the retirement age of other workmen at 60 years. It is to be noticed that the four cases which related to the Bombay region were all of the early sixties. Two decades have passed, Industrial and labour conditions do not remain stagnant despite the passage of time. Industrial labour relations need revision from time to time to fit and suit changing conditions. That there was an upward trend to raise the age of retirement to sixty in the early sixties may not necessarily mean that the same trend has continued till today. But, in the present case, the company did not plead that there was any reversal of the trend nor did Shri G.B. Pai, learned counsel for the company, urge before us that there was any such reversal of the trend. On the other hand, it may very well be said 261 that there has been much progress in the last two decades in the matter of better living conditions and availability of medical and health facilities and, therefore, a further raise of the age of retirement may be considered necessary and justified. Shri Pai rightly did not urge before us that there was any reversal of the trend in the Bombay region and we are, therefore spared from going into that question. In the Dunlop Rubber Company Case and in the Imperial Chemical Industries Case, the Supreme Court primarily relied on the trend in the region and in the Burmah Shell oil Company case, the Court observed that the trend in a particular area was the most important factor in the matter of fixing the age of superannuation. Another factor which appears to be receiving importance in certain circles is the rising rate of unemployment amongst the younger generation. The effect of increasing or decreasing the age of retirement on the rate of unemployment in the younger generation and on the household economics of the older generation is a matter for deep study and investigation. There is no evidence before us on these points. Nowadays, as pointed out in the Burmah Shell oil Company 's case and other cases, because of better conditions of living and availability of medical and health facilities, the average span of life has increased and a person between 55 and 60 years of age is alert, active, hale and healthy and may be said to be at the prime of his life. That is also the time when he has to meet several financial commitments and demands. To retire him at that age may mean virtually to throw him to the wolves. Can the nation afford to have on its hand several families unable to fully support themselves ? Can the nation afford to throw away the knowledge and experience of these people by retiring them when they are still capable of turning out some years of good work ? On the other hand, can the nation afford to have an army of unemployed, youngmen, necessarily leading bitter and frustrated lives ? Can the nation afford to allow them to fritter away their energies in unhealthy pursuits to which they may be tempted ? But then arises the broader question, is the retirement of men of experience at an age when they are still useful to the community the proper solution to the problem of unemployment among the young ? Is it not an unimaginative solution ? Is not the solution the creation of greater employment opportunities, by increasing production and its modes ? All these are questions which are difficult to answer though everyone has an opinion, often ad hoc. These questions require deep investigation, research and study. We cannot properly answer them nor is there any evidence on these points. The counsel, we must say in fairness, refrained 262 from arguing that the retirement age should not be raised because of the rising rate of unemployment and we also refrain from expressing any opinion. The workmen were content to rely on the undoubted trend as revealed by the decisions of this court and the company was content to rely on the comparative statement of retirement age of clerical staff in other oil companies. We are compelled to decide this case on the limited material available to us and we, therefore, confine the decision to the facts of the case. The Tribunal noticed that the age of retirement of the clerical staff of the company in its Marketing Division was 58 years and observed: "Similarly, it is apparent that the company has fixed the age of retirement of the clerical staff in its Marketing Division, both in Bombay and other places at 58 years. I do not find any valid reason while the concerned workmen should be denied a raise in the age of their retirement at least to the extent of 58 years." So according to the Tribunal, the retirement age of the clerical staff of the Refinery Division had to be increased at least to 58 years, since the retirement age of the clerical staff of the Marketing Division of the Company had been fixed at years. The relevant and outstanding fact which the Tribunal failed to notice here was that the clerical staff of the Marketing Division have a pension scheme while the clerical staff of the Refinery Division have no such scheme. The general terminal benefits on attaining the age of superannuation are pension, gratuity and provident fund. It is not in dispute that while the clerical staff of the Marketing Division have all three terminal benefits, the clerical staff of the Refinery Division are not entitled to any pension. This must necessarily have an impact on the raising of their retirement age. Therefore, without travelling outside the very company, we think that the Industrial Tribunal fell into a serious error in failing to notice that there was no pension scheme in the case of clerical staff of the Refinery Division while there was such a scheme in the case of a clerical staff of the Marketing Division. On the material available to us, we think that the retirement age in the case of clerical staff of the Division should be fixed at 60 years. Shri G.B. Pai, learned counsel for the Respondent Corporation drew our attention to the circumstances that the new scales of pay 263 of the clerical staff of the Refinery Division of the Respondent Corporation compared favourably with the scales of pay of the clerical staff of other refineries elsewhere in Indian and were higher than the scales of pay of the clerical staff of the Marketing Division of the Respondent Corporation itself. Shri Pai, however would not go so far as to say that the scales of pay were so designed taking into account the provision for pensionary benefits or the lack of it. He could not do so for the obvious reason that it would be an irrelevant consideration unless he could assert that the wage structure took into account the 'capacity for savings ' factor. Again, obviously, he could not so assert as that was never the company 's case and also in view of the rising universal inflationary trend of which we are bound to take judicial notice. The differing nature and conditions of work may well be the reason for the different scales of pay. We assume nothing and so we make no comment one way or the other in the absence of evidence. It is enough for the present purpose to say that the Tribunal did not base its conclusion on this circumstance. Shri Pai invited our attention to the circumstance that in other refineries elsewhere in India, the retirement age of clerical staff has generally been fixed at 58. But we are primarily concerned with the trend in the Bombay region. In matters of this nature, greater importance must naturally be given to the regional factor That was why in the Dunlop case, emphasis was laid on the "prevailing conditions, particularly in the region", in the Imperial Chemical Industries case, the trend in the Bombay region was considered the most vital factor and in the Burmah Shell case, it was stressed that in fixing the age of superannuation, the most important factor that had to be taken into consideration was the trend in the particular area. We may add here that in applying the region cum industry formula, the emphasis to be placed on region or industry depends upon varying factors. In Greaves Cotton and Co. Ltd. vs Their workmen, this Court observed that where the number of industries of the same kind in a particular region was small, it was the regin aspect of the industry cum region formula which assumed importance particularly in the case of clerical and subordinate staff. Reference was made to Workmen of Hindustan Motors vs Hindustan Motors and French Motor Car Company vs their Workmen and it was said: 264 "Where there are a large number of industrial concerns of the same kind in the same region, it would be proper to put greater emphasis on the industry part of the industry cum region principle as that would put all concerns on a more or less equal footing in the matter of production costs and therefore, in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose wages and dearness allowance also go into calculation of production costs. But where the number of comparable concerns is small in a particular region and therefore, the competition aspect is not of the same importance, the region part of the industry cum region formula assumes greater importance particularly with reference to clerical and subordinate staff and this was what was emphasised in the French Motor Car Company case where the company was already paying the highest wages in the particular line of business and therefore comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage scales and dearness allowance. The principle therefore which emerges from these two decisions in that in applying the industry cum region formula for fixing wage scales the tribunal should lay stress on the industry part of formula if there are a large number of concerns in the same region carrying on the same industry; in such a case in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small, it is the region part of the industry cum region formula which assumes importance particularly in the case of clerical and subordinate staff, for as pointed out in the French Motor Car Company case there is not much difference in the work of this class of employees in different industries. " In French Motor Car Co. vs Their workmen, an argument was advanced that the appellant company was paying the highest wage scales in a particular line of business in which it was engaged and there was, therefore, no justification for increasing the wage scales 265 by comparison with wage scales in other lines of business. This argument was rejected with the following observations: "We are of opinion that this argument cannot be accepted, for it would then mean that if a concern is paying the highest wages in a particular line of business, there can be no increase in wages in that concern whatever may be the economic conditions prevailing at the time of dispute. It seems to us, therefore, that where a concern is paying the highest wages in a particular line of business, there should be greater emphasis on the region part of the industry cum region principle, though it would be the duty of the industrial court to see that for purposes of comparison such other industries in the region are taken into account as are as nearly similar to the concern before it as possible. Though, therefore, in a case where a particular concern is already paying the highest wages in its own line of business, the industrial courts would be justified in looking at wages paid in that region in other lines of business, it should take care to see that the concerns from other lines of business taken into account are such as are as nearly similar as possible, to the line of business carried on by the concern before it." In Workmen of Orient Paper Mills Ltd. vs Orient Paper Mills Ltd, this Court relying on the French Motor Car Company case held that where two other paper industries in the region are of recent origin and their profits were smaller, it was the duty of the Industrial Tribunal not to compare the appellant company with those companies, but to compare the same with other industries in the region, three of which were collieries, two cement companies, on a steel plant and one aluminium factory. These decisions make it clear that where there are no comparable industries in the region, the regional aspect of the region cum industry formula must be given precedence. That was what was done in the Dunlop Rubber Co., the Imperial Chemical Industries and the Burmah Shell oil Co. cases. Rightly, therefore, the Tribunal did not rest its conclusion on this factor. 266 Shri Pai informed us that even in the case of the clerical staff of the Marketing Division, there is no longer any pension scheme for those that have joined the Corporation after nationalisation. This again was not one of the grounds on which the Tribunal rested its conclusion and we wish to say no more about it, as we do not want to jeopardise any claim that the workmen may have on that basis or any answer that the Management may have in that regard. In the result the appeal is allowed and the retirement age of the clerical staff of the Refinery Division of the company is fixed at 60 years, There will be no order as to costs. VARADARAJAN, J. This appeal by special leave is directed against the award dated 1.7.1980 made by the Industrial Tribunal, Bombay in I. T. No. 84 of 1980 raising the age of retirement of the clerical employees of the Refineries Division of the respondent from 55 years to 58 years in so far as it rejected the claim of the appellants to the age of retirement being raised to 60 years. The dispute referred to the Industrial Tribunal, Bombay was between the Bharat Petroleum Corporation Limited, Bombay (for short "Company") and their Workmen represented by the Burmah Shell Refineries Clerical Staff Union (for short "first union") and the Petroleum Workmen 's Union (for short "second union"). The Company has a marketing division and a refinery division at Bombay. The age of retirement of the clerical employees of the Company is 58 years in the marketing division and 55 years in the refinery division. The question for consideration by the Tribunal was whether the age of retirement of the clerical employees of the Company 's refinery division should be raised to 60 years from 55 years. The retirement age of the clerical employees of the refinery division had been fixed at 55 years by a settlement dated 31.10.1973 which was to be in force for a period of four years and thereafter until it is terminated in accordance with the provisions of s.19(2) of a the . The period of four years fixed in that settlement expired on 31.10.1977 and the first union terminated that settlement in so far as it related to the age of retirement of the clerical employees of the refinery division by a notice dated 6.4.1979 after making a demand by a notice dated 15.1.1979 on the Company to raise the age of retirement of these clerical employees to 60 years. The first union 's contention according to its claim statement was that the model standing orders provide for the age of retirement of the clerical employees being 60 years and there is a 267 trend in the Bombay region to fix the age of retirement of clerical employees at 60 years and in the comparable concerns as well as in the marketing division of the Company itself the age of retirement of the clerical employees is above 55 years and, therefore, the present age of retirement of the clerical employees of the refinery division is low and should be raised from 55 years to 60 years with effect from the date of the reference. The second union put forward almost similar grounds in its claim statement filed in support of the demand of the clerical employees of the refinery division. The Company denied in its statement of defence that the model standing orders framed by the Central Government provide for the age of retirement being 60 years and contended that the settlement dated 31.10.1973 was a package deal arrived at in consideration of the union agreeing inter alia to the age of retirement being fixed at 55 years and the Company revised certain benefits which would not have been revised otherwise. The Company disputed the correctness of the grounds relied upon by the unions in support of their claim for raising the age of retirement of the clerical employees of the refinery division to 60 years. The Tribunal rejected the Company 's contention that the reference itself is not competent in view of the said settlement dated 31.10.1973 as being untenable. That question is not in dispute in this appeal. The parties filed a joint statement before the Tribunal saying that they do not want to let in any oral evidence. The Company and the first union produced their respective comparative statements. In addition to the comparative statement, strong reliance was placed by the unions on what is called the trend in the Bombay region to fix the age of retirement at 60 years. The Company 's comparative statement showed that on 1.4.1980 there were 148 clerical employees and 1095 non clerical employees in the Company and provided information in regard to wage scales and other benefits such as provident fund and gratuity and admitted that the age of retirement of the clerical employees in the Company 's marketing division at Bombay is 58 years while that of the clerical employees of the Company 's refinery division at that place is only 55 years. It was contended for the Company before the Tribunal that the wage scales of the clerical employees covered by this reference are far better than those of similar categories of employees in comparable 268 concerns and that the Company took a generous view in the settlement dated 31.10.1973 and arrived at a package deal and revised the benefits of the employees taking into consideration the agreement of the employees to continue the age of retirement of the clerical employees of the refinery division at 55 years. The Tribunal found that the contention regarding the settlement being a package deal in regard even to the age of retirement after taking other benefits into consideration was not without substance and observed that it is, however, not sufficient to reject the demand of the clerical employees of the refinery division for raising the age of retirement in toto and that it has to be taken into account while considering the extent to which the age of retirement should be raised. The following observation made by this Court in Guest Keen Williams Private Ltd. vs Sterling and others was noticed by the Tribunal: "In fixing the age of superannuation the Industrial Tribunals have to take into account several relevant factor. What is the nature of the work assigned to the employees in the course of their employment ? What is the nature of the wage structure paid to them ? What are the retirement benefits and other amenities available to them ? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region ? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees ? These and other relevant facts have to be weighed by the tribunal in every case, when it is called upon to fix an age of superannuation in an industrial dispute. " The Tribunal noticed also the following observation made in a later decision of this Court in the case of Burmah Shell (Delhi Region): "In fixing the age of superannuation the most important factor that has to be taken into consideration is the trend in a particular area. That position is made 269 clear by this Court. There is no denying the fact that life expectation has greatly increased in recent years due to healthier living conditions, better food and improved medical facilities though we have still a long way to go in that regard. Under modern conditions, speaking generally, the efficiency of workmen is not impaired till about 60 years. The needs of a workman are likely to be greater between the age of 50 and 60 years, as during that period, he has to educate his children, marry his daughters, in addition to maintaining his family. If one looks at the word trend, it is obvious that the age of superannuation is gradually pushed up." The Tribunal commented upon the lack of evidence relating to the various factors indicated in the above passage in the present case and has arrived at its decision as follows: "The only material placed before me pertains to the wage scales in existence in the industries in the region and more so comparable industries. The wage scales of the Company and those of other comparable concerns do not show that the wage scales of the Company are much better. Similarly, it is apparent that the Company has fixed the age of retirement of the clerical staff in its Marketing Division, both in Bombay and other places 58 years. I do not find any valid reason why the concerned workmen should be denied a raise in the age of their retirement at least to the extent of 58 years. I have already observed that the concerned workmen have been granted benefits of retirement by way of provident fund and gratuity under the Settlement. It is also to be borne in mind that there are about 1095 workmen in the non clerical category. They may also raise a dispute about the revision of their retirement age. Here, neither party has placed on the record the extent of additional financial burden consequent upon the grant of the demand in terms it is made. To keep harmony amongst the workmen of the Company employed in its Marketing Division and Refinery, it is proper to raise the age of retirement of the concerned workmen to 58 years, and not to 60 years in terms of the demand. For the aforesaid reasons, the age of retirement of the clerical staff is fixed at 58 years. " 270 Unfortunately, very limited material is available on record for arriving at a decision in this case. Before the Tribunal comparative statements regarding the wage scales and other benefits such as gratuity and provident fund and age of retirement were produced by the Company and the first union and the unions relied upon the trend in the Bombay region to fix the age of retirement of employees at 60 years. In this Court Mr. M.K. Ramamurthi, Senior Counsel appearing for the appellants invited this Court 's attention to and heavily relied upon some decisions of this Court in which that trend has been noticed. The Tribunal also noticed the decision of this Court in the Burmah Shell (Delhi region 's) case (supra) in which also reference has been made to the trend as seen from the passage in that judgment extracted earlier. Mr. G.B. Pai, Senior Counsel appearing for the Company admitted before this Court as had been done even before the Tribunal that there is no pension scheme for the clerical employees of the refinery division of the Company with whom we are concerned in this case. He also admitted that there is a pension scheme in regard to clerical employees of the Company 's marketing division at Bombay. But he submitted that scheme is restricted to only employees who had joined service before the date of nationalisation of the oil companies and does not relate to those who joined service after that date. The fact that the pension scheme relating to the marketing division applies to only employees who had joined service in the Company before the date of nationalisation is not disputed by Mr. Ramamurthi. It is true that the Tribunal has not noticed the fact that there is such a pension scheme for some of the Company 's employees in the marketing division at Bombay. Mr. Pai drew this Court 's attention to comparative statements produced by the Company as exhibits 'A ' and 'B ' with the counter affidavit filed in the special leave petition in this Court. They are referred to in paras 15 and 17 of that counter affidavit. No objection was raised by Mr Ramamurthi to Mr. Pai drawing this Court 's attention to those comparative statements. One of those statements shows the salaries of junior and senior clerical employees in all the oil companies (corporations) in this country. It is seen from that statement that there are four oil companies in this country, namely, Hindustan Petroleum Corporation Limited.(Caltex), Indian Oil Corporation Limited, Hindustan Petroleum Corporation Limited and Bharat Petroleum Corporation Limited. The pay scales of junior clerical employees of the Hindustan Petroleum Corporation Limited are Rs. 890.50 Rs. 1498.50 in the marketing division and Rs. 995.25 Rs. 1348.60 in the refinery division. Those scales compare favourably with the pay scales of similar employees 271 in the Hindustan Petroleum Corporation Limited (Caltex) and Indian oil Corporation Limited. But the pay scales of junior grade clerical employees of the respondent company Bharat Petroleum Corporation Limited are better in the refinery division with which we are concerned in this appeal then those in the Hindustan Petroleum Corporation Limited, for the pay scales in the respondent Company are Rs. 924.23 Rs. 1597.17 in the marketing division as on 1.3.1980 and Rs. 1093.92 Rs. 1809.96 in the refinery division at Bombay as on 1.4.1980. In the comparative statement there is a note that the grade of Rs.1093.92 Rs. 1809.96 is the lowest grade in the clerical cadre as per the subsisting settlement and that individuals have, however, not yet been fitted that grade because of various disputes. There can be no doubt that once the individuals are fitted in that grade they will be entitled to payment according to that scale as from 1.4.1980. So far as senior grade clerical employees are concerned the scales of pay are Rs. 1012.50 Rs.1727.50 in the marketing division and Rs.1359.56 Rs. 2040.20 in the refinery division of the Hindustan petroleum Corporation Limited and Rs. 1215 Rs. 220 in the marketing division and Rs. 1212 .(for those who joined service after 8.8.1978 Rs. 2126 (for those who joined service prior to 8.8.1978). These scales of pay compare favourably with the scales of pay in the Indian oil Corporation Limited. But the sales of pay of the respondent company are much better as they are Rs. 1171.91 Rs. 1960.59 in the marketing division as on 1.3.1980 and Rs. 1352.30 Rs. 2510.46 in the refinery division at Bombay has on 1.4.1980. Thus it is seen that the pay scales of junior grade clerical employees and senior grade clerical employees of the Company in the refinery division at Bombay, namely, Rs. 1093.92 Rs. 1809.96 as on 1.3.1980 and Rs. 1352.30 Rs. 2510.46 as on 1.4.1980 compare favourably with the pay scales of junior grade clerical employees in the marketing division of the Company at Bombay, namely, Rs. 924.23 Rs. 1597.17 and Rs. 1171.91 Rs. 1960.59 as on 1.3.1980 respectively. Therefore, the Company 's contention before the Tribunal that higher pay scales were fixed for the clerical employees in the refinery division at Bombay in the settlement dated 31.10.1973 in view of their agreement to continue the age of retirement at 55 years is not without substance as stated by the Tribunal in its judgment. In this Court also Mr. Pai submitted that higher pay scales have been fixed for the clerical employees in the refinery division of the Company at Bombay taking into consideration that there is no pension scheme for them and their agreement to continue the age of retirement as 58 whereas the retirement age for the clerical employees of the marketing division at Bombay for 272 whom there is a pension scheme in regard to those who entered service prior to the date of nationalisation is 58. The learned counsel fairly conceded that it could not be stated with certainty that the difference in the pay scales of the clerical employees in the refinery division and marketing division at Bombay fully takes care of the absence of a pension scheme for the clerical employees of the refinery division. It was not contended by Mr. Ramamurthi that the workload of the clerical employees in the refinery division is greater than that of the clerical employees in the marketing division of the Company at Bombay. Therefore, in considering the absence of a pension scheme for the clerical employees of the Company in the refinery division one has to take note of the fact that the pay scales of those employees are more advantageous and compare favourably with the pay scales of clerical employees of the Company in the marketing division at Bombay. The trend strongly relied upon by Mr. Ramamurthi has no doubt to be taken into account for fixing the age of retirement of the employees. But according to the decision in Burmah shell (Delhi region) case (supra) referred to above, it is only one of the factors which have to be taken into account in fixing the age of retirement though in that decision it has been stated to be the most important factor, (Several other factors) are mentioned in this Court 's judgment in Guest Keen Williams Private Limited vs Sterling and others (supra) and they are the nature of work assigned to the employees, the wage structure of the employees, the retirement benefit and other amenities available to the employees, the nature of climate where the employees work and the age of superannuation fixed in comparable industries in the region. The employees in this case should have placed the other materials also before the Tribunal for justifying their claim for raising the age of retirement from 55 years to 60 years. They have not placed any of those factors before the Tribunal apart from relying upon the trend mentioned above. The trend must, undoubtedly, be in comparable industries. The employees in this case have not placed any material on record to show that there is any trend in the refinery division of any other oil company in the Bombay region to fix the age of retirement of clerical employees at 60 years. They have relied upon the trend generally and not in any comparable industry. There is no evidence to show that there is any other refinery in the Bombay region than that of the company. On the other hand, the Company has placed before this Court a comparative statement regarding the age of retirement of clerical employees in all the refineries in this country. That statement produced with 273 the counter affidavit filed in the Special Leave Petition shows that the age of retirement is 60 years only in the marketing division of the Indian oil Corporation Limited, that it is 58 years in the refinery division of that Corporation and that in all the other Corporations including the respondent Company after the age of retirement was raised to 58 years from 55 years by the Tribunal it is 58 years both in the marketing division and the refinery division. Thus, the trend in the refinery divisions of the Corporation throughout the country is to fix the age of retirement of the clerical employees at 58 years. It is not possible to accept the appellants ' contention that the age of retirement should have been raised by the Tribunal to 60 years on the basis solely of the "trend in the Bombay region". There is nothing in the award of the Tribunal to show that the employees contended before it that the "trend in the Bombay region" heavily relied upon by them, could be general in nature and not in comparable industries in the region. ' No such argument was advanced even in this Court by Mr. Ramamurthi, on behalf of the appellants. Consequently the Company did not have any opportunity of meeting any such contention that the trend in the region need not be in comparable industries (not necessarily similar industries) but may be general and is yet binding on the Company. It is significant to note that the clerical employees in the marketing division of the Company at Bombay have till now not raised any demand for raising their age of retirement to 60 years from 58 years. Therefore, on the question of trend also it is seen that the employees concerned have not placed any material on record to hold that in their case the trend should be taken as being towards fixing the age of retirement at 60 years. The Tribunal has taken all factors into consideration including the absence of a pension scheme for the employees in question except the fact that there is a pension scheme for the clerical employees in the marketing division of the Company at Bombay who had joined service prior to the date of nationalisation in raising the age of retirement of the Company 's clerical employees in the refinery division at Bombay to 58 years from 55 years at par with the age of retirement of the clerical employees in the Company 's marketing division at Bombay. Even under the Tribunal 's award challenged in this appeal the employees concerned are better placed than their counter parts in the marketing division who have joined service after the date of nationalisation of oil companies in regard to wage scales. There is no material on record to show the quantum of disadvantage to which the employees in question are subjected by the absence of a pension scheme compared with the section of clerical employees of the Company 's marketing division at Bombay 274 who have the benefit of a pension scheme in addition to gratuity and provident fund benefits to which alone the employees concerned in this appeal are entitled as retirement benefits. In these circumstances, there is no satisfactory reason for interfering with the Tribunal 's award raising the age of retirement of the clerical employees of the Company 's refinery division at Bombay from 55 years to 58 years at par with the age of retirement of the clerical employees of the Company 's marketing division at Bombay and declining to raise it to 60 years as demanded by the employees. The appeal accordingly fails and is dismissed but without costs. H.S.K. Appeal allowed.

The Indian Statistical Institute was registered under the Societies Registration Act, and governed by the Indian Statistical Institute Act, 1959. Its control completely vested in the Union of India, respondent No. 5 in the appeal. The Institute had been declared as an 'Institute of National Importance. The chief executive body of the Institute was the Council, respondent No. 2 which consisted of 25 members of whom three were representatives of the Central Government. The Council was headed by a chairman who was elected. In order to discharge the administrative and academic responsibility of the Institute a Director was appointed by the Council. Respondent No. 4 was appointed as a Director. The petitioner in his Writ Petition challenged the appointment of respondent No. 4 on the ground that he was a person] of much higher academic and other accomplishments and far superior to the said respondent. 396 In the Writ Petition it was contended: (i) Bye law 2 expressly requires that the vacancy of Directorship should be suitably publicised but in the present case no publicity whatsoever was given to the vacancy of Directorship. Publicity was necessary if the appointment was to be fair and free from partiality and that many were not aware of the vacancy of the post of Director till the actual order of appointment was made. (ii) He was eminently suitable for being appointed to the post in view of the various contributions in the field of his work and the active part played by him in resolving the administrative problems of the Institute, and (iii) no bio data or information was placed before the Council which under the bye laws was the appointing authority to enable the members to gauge the comparative suitability of various candidates. The petition was resisted on behalf of respondent Nos. 1 and 2 by contending: (i) the petition is not maintainable under Article 32 of the Constitution as respondents Nos. 1 and 2 are not 'state ' or 'other authority ' within the meaning of article 12 of the Constitution. (ii) Even assuming that there has been a violation of bye law 2 no writ can lie to correct the same as the alleged bye law has no statutory basis inasmuch as the Institute has been declared as an Institution of National Importance ', the bye laws not being statutory the respondents are under no obligation to observe the procedure Laid down therein, and (iii) the petitioner was duly and properly considered for selection to the post. Allowing the writ petition, ^ HELD: (i) The order of appointment dated August 3, 1979 of Respondent No. 4 as the Director of Respondent No. 1 is quashed and set aside. Before Respondent No. 1 proceeds to select a new Director, it will comply will the requirement of bye law 2 by giving suitable publicity to the vacancy in the office or Director. [413 F] (ii) There can be no doubt that respondent No. 2 is an 'authority ' within the meaning of Article 12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable. [409 G] In the instant case, the money required for funding the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction. The Society has to comply with all directions as may be issued by the Central Government. The control of the Central Government is deep and pervasive and, therefore, it is an instrumentality of the Central Government and as such is an 'authority ' within the meaning of Article 12 of the Constitution. It is, therefore, subject to the constitutional obligations under Articles 14 and 16 of the Constitution. [408 C D] Ajay Hasia etc. vs Khalid Mujib Sehravardi & Ors. etc. ; referred to 397 2. (i) It is obligatory on the part of respondent No. 1 to follow the bye laws for the bye laws have been framed for the conduct of its affairs to avoid arbitrariness. [410 G] (ii) Compliance with bye law 2 seems to be necessary in the name of fair play. If the vacancy in the post of Director had been publicised as contemplated by bye law 2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available reason and that would have removed all doubt of arbitrariness from the mind of those eligible for the post. [411 B] Ramana Dayaram Shetty vs International Airport Authority of India ; ; Viteralli vs Seton 3 Law Fd. Second Series 1012; A.S. Ahluwalia vs Punjab ; ; Sukhdev vs Bhagatram ; referred to. (iii) In the case of appointment of a Director, bye law 2 clearly provides for publicity, the object being that all concerned may know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates may be brought before the selection committee for its consideration. [412 H 413 A] (iv) It is not suggested that appointments to every post must be made only after advertising or publicising the vacancy. That would not be right, for there are quite a few posts at the top level as for example Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Court, which cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained. [411 C D] (v) It is not for the Court to determine who is the superior of the two candidates and who should be selected. It is for the authorities concerned to select from amongst the available candidates. The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion. But in the absence of publicity as contemplated by bye law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual. [412 C E] 3. It is always desirable that in public bodies the minutes of the proceedings regarding selection should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted will the task of selection for appointment. [412 A] In the instant case, there is nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the names of the petitioner had been considered but respondent No. 4 was found superior. [411 H] 398

Appeals Nos. 2464 and 2465 of 1966. Appeal from the judgment and order dated April 8, 1964 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 75 D of 1962. M.C. Chagla and Lily Thomas, for the appellants (in C.A. No. 2464 of 1966) and the respondents (in C.A. Nos. 2465 of 1966). A.K. Sen and 1. N. Shroff, for the respondents (in C.A. E No. 2464 of 1966) and the appellants (in C.A. No. 2465 of 1966). The Judgment of the Court was delivered by Bachawat, J. One Mehtab Singh, the landlord, is the owner of the premises No. 279, situate in Dariba Kalan, Delhi. His son Muni Subrat Dass resides on the first floor while the ground F floor is in the occupation of the tenants, Bahadur Singh and Daryao Singh where they set up a workshop and installed machinery for manufacturing purposes. According to Muni Subrat the workshop was a nuisance and caused him great annoyance. He made a number of complaints to the Municipal Committee for stoppage of the nuisance. On June 10, 1954, Muni Subrat G and the tenants agreed in writing to refer the disputes between them to the arbitration of two named arbitrators. The landlord was not a party to the agreement. The arbitrators made their award on July 14, 1954. The award directed that (i) Muni Subrat would withdraw the applications pending before. The Municipal Committee; (ii) the tenants would be at liberty to run the workshop during the day time upto December 31, 1957; (iii) on January 1, 1958, the tenants would remove the machinery; (iv) on the same date they would give vacant possession of the ground floor to the landlord and (v) the tenants would pay rent 434 to landlord for the period of their occupation. .The award was signed by the arbitrators and the parties to the reference and was attested by the landlord. It was filed in COurt under section 14 of the . On August 26, 1954, the tenants and Muni Subrat stated in Court that they had no objections against the award. On the same date the Court pronounced judgment according to the award and a decree followed accordingly. On August 23, 1958 Muni Subrat and the landlord jointly applied for execution of the decree `for delivery of possession of the premises. In anticipation of the application for execution of the decree, on January 9, 1958 the tenants filed an application under sec. 47 of the Code of Civil Procedure raising the following objections to the execution of the decree as to the delivery of possession of the premises to the landlord: (i) the award was beyond the scope of the reference and was invalid and the decree based on the invalid award was void; (ii) the decree was passed in contravention of the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) and was void; and (iii) the landlord could not execute the decree. The Subordinate Judge, First Class, Delhi, dismissed the objection. He held that (i) that the objection that the award was without jurisdiction could not be raised under sec. 47; (ii) the decree was not in contravention of the Rent Act; and (iii) the landlord was entitled to execute the decree. On appeal,the Additional Senior Sub Judge, Delhi, held that (i) the question as to the validity of the award could not be agitated in the execution proceedings; (ii) the decree for eviction was passed in contravention .of the Rent Act and was void; (iii) the appeal against the order allowing the landlord to execute the decree was incompetent and (iv) Muni Subrat was entitled to execute the decree for removal of the machinery but he could not execute the decree for eviction. In the result, he dismissed the appeal in part so far 'as it was directed against the landlord, allowed the appeal in part against Muni Subrat and declared that he could get the machinery removed but he could not claim eviction. The tenants and the decree holders filed two separate appeals in the Punjab High Court at Delhi. Gurdev Singh 1. held that (i) the first appeal filed against the order in favour of the landlord was competent; (ii) the decree for eviction did not contravene the provisions of the Rent Act and (iii) the landlord was entitled. to execute the decree for eviction. In the result, he accepted the decree holder 's appeal and dismissed the tenant 's appeal. The tenants filed an appeal under clause 10 of the Letters Patent. A Divisional Bench of the High Court held that (1) the objection to the validity of the award could not be entertained in the execution proceedings; (2) the decree directing delivery of possession of the premises to the landlord was passed in contravention of the Rent Act; (3)neither the landlord nor Muni Subrat could 435 enforce that part of the decree; (4) the decree directing removal of the machinery was 'separable and was void and Muni Subrat was entitled to execute it. In the result, the DiviSional Bench allowed the appeal and restored the order of the Additional Senior Sub Judge, Delhi. In passing this order the Bench overlooked that the Senior Sub Judge had dismissed the appeal against the landlord as incompetent. Having regard to the fact that the appeal against the landlord was competent, the Bench should have also set aside the order favouring the landlord. The present appeals have been filed by the tenants as also by the landlord and Muni Subrat after obtaining certificates from the High Court. The following points arise for determination in these appeals, (1) Can the objection as to the ' validity of the award be raised after a decree is passed ' on the award, and can the decree be pronounced to be a nullity on the ground that it was based on an invalid award; (2) Is the decree directing the tenants to deliver possession of the premises to the landlord a nullity on the ground that it was passed in contravention of the Rent Act; (3) Is this portion of the decree enforceable either by the landlord or by Muni Subrat; and (4) Is the decree so far as it directs removal of the machinery valid and enforceable by Muni Subrat. The award was filed in Court under section 14 of the and on notice to the tenants and in their presence a decree, was passed according to the award under section 17. It is not Open to the tenants now to take the objection that the award was in excess of the 'authority of the arbitrators or was otherwise invalid. Having regard to the scheme of sections 14 'to 17 and 31 to 33 all ' questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court. An award which is invalid on any ground can be set aside under section 30. After a decree is passed on the award it is not ' open to the parties to the reference to raise any ' objection as to ' the validity ' of the award. As between them the decree conclusively determines that the award is valid. Nor can the decree be pronounced to be a nullity on the ground that ' the award was invalid. A decree passed on an invalid award in arbitrations in suits under the second schedule to the Code of Civil ' Procedure, 1908, stood on the same footing, see Rabindra Deb Manna vs Jogendra Deb Manna(1) where Rankin, '1. 'observed: "An award made out of time, Or otherwise 'invalid, is no longer a nullity it is 'liable to be set aside by the Court, but, if not set aside, a decree made for its enforcement is not without jurisdiction, Shib Kristo Daw vs Satish Chandra Dutt The next question is whether the decree directing the tenant to deriver possession of the premises to the landlord was. passed A.I.R. 1923 Cal. 410, 413. 436 in contravention of section 13 (1) of the Delhi and Ajme Rent Control Act, 1952. That sub section provided that: "Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated): Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied. " Then followed a catalogue of grounds on which the decree for recovery of possession could be passed. The other sub sections to section 13 showed that a decree or order could be passed on one of those grounds in a suit or proceeding instituted by a landlord against a tenant. Section 13 (1) prohibited the Court from passing a decree or order for recovery of possession of any premises in favour of a landlord against a tenant except in such a suit or proceeding and unless the Court was satisfied that a ground of eviction existed. Now the decree in the present case is on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant. The Court passed the decree according to an award under section 17 of the in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed. On the plain wording of section 13 (1 ) the Court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution. The contusion that a decree passed in contravention of section 13 (1) is a nullity is supported by the decision in Peachey Property Corpn. vs Robinson(1). In that case the landlords issued a writ to recover possession of a flat let to tenants who resided there for non payment of rent. No appearance was entered and judgment was signed in default of appearance. On an application for leave to issue a writ for possession, the Court held that the judgment was a nullity as it was given without any determination that it was reasonable to do so in contravention of section 3 (1) of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. As the decree was a nullity the Court refused to issue a writ for possession. Winn, L.J. said : "Accordingly,the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, section 3(1) was made to apply to these premises and that sub section provided: 'No Order or judgment for the recovery. of possession of any dwelling house to which the principal Acts apply or for the ejection of a tenant therefrom shall be (1) , 983. 437 made or given unless the Court considers it reasonable to make such an order or give such a judgment. and. " One or other of two additional conditions is satisfied. It is perfectly plain from what I have said that before the judgment in default of appearance was entered no court had determined whether it was reasonable to make such an order or give such a judgment. In my view, therefore, by express force of that section the judgment in default of appearance here was a nullity. It was, according to its terms, a judgment for recovery of possession of these premises, and that is something which the section prohibits unless there has been a prior determination by the court that it was reasonable to give such a judgment." As the decree for the delivery of possession of the premises to the landlord is a nullity it cannot be enforced or executed either by the landlord or by the landlord 's son Muni Subrat. The decree in so far as it directs the removal of the machinery from the premises is clearly valid and separable from the rest of the decree and may be executed by Muni Subrat. In the result, it is declared that (a) the objections as to the validity of the award cannot be entertained in the execution proceedings; (b) the decree in so far, as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed either by Muni Subrat or by Mehtab Singh and (c) the decree in so far as it directs removal of the machinery is valid and may be executed by Muni Subrat. Subrat to the declarations mentioned above the appeals are dismissed. There will be no order as to the costs in this Court. Y.P. Appeals dismissed.

After the reply of the respondent a railway employee in respect of certain charges p.referred against him was received, a departmental enquiry was held. The Enquiring Officer found all the charges proved. A show cause notice, was then served stating that it had been tentatively decided by the Chief Commercial Superintendent that the respondent should be dismissed from service. This notice was served after the ' Chief Commercial Superintendent had recorded an order stating that he had seen the enquiry proceedings, that the procedure had been correctly followed, and that he agreed with the findings of the Enquiring Officer. The respondent submitted his explanation; thereafter his dismissal was ordered. The respondent filed a writ petition in the High Court. The single Judge allowed the petition holding that the Chief Commercial Superintendent was bound to> pass a detailed order expressing his views about each of the charges and that a general agreement with the findings of the Enquiry Officer did not satisfy the requirements of r. 1713 of the Conduct and Disciplinary Rules. This decision was affirmed by the Division Bench. In 'appeal, this COurt, HELD: The: appeal must be allowed. (i) Rule 1713 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. All that the Rule requires is that the record of the enquiry should be considered 'and disciplinary authority should proceed ' to give its findings on each charges. This does not and cannot mean that it is obligatory on the disciplinary authority to discuss the evidence and the facts and circumstances established at the departmental enquiry in detail and write as if it were an order or a judgment of a judicial tribunal. The rule certainly requires the disciplinary authority to give consideration to the record of the proceedings which was done by the Chief Commercial Superintendent. When he agreed with, the findings of the Enquiry Officer that all the charges mentioned in the charge sheet had been established it meant that he was affirming the findings on each charge and that would ' certainly fulfil the requirement of the Rule. [345 H 346 D] (ii) There was no force in the respondent 's contention that the disciplinary authority was not entitled to have finally made up its mind before the explanation to the second show cause notice had been received by it and at a stage prior to the issuance of the notice. The procedure which is. to be followed under article 311(2) of the Constitution of 'affording a reasonable opportunity includes the. giving of two notices, One at the enquiry stage and the other when the competent authority as a result of the enquiry tentatively determines to inflict a particular punishment. 344 It is quite obvious that unless the disciplinary or the competent 'authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination. [346 E] Khem Chand vs Union of India & Ors., ; , followed.

Appeal No. 1611 of 1968. Appeal from the judgment and order dated December 5, 1966 of the Allahabad High Court in Special Appeal No. 760 of 1966 and Petition for Special Leave to appeal (civil) No; 676 of 1972, 912 V. M. Tarkunde, J. P. Goyal; and Sobhag Mal Jain, for the appellant. E. C. Agarwala and A. T. M. Sampat, for respondent No. 2. The Judgment of the Court was delivered by Dua,J. The following dispute between M/s. Bijli Cotton Mills (P) Ltd., and their workmen was referred to the Industrial Tribunal 11, U.P. for adjudication : "Should the employers be required to pay wages for the festival holidays allowed to their workmen in a year ? If so, from which date and with what other details ? According to the workmen the employers had been giving 17 festival holidays to their workmen in a year and though those holidays should have been paid ones the employers were not making any payment. The dispute was originally espoused at the instance of Hathras Mazdoor Panchayat but later three other unions namely Sooti Mill Mazdoor Panchayat, Congress Mazdoor Sangh and Suti Mill Karmachari Sangh were also accorded right of representation on their applications. The employer mills contested the claim on various grounds. The plea on the merits in substance was to the effect that neither in law nor in practice was there any provision for festival holidays with wages. The Mill, it was averred, was already paying was for three holidays allowed to the workmen under the U.P. Industrial Establishments (National Holidays) Act (U.P. Act XVIII of 1961) and in the entire Agra region in which this Mill is situated to textile mill pays wages for festival holidays. It was added that the Mill was an uneconomic unit and was not in a position to bear any extra burden. The Congress Mazdoor Sangh, the Sooti Mill Karmachari Sangh and the Hathras Mazdoor Panchayat filed separate written statements on behalf of the workmen and pleaded that the grant of holidays without wages was illegal and against social Justice. The employer Mill filed rejoinder statement to the written statements of all the Unions, pleading that the holidays mentioned by the Unions were not allowed to the workmen at the employer ', initiative but were _granted because the workmen demanded the same and these holidays were substituted by other days in lieu of holidays, and as they were paid for the days on which they worked on account of these holidays there was no Toss of wages caused to the workmen. On july 15, 1965 the parties made their statements under,r. 12 of the U.P. Industrial Disputes Rules, 1957, which provides 913 for procedure at first. sittings of die Tribunal requiring the parties to state their respective cases. Shri M. P. Jaiswal, on behalf of the employers admitted that the company gives 17 festival holidays to all its employees, 15 of which are; those mentioned in the written statement of the Congress Mazdoor Sangh and two others being Sankranti and Baldev Chat observed on Bhadon Sukla Chat. All these holidays were stated by him to be paid holidays in the sense that the workers were allowed to work on their unpaid rest days in substitution of the said festival holidays. The unpaid rest days were the. same as those provided and observed under section 52 of the Factories Act as unpaid holidays. It was admitted that the monthly raters were paid for 365 days in a year whereas piece raters were paid according to the quantum of work done by them on working days in a month. The national holidays given by the employer are not substituted on any rest day and if any national holiday falls on a rest day the employer pays single day 's wages if no work is done. If a holiday is substituted on rest day then only one day 's wages are paid. After this statement four representatives of the contesting unions stated that whenever the management takes work, from the workers on a rest day only one day 's wages are paid and it was emphatically denied that holidays were substituted on a rest day. Monthly raters, according to these representatives, get their wages for all 365 days. After these statements the Presiding Officer of the Tribunal put the following question to Shri Jaiswal : Q : Whether the festival holidays observed in the Mill are paid or unpaid ? A : They are paid holidays and payment is made by substitution as stated earlier. Thereafter it appears that the workmen did not lead any evidence but Shri M. P. Jaiswal, Secretary of the Mills appeared as a witness on behalf of the employer. He filed two charts showing the festival holidays observed in ,he Mills in the year 1964 and upto July, 1965. He proved these charts stating that they bad been prepared from the Mills ' Muster Rolls and that they were true copies correctly prepared from the records of the Mills. These two charts were marked as exhibit E 1 and exhibit E 2. )When the witness tried to depose about the holidays in the Kanpur Textile Mills, the question was disallowed. While cross examined by Shri B. D. Seth, on behalf of the workmen, Mr. Jaiswal stated that in Ex E 1 only two holidays for Holi were substituted, one on February 23, 1964 and the other on March 1, 1964, the remaining two not being substituted. In the case of Diwali also. two holidays were 914 substituted leaving unsubstituted the remaining two holidays. On being" cross examined by Shri O.P. Gautam also on behalf of the work men the witness stated that in 1965 as well only two holidays on account of Holi were substituted, the remaining two being un substituted. In the preceding years also the position was stated to be the same in regard to Holi holidays. The following :two questions and answers may also be re produced Q : When you take work on Sunday which is a weekly holiday on which date you give the festival holiday ? A : As such we do not give the weekly rest day on the day on which the festival falls within the limits allowed under the Factories Act. 0 : Is there any limit for festival holidays in Factories Act ? A : There is no such limit nor any such direction in the Factories Act. For substitution there is a restriction in Sections 51 and 52 of the Factories Act. Exhibits E 1 and E 2 show festival holiday for the year 1964 and 1965 and these charts corroborate the answers elicited from Shri Jaiswal that for Holi and Diwali only two days on which substitution was allowed were paid for, the remaining two holidays being unpaid. It may be pointed out that ;the Tribunal, after the statements of the parties under r. 12, framed the following issue : "Whether the festival holidays are given to the work . men in the form of substituted holidays on weekly rest days ? If so are the workmen other than the monthly raters entitled to only one day 's wages or two days ' wages i.e., one day 's wages for the work done on the weekly rest day and one day 's wages for the substituted holiday ?" It appears that the language of this issue was not objected to by either party and this appears to be the real crux of the controversy which emerged after the statements of the parties requiring decision by the Tribunal. It was not disputed before the Tribunal that the employers had been giving 17 festival holidays to all the workmen besides three national holidays. The plea taken by the employers in their pleadings that the holidays are not paid holidays was in the opinion of the Tribunal given the go by in the 915 statement of Shri Jaiswal recorded under r 12 on. July 15, 1965. The Tribunal then dealt with that statement and observed that after that statement it was for the, employers to show how payment for the festival holidays Was made by them. To reproduce the words of the award : "In the written statement without stating whether the festival holidays were paid or unpaid they pleaded that neither in law nor in practice there was any provision for festival holidays with wages and that in the entire Agra Region no textile mill was paying wages for the festival holidays. Originally it appeared that the employers wanted to set up that the festival holidays were unpaid but at the time of the statement under rule 12, Shri Jaiswal took a contrary position and stated that all the festival holidays were paid holidays and the payment was made in the sense that they were substituted on rest days. I have already shown how this statement is in correct and no impartial mind will be wrong in drawing a legitimate inference that the purpose of the employers in setting up inconsistent pleas or in giving in consistent statements was only to conceal the truth or it may be that the purpose was to confuse the issue. " A little lower down, after observing that Shri Jaiswal was not the kind of witness who would give straight answers to straight questions and that the witness had to be warned for this attitude observed : "From the employers own pleadings the statement of Shri Jaiswal recorded under rule 12 and his deposition, it is evident that 17 festival holidays besides three National Holidays are all paid holidays but the employers had been wrongfully depriving their workmen of their dues in this behalf." The Tribunal, while dealing with the case of monthly raters observed that they were not entitled to the relief because they were paid for all the 365 days in a year. The case of daily raters or piece raters being different (they were paid according to the number of days on which they worked or the quantum of work thev turned out) they were held entitled to festival holidays with wages. Daily raters were accordingly held entitled to payment on the basis of their daily wage whereas piece raters were held entitled to get the average earning to be calculated on the basis of the average of the last one month immediately preceding the holiday. The relief granted. by the award was stated thus "My award, therefore is that the employers shall pay wages to their daily rated and piece rated Workmen 946 for 17: festival holidays besides, three National Holidays, i.e., to each or their workmen who: are daily raters and piece raters with effect, from, the 1st January, 1965. For the holidays which have accrued, from the 1st January 1965 fill the date of enforcement of the award and ' which are. given in the list exhibit E 2 the employers shall pay the arrears and in future all the. festival ' holidays and National Holidays shall be paid for. If the employers substitute festival holidays on a rest day, for that day they shall. pay double the wages. " The appellant, feeling aggrieved by this award, presented a writ petition in the Allahabad High Court under article 226 of the Constitution complaining that the Industrial Tribunal had misread ' and misinterpreted the statement of the parties recorded under r. 12 particularly the statement of Shri Jaiswal. It was also averred that the question of festival holidays depends on so many other factors particularly custom and usage and the Industrial Tribunal had committed a serious error in shutting out evidence in regard to the practice prevalent at Kanpur in respect of the custom and usage regarding festival holidays in the textile industry there. The main textile industry in the State of Uttar Pradesh according to the appellant 's averment is concentrated at Kanpur. The alleged admission by Shri Jaiswal contrary to the appellant 's pleading and contrary to the case set up by both parties could: not be conclusive and the Industrial Tribunal illegally based its finding on such alleged admission. The High Court dismissed the writ petition holding that it was open to the Industrial Tribunal to allow or disallow any question which it considered relevant or irrelevant and the High Court, in exercising its jurisdiction under article 226 of the Constitution, could not go into the correctness or otherwise of the order disallowing a particular question to be put to a witness such function being vested only in an appellate court. The grounds that the Industrial Tribunal, had misread the statement of Shri Jaiswal in holding that, he had made an admission that 17 paid festival holidays were being allowed to the workmen was also considered to be impermissible in the High Court in writ jurisdiction because that pertains to the appreciation of evidence. The statement made by Shri Jaiswal under r. 12, according to the High: Court, was capable of the interpretation that it contained an admission that the employers were giving 17 paid festival holidays to their workmen. Not being satisfied that three impugned award suffered from any error of jurisdiction or from any manifest, error of law the writ petition was dismissed. Special appeal form the judgment of the learned single Judge to a Bench of two Judges was summarilly dismissed, on, December 917 5, 1966, However, leave to appeal to this Court was granted by the Divisional Bench on February, 16,1968, the petitioner having been held, to. quote the words of the High Court "entitled to a certificate. either under cl. (a) or, (b), of article 13 3 ( 1) of the Constitution". The High Court also, certified "that the value of the subject matter of dispute before the High Court and in appeal is not less than Rs. 20,000/ ; alternatively, it is certified that the judgment of this Court involves directly or indirectly a claim res pecting wages amounting to more than Rs. 20,000/ . ", Before, us the respondents raised, an objection that the certificate granted ' by the High Court was incompetent and, therefore, should be cancelled. Out attention was drawn to article 133(1),(a) and (b) of the Constitution and it was pointed out that the High Court missed that part of sub article 133(1) where it is stated that " where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub clause (c), if the High Court further certifies that the appeal involves some substantial question of law. " Merely because the value of the subject matter in dispute is more than Rs. 20,000/ , the respondent contended, it does not by itself justify the grant of a certificate under cl. (a) or cl. In the application for the requisite certificate the prayer included cl. (c) of article 133(1) as well, but apparently at the time of arguments the submission was confined to cls. (a) and (b) alone. The appellant, when faced with this difficulty, submitted that this Court should, on its oral request, grant special leave to appeal after condoning delay and it also filed a formal written application for special leave to appeal accompanied with an application for condonation of delay. For adopting such a course the appellant relied on an unreported decision of this Court in The District Board (afterwards Zila Parishad), Allahabad vs Syed Tahir Hussain & ors.(1) There the appellant had come to this Court on a certificate purporting to have been granted under article 133 of the Constitution. At the time of hearing it was objected on behalf of one of the respondents there that the certificate could only be granted if there was a substantial question of law and since the certificate did not disclose on its face the existence of any such question, the appeal was incompetent. This Court, in view of its earlier decision in Shri Durga Prasad & anr. vs The Banaras Bank Ltd.(2), sustained this objection and in the absence of a certificate of the High Court showing the existence of some substantial question of law held the appeal to be incompetent. The appellant in, that case when faced with a similar situation, had made an oral request praying for special leave, undertaking to. file a written (1) C.A. No; 578 of 1963 decided on July 23,1965. (2) [1964] 1 S.C.R. 475. 918 petition for that purpose supported by an affidavit and accompanied by an application for condonation of delay. This Court considered the case to be fit and proper for granting special leave which granted on oral prayer but the appellant there Ws directed to file special leave petition in this Court within a week. The appellant in the present case also filed during the course of hearing special leave petition No. 676 of 1972 duly supported by an affidavit and Civil Miscellaneous Petition No. 1319 of 1972 with a supporting affidavit praying for (i) condonation of delay, (ii) treating court fee paid on C.A. No. 1611 of 1968 as court fee on special leave to appeal and (iii) the security deposit. in the earlier appeal being treated as security in the special leave appeal. We heard all the matters together. We consider the case to be covered by the precedent cited and accordingly held the certificate granted by the High Court to be incompetent and, therefore, liable to be cancelled. With the cancellation of the certificate C.A. No. 1611 of 1968 must be dismissed; but in the circumstances there would be no order as to costs. With regard to the prayer for granting special leave to appeal there can be no dispute that this Court is fully competent to entertain this prayer and if the cause of justice so demands, to grant the same and consider the special leave to, appeal on the merits. Article 136 is couched in very wide terms and it vests this Court with discretionary power for setting right grave injustice in fit cases. In Shri Durga Prasad 's case (supra), this Court, having regard to all the circumstances, did not consider that to be a fit case for granting special leave to appeal whereas in the later case of the District Board (afterwards Zila Parishad) Allahabad (supra), it may be recalled, this Court granted special leave to appeal on oral request, directing, that a formal special leave application be filed within a week. After considering all the circumstances we consider the present case to be fit for granting special leave to appeal and for condoning the delay. We order accordingly. The appellant, however, must pay full court fee payable within two weeks but the security already deposited in C.A. No. 1611 of 1968 may be treated as security in the special leave appeal. The result, therefore, is that now we have the fresh appeal by special leave before us for decision. The appellant 's learned counsel drew our attention to the statements of the respective cases of the parties before the Industrial Tribunal and also to the statement of Shri Jaiswal under r. 12. In our view the statement of Shri Jaiswal had, as a matter of law, to be read as a whole and also in the back ground and along with the pleadings as disclosed in the respective statements of cases of the parties in order to understand whether Shri Jaiswal 's statement 919 amounted to, a clear and conscious admission eliminating a crucial, part of the controversial issue. Reading them as ' a whole we do not consider it possible to hold that the appellant had admitted ,that the 17 festival holidays were being given by. them as paid ' holidays dispensing with the enquiry into the question referred for adjudication to the industrial Tribunal. It may in this connection be pointed out that the real purposes and object of r. 12 is only to pinpoint the precise. controversy by requiring the, parties to state their respective cases at the very first sitting of the Tribunal. This statement is not like the testimony of a witness, part Of which can be accepted and thereat rejected. 11 was only in the nature of a supplementary pleading designed mainly to remove vagueness and to clear ambiguities or indefiniteness in the pleadings. This statement had, therefore, to be read and considered as a whole. If it was considered unsatisfactory in some respects this factor could be taken into account in appreciating the pleadings and evidence led in the case while coming to the final decision but it could not debar the appellant from leading evidence on the controversial issue as if such issue did not arise. It is noteworthy that even the workmen did not plead that the festival holidays were (treated as paid holidays but no payment was as. a matter of fact being made. The holidays were of course allowed to the workmen but the written statement on behalf of the appellant unequivocally denied that there was any provision in law or practice for allowing festival holidays with wages and it also denied that in the Agra region where the appellant 's mill is situated any textile mill was paying wages for festival holidays. The appellant Mill it was emphasised could not be treated on a different footing. It was further pointed out that the appellant Mill was a highly uneconomic mill an, , was not in a position to take any extra burden. The statement made by Shri Jaiswal under r. 12 could on no reasonable hypothesis be considered to have replaced this unequivocal and clear plea. It is true that Shri Jaiswal tried to be somewhat clever by stating that the festival holidays were paid in the sense that the workers were allowed to work on unpaid rest days in substitution of the said festival holidays. But this statement clearly explains in unambiguous terms the sense in which Shri Jaiswal meant to say that the festival holidays were paid. The facts contained in the explanation lead to the only conclusion that festival holidays are not paid as 'the National Holidays are. This statement read with the detailed explanation which constitutes its real core could not logically serve as a ground for ignoring the unequivocal denial in the written statement particularly when even the workmen did not set up this case. The Industrial Tribunal had, in our opinion, erroneously 92O ignored the real plea and had on the basis of this manifest blatant error, which is clear on the face of the record, disallowed the evidence on the question of the practice and custom. in the textile 'industry in Kanpur. In Shri Jaiswal 's statement we find a clear distinction drawn that three National Holidays were paid holidays and the other festival holidays were such for which the workers were allowed to work on substituted rest days. It was also clearly mentioned in that statement that if a holiday is substituted on a rest day then the workmen gets only one day 's wages. This important part of the statement was virtually ignored by the Tribunal. The facts being clearly stated, in our view, the Industrial Tribunal was wrong in law in holding that the appellant 's written plea was modified by reason of the statement under r. 12 or that there was a clear admission superseding the earlier plea. The learned Single Judge of the High Court, in our opinion, also missed the real point; and if the real plea was ignored and it was erroneously held that Shri Jaiswal 's statement under r. 12 constituted an admission overriding the earlier plea and as a result evidence on that plea was excluded, then it was an eminently fit case for interference under article 226 of the Constitution, the error being gross and palpable which was manifest on the face of the record and the same having resulted in failure of justice by excluding evidence on the mos vital point. The Division Bench on special appeal from the judgment of the learned single Judge fell into the same error in summarily dismissing the appeal in limine without even recording a speaking order on the crucial point of substance arising in the case which went to the root of the matter. The question of festival holidays requires consideration from several aspects. Employers and workers have always differed in their suggestions about the level at which uniformity in the number of holidays should generally be achieved. In the Report of ,the National Commission on Labour prepared in August, 1969 we find at p. 105 that the workers ' organisaitions generally favour a minimum of 7 to 12 paid holidays in a year without mainly any differentiation as between different categories of employees. Enployers, on the other hand, feel that the number of paid holidays enjoyed by workers in India is already on the high side, and, 'therefore, uniformity should be achieved at a much lower level. The opinion of the Commission contained, in its Report supported the view of its Study Group on Labour Legislation which recomended three paid National Holidays viz. 26th January (Republic Day, 15th August (Independence Day) and 2nd October (Mahatma Gandhi 's Birth Day) and five paid festival holidays as may be fixed by the appropriate Government in consultation with the representatives, of employers and employees. The Report also suggests that there is a trend towards industry wise uniformity in 921 the matter of holidays, as in the case of jute and coal. Incidentally it may be mentioned that in U.P., the U.P. Industrial Establishments (National Holidays) Act No. XVIII of 1961 and rules made under section 9 thereof provide for paid National Holidays but that Act does not deal with festival holidays. In the case before us, according to the appellant, the 17 festival holidays as directed by the award would impose on the appellant industry an additional burden to the extent of about Rs. 1,49,600 as was stated in the order of the Allahabad High Court while granting leave. Custom, practice and uniformity in the industry without prejudicially affecting efficiency and increased production are some of the relevant factors which have to be taken into account in determining the number of paid festival holidays per year. The question affects national economy and the present instance may well be cited in future in deciding similar questions in other allied concerns in the region. The effect of such instances, therefore, does not remain confined only to the establishment concerned but has its impact on other concerns as well. This aspect has been completely ignored by the Industrial Tribunal which has proceeded solely on the basis of the statement of Shri Jaiswal as interpreted by it. This statement being the sole basis of the Tribunal 's conclusion if it is not possible to read in this statement any admission having the effect of giving up the only crucial plea that the workmen have no right to 17 paid holidays than this is clearly a misreading of that statement and the Tribunal 's order must be held to be tailed by a manifest error of law on the face of the record which has resulte in grave failure of justice as evidence on the only material point in issue was illegally shut out. In our view, the High Court also fell into the same error and did not apply its mind to the real point which arose for decision in the case. We accordingly allow this appeal, set aside the orders of the High Court and of the Industrial Tribunal and remit the case back to the Tribunal for a fresh decision on the merits after permitting the parties to lead relevant evidence in accordance with law and in the light of the observations made above. As the whole trouble arose because of the unsatisfactory nature of the statement made by Shri Jaiswal, who was also found by the Tribunal as a person who was not inclined to give straight answers to straight questions, it is only just and proper that the appellant should pay the respondents ' costs both in this Court and in the High Court. The court fee, as already directed, must be paid by the appellant within two weeks.

From a panel of names recommended by a Selection Committee constituted under section 13(2) of the University of Saugar Act, 1946 the then Chancellor of the University appointed the appellant as Vice Chancellor. Under Ordinance No. 1 of 1970 the Governor of Madhya Pradesh became, the Chancellor of the University. Exercising his powers of review under section 43A of the Act the Governor, as Chancellor, after notice to the appellant, set aside his appointment as Vice Chancellor on 'the ground that only two out of the three members of the Selection Committee were present when his name was included in the panel. The appellant filed a writ petition in the. High Court. The High Court called for the correspondence between the Chairman of the Committee and the member who was absent at the meeting. On the basis of a letter written by the absent member to the Chairman, the High Court can to the conclusion that the member had been deliberately kept out of the meeting and held that the Chancellor was justified in the opinion formed by him under section 43 (A). Allowing the appeal, this Court, HELD : (i) The High Court sustained the order of the Chancellor on grounds other than those relied upon by him in that order, for dismissing the writ petition in limine]. The order made by the Chancellor was based entirely an the legality of the meeting where only two of the three members were present. Then was nothing to show that the corres pondence was persued by the Chancellor. Further, the correspondence did not support the assumption in the High Court 's order that the Chairman was trying to keep out any member from the meeting. [803 D G] (ii) If for one reason or the other one of the members of the Committee, after due notice, could not attend, it did not make the meeting of the others illegal. in such circumstances where there was no rule or regulation or any other provision for fixing quorum in the presence of the majority of the members would constitute a valid meeting and matters considered thereat could not be held to be invalid. [803 H]

minal Appeal No. 100 of 1969. 572 Appeal by special leave from the judgment and order dated January 8, 1969 of the Bombay High Court in Criminal Application No. 1341 of 1968. C. L. Sareen and J. C. Talwar, for the appellant. P. K. Chatterjee and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Shelat, J. The appellant and one Bakshi Singh Sunder Singh were accused No. 2 and accused No. 1 respectively in the committal proceedings before the Presidency Magistrate, 28th Court, Greater Bombay. This appeal, by special leave, is directed against the judgment of the High Court of Bombay refusing to quash the order of committal passed by the learned Magistrate. The facts relevant to this appeal are few and may first be stated. On October 31, 1963, one Jivansingh Uttam Singh obtained a British passport bearing No. 183459 at Nairobi. On the strength of that passport he was returning to India with his family. On his way he died on board the ship. According to the prosecution that passport came into the hands of the appellant. Bakshi Singh desired to go to the United Kingdom, but had no passport. The appellant agreed to arrange his journey and also for that purpose to obtain a passport for him. The allegation was that the appellant prepared an applica tion for a visa in the name of Bakshi Singh. It was further alleged that with a view to procure the said visa the photograph of the said deceased Jivansingh was removed from the said passport and that of Bakshi Singh substituted. The visa having in this fashion been obtained, Bakshi Singh journeyed to the United Kingdom having on his way made some intermediate halts. The British authorities suspected that the, passport was a forged document and repatriated Bakshi Singh to India. On his arrival he was handed over to the Special Police, Bombay. The Special Police carried out investigation in the course of which they recorded statements of certain witnesses including that of Tanna Singh, the younger brother of Bakshi Singh. On completion of the investigation, the police filed a charge sheet before the learned Magistrate. That charge sheet is not before us. But counsel for the appellant informed us that Bakshi Singh was therein charged under secs. 419 and 471 read with sec. 468, and the appellant was charged under secs. 419/109, 468 and 471 of the Penal Code. Counsel also. informed us that the Magistrate did not examine any witnesses, during the committal 573 proceedings but on a perusal of the charge sheet and the documents filed before him under sec. 173 of the Code of Criminal Procedure he framed the charges and committed, by his order dated September 13, 1968, Bakshi Singh and the appellant for trial before the Sessions Court. By that order he directed the said Bakshi Singh to stand his trial under secs. 120B, 419, 467 and 471 read with sec. 467, and the appellant under secs. 120B and 467 of the Penal Code. The offence of criminal conspiracy charged under sec. 120B was that the said Bakshi Singh and the appellant had conspired to forge the said passport for the use of the said Bakshi Singh. In the High Court various contentions were raised on behalf of the appellant in support of his application under sec. 561A of the Code of Criminal Procedure including that under sec. 196A (2). That contention was that no consent as required by sec. 196A(2) having been first obtained, the Magistrate had no jurisdiction to take cognizance of the offence of conspiracy, and therefore, the committal order was without jurisdiction and had to be quashed. In this appeal we are concerned only with that contention as the special leave ranted to the appellant has been limited to that ground alone. Sub sec. 2 of sec. 196A, which is relevant to the present case, provides that no court shall take cognizance of the offence of criminal conspiracy punishable under sec. 120B of the Penal Code in a case ' inter alia where the object of such conspiracy is to commit any non cognizable offence. There is no doubt that the charge, as framed by the Magistrate and for which he committed the appellant and Bakshi Singh to stand their trial before the Sessions Court, was for criminal conspiracy, the object of which was to forge the said passport, a non cognizable offence. In respect of that offence, sec. 196A(2) would undoubtedly apply. What that section prohibits is taking cognizance of an offence of criminal conspiracy unless consent to the initiation of proceedings against the person charged with it has been first obtained. As provided by sec. 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes 574 cognizance of an offence on a complaint or on a police report, or upon information of a person other than a police officer. Therefore, when a magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report. It is not in dispute that the charge sheet submitted by the police officer for the purpose of initiation of proceedings by the magistrate was for offences under sees. 419 and 471 read with sec. 468 against Bakshi Singh and under sees. 419/109, 471 and 468 against the appellant. The charge sheet admittedly did not refer to or charge either of them with criminal conspiracy under sec. 120B. Prima facie it is not possible to say that at the stage when the police filed the charge sheet the Magistrate took cognizance of the offence, under sec. 120B, for, that was not the offence alleg ed in the charge sheet to have been committed by either of the two accused persons. True it is that the Magistrate ultimately drew up charges which included the offence under sec. 120B, the object of which was to forge the passport, an offence under sec. The Magistrate also did not consider it necessary to examine any witnesses and frame the charges on a perusal of the charge sheet submitted to him by the police, the statement of witnesses recorded by the police during their investigation and such other documents as were filed under sec. 173 of the Code of Criminal Procedure &,fore him. The materials before him, therefore, were the same as were before the police officer who had filed the charge sheet. But while drawing up the charges and passing his order of committal, the Magistrate considered that though the charge sheet filed before him alleged the commission of offences under secs. 419/109, 471 and 468, the proper charge on the materials before him, although they were the same as before the police officer, warranted a charge of criminal conspiracy for forging a passport. It is quite clear, however, that the cognizance which he took was of the offences alleged in the charge sheet because it was in respect of those offences that the police had applied to him to initiate proceedings against Bakshi Singh and the appellant and not for the offence under sec. It was at a later stage, i.e., at the time of passing the committal order that he considered that a charge under sec. 120B was the more appropriate charge and not a charge under sec. 109 of the Penal Code. That being so, it must be held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation so far as the appellant was concerned and not of the offence of criminal conspiracy, and therefore, sec. 196A(2) did not apply. Counsel in this connection relied on certain observations made in a minority judgment of section K. Das, J., in Pramatha Nath 575 Taluqdar vs Saroj Ranjan Sarkar. (1) The question involved there was, whether a second complaint could be entertained by a magistrate who or whose predecessor had on the same or similar allegations dismissed a previous complaint, and if so, in what circumstances should such a complaint be entertained. Arising . out of this question a contention was raised whether on the complaint, as it was framed, the Magistrate had the jurisdiction to, take cognizance of the offences alleged in the complaint in the, absence of a sanction under sec. The second complaint alleged offences under secs. 467 and 471 read with sec. 109 of the Penal Code. But in para 5 thereof, there was an allegation as to criminal conspiracy and it was on the basis of that allegation that sec. 196A(2) was sought to be involved. It was in this connection that the learned Judge at page 315 of the report, observed : "It would not be proper to decide the, question of sanction me rely by taking into consideration the offences mentioned in the heading or the use of the expression " criminal conspiracy" in para, 5. The proper test should ' be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of the proceedings within the meaning of section 196A(2) of the Code of Criminal Procedure. It is from that point of view that the petition of 'complaint must be examined. " The learned Judge ultimately held that though the offence of criminal conspiracy was alluded to in para 5 of thesaid complaint, the offence "primarily and essentially" chargedwas abetment by conspiracy under sec. 109 of the Penal Code, and therefore. no consent under sec. 196A(2) was required. In Biroo Sardar vs Ariff (2) the view also taken was that itis not the, sections referred to which matter but the offence prima facie disclosed. Following that decision, the High Court of Bombay in Ramchandra vs Emperor(3) observed that the question whether sanction is necessary or not depends not on the sections referred to in a complaint but the offence prima facie disclosed '. by the facts alleged in it. It is clear from the charge sheet submitted to the magistratethat the offence of criminal conspiracy was not even referred to. The offence "primarily and essentially" alleged therein was oneof abetment of forgery under secs. 468 and 471 and of false, (1) [1962] Supp. 2 S.C.R. 297. (2) A.I.R. 1925 Cal. (3) A.I.R. 1939 [Bom.] 129. 576 impersonation under sec. 419 read with sec. Assuming that the Magistrate before taking cognizance had persued the statements of witnesses recorded by the police during investigation, it was conceded by counsel, after he himself had gone through them from the record, that none of the witnesses had alleged therein either directly or indirectly of the appellant having entered into a criminal conspiracy with Bakshi Singh for forging the passport. It cannot be disputed that the charge sheet also prima facie disclosed the offence of abetment. That being so, it is ,impossible to sustain the argument that the Magistrate took cognizance of the offence under sec. 120B, and therefore, consent under sec. 196A(2) was required as a condition precedent or that the committal order and the proceedings for committal which be took were vitiated for want of such consent. The appeal, therefore, fails and is dismissed. V.P.S. Appeal dismissed.

In 1944 the Ruler of the erstwhile Indian State of Korea granted to D a mining lease in respect of an area of 5.25 sq. miles in the State. According to the terms of the lease the rates of royalty varied from 5% 0 25% according to the price of the coal per tons extracted from the eased area, that is to say, from 4 as. per ton if the price was Rs. 51 per .on to 25% of the price per ton at the pit 's head if that price was Rs. 20/or more. On the merger of the Korea State with Madhya Pradesh the leased area became subject to the provisions of the Mines & Minerals (Regulation and Development) Act 53 of 1948 and the Mineral Concorde Rules, 1949. , In 1952 D assigned the lease and its benefits to the respondent company. The State of Madhya Pradesh granted its consent to the assignment for the unexpired period of the lease in consideration of the respondent company agreeing to comply with the terms and conditions of the lease including payment of royalties ' On December 28, 1967 Parliament passed the Mines & Minerals (Regulation and Development) Act 67 of 1957 under its power under Entry 54 of List I of the Seventh Schedule to the Constitution. The Act as amended by Act 15 of 1958 was brought into force by a notification of the Central Government with effect from June 1, 1958. Under section 9(1) of the Act a lessee under a mining lease granted before the commencement of the Act was liable to pay royalty at the rate for the time being specified in the Second Schedule. Under item (1) of the Second Schedule royalty payable in respect of coal was the same as under r. 41 of the Mineral Concession Rules, 1949, that is, 5% of the f.o.r. price, subject to. a minimum of fifty naye paise per ,on. Under section 30A which had been inserted by Act 15 of 1958 with re trospective effect, the provisions of section 9(1) and section 16(1) were not applicable to mining leases granted before 25th October 1949 in respect of coal, but the Central Government bad power if satisfied that it was expedient to do so, to direct by notification in the Official Gazette, that all or any of the said provisions (including rules made under sections 13 and 18) shall apply to or in relation to such leases "subject to such exceptions and modifications, if any, as may be specified in that or in any subsequent notification". On December 29. 1961 the Central Government issued a notification in exercise of its power under the second part of section 30A by which it directed application of section 9(1) with immediate effect to or in relation to the pre 1949 coal mining leases "subject to the modification that the lessee shall pay royalty at the rate specified in any agreement between the lessee and the lessor or at 2 1/2% of f.o.r. price, whichever is higher, in lieu of the rate of royalty specified in respect of coal in the Second Schedule to the said Act. " The Collector served upon the respondent company demand notices to pay the arrears of royalty for the period December 29, 1961 to December 31, 1965 at the rates specified in the lease. The com 610 pany in a writ petition before the High Court urged that the exception; and modifications under section 30A had to be and were intended to cushion of soften the burden which would otherwise fall on the lessees under section 9(1) and the Second Schedule and therefore any modification or exception which would be specified in such notification was intended to reduce rather than increase the rate of royalty payable under section 9(1). The State Government contended that the respondent company was bound to pay royalty at the rates provided in its lease, that being higher than the minimum.or 2 1/2% provided in the notification. The High Court rejected the contention raised by the State as being inconsistent with the purpose for which section 30A was introduced. The State appealed. HELD : The notification was issued in exercise of the powers con feared by section 30A. That power was to apply by issuing a notification there% under, sections 9(1) and 16(1) and the rules made under sections 13 and 18. The notification in terms directed the application of section 9(1) which meant that on and from December 29, 1961 the company would have to pay royalty as prescribed under that sub section read with the Second Schedule, that is, at 5%. The notification however applied section 9(1) subject to one modification, namely. that the lessees under the pre 1949 leases were to pay royalty at the rate provided in their leases or at 21% whichever was higher. The modification was to the rate applicable under section, 9(1) and the Second Schedule, that is, to the rate of 5%. Considering the object with which section 30A was enacted viz. to phase the rate of 5% and not to impose it at one stroke, the modification could not mean recovery at a rate inconsistent with section 9(1) and the Second Schedule. that is, at the rate higher than 5% provided thereunder. [620 D F] Such a modification, if it were to be construed as meaning payment at a rate higher than 5% would be in excess of the power under section 30A and also in contravention of the language of section 9(1) and the Second Schedule. A lateral meaning which the State canvassed for could therefore be accepted only at the cost of invalidating the notification. Where two constructions are possible the one which sustains the validity of the law must be preferred. [620 G H; 621 A] On a plain reading of the notification it was clear that what it meant was that instead of the rate flowing from the application of section 9(1) and the Second Schedule, a modified rate should be applied, that is, 'in lieu of the rate of royalty ' specified in the Second Schedule, royalty at the agreed rate should be charged if it was lower than 5% or at 21% minimum, whichever was higher. The notification thus did not empower the State Government to recover royalty at a rate higher than 5% in lieu of the rate chargeable under section 9(1) and the Second Schedule which provided 5% only. [621 B C] The High Court was therefore justified in quashing the impugned orders also the demand notices issued in pursuance of that order.

ivil Appeal No. 1810 of 1982. From the Judgment and Order dated 30.3.1982 of the Delhi High Court in S.A.O. No. 204 of 1980. Ram Panjwani and Vijay Panjwani for the Appellant. Avadh Behari Rohtagi and P.N. Gupta for the Respondent. The Judgment of the Court was delivered by V. RAMASWAMI, J. The tenant is the appellant. The re spondent landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act ') for an order of eviction of the appellant tenant for a shop bearing No. 361 (Old No. 467 25 A) Azadpur, G.T. Road, Delhi, on the ground that the tenant Duli Chand has sub:let or parted with the possession of the said shop after 9th day of June, 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of the landlord. The main contention of the tenant was that there was no sub letting or parting with the possession of the shop, that Hira Lal was a relative of the tenant who died some time prior to 1958, that Sri Bhagwan is the son of the tenant, and that the name of the business was given as M/s Hira Lal Sri Bhagwan in memory of the deceased relative Hira Lal. He further pleaded that the possession of the shop is with the tenant. Some other defences like the Respondent petitioner was not a landlord, that he had no locus standi to file the petition for eviction, and that the notice of termination of tenancy was not valid, were taken in the written statement and they were overruled and do not survive for consideration in this appeal. On the main contention, the tenant has taken up the defence that Sri Bhagwan is the son of the respondent and the name of the business M/s Hira Lal Sri Bhagwan is given only in memory of the deceased relative Hira Lal. A reply statement was filed by the land lord to the effect that though Sri Bhagwan was the natural son of the tenant Duli Chand, he had been given in adoption to Hira Lal, that on such adoption Sri Bhagwan had gone out of the family of the respondent and that it was a clear case of sub letting or parting with the possession of the shop. On the facts and circumstances of the case, the question of subletting did not arise but the case was considered on the dispute whether the tenant had parted with possession of the shop. The tenant never pleaded that he had obtained any written consent from the landlord for parting with posses sion. The only question, therefore, for consideration in this case is as to whether the tenant had parted with pos session of the whole or part of the tenanted premises. The learned Rent Controller held that the landlord had not proved parting with possession of the tenanted shop by the tenant. On appeal by the landlord the Rent Control Tribunal held that the tenant had parted with the legal possession of the tenanted premises and in that view ordered the eviction of the tenant under section 14(1)(b) of the Act. The second appeal filed by the tenant to the High Court was dismissed confirming the finding of the Rent Control Tribunal that the tenant had parted with possession of the tenanted shop. Section 14(1)(b) of the Act provides that the Rent Controller may on an application made to him in the pre scribed manner make an order for recovery of possession of the premises on the ground 468 "(b) that the tenant has, on or after the 9th day of June, 1952, sub let, assigned or other wise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. " The parametric content and the meaning of the words "parted with possession of the whole or any part of the premises" had come up for consideration in a quite number of cases including some of the decisions of this Court. It is enough if we refer to the latest judgment of this Court on this point. In Jagan Nath (deceased) through L.Rs. vs Chander Bhan and Others, ; , Mukharji, J. speaking for the Court held that: "parting with possession meant giving posses sion to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the fight to possession. So long as the tenant retains the fight to possession there is no parting with possession in terms of clause (b) of section 14(1) of the Act. " The facts in this case as found by the Rent Control Tribunal which was accepted by the High Court are that the concern M/s Hira Lal Sri Bhagwan is the sole proprietary concern of Sri Bhagwan, that Sri Bhagwan has been carrying on that business in the premises in dispute, that Duli Chand tenant had no interest in the business, that Sri Bhagwan is in exclusive possession of the property, that tenant Duli Chand works at another Shop, M/s Aggarwal Hard ware and Mills Stores with his younger son, that there was no plea of concurrent user of the premises by the tenant nor there is any plea that Sri Bhagwan is a licensee, that occasionally the tenant Duli Chand was seen sitting in the shop and that the tenant had not retained any control over the same. These facts clearly support the finding of Appel late Tribunal and High Court that the tenant had parted with legal possession of the shop to the said Sri Bhagwan. The learned counsel for the appellant, however, contend ed that Sri Bhagwan was not the adopted son of Hira Lal and that by permitting the son to carry on business it could not be stated that he had 469 parted with the legal possession of the premises. In this connection, he drew our attention to the decision of this Court in Lakshman Singh Kothari vs Smt. Rup Kanwar, ; wherein this Court had held that in order that an adoption may be valid under Hindu Law there must be a formal ceremony of giving and taking by the natural parent and the adopted parent after exercising their volition to give and take the boy in adoption and that such an evidence of a valid adoption is not available in this case. The Appellate Tribunal and the High Court have dealt with the evidence available in this case in detail and came to the conclusion that Sri Bhagwan was adopted by Hira Lal. It is not neces sary for us to rely on the evidence available or the find ings as proof of a valid adoption under Hindu Law but the evidence and the findings are enough to show that though Duli Chand and Sri Bhagwan are father and natural son, it is not possible to invoke any presumption that they constituted a Joint Hindu Family. It may also be mentioned that in the written statement the tenant had not pleaded specifically that he and Sri Bhagwan, constituted a Hindu Joint Family, that they are in joint possession, that either the business is joint family business or Sri Bhagwan was permitted to use the premises for carrying on any business as licensee re maining in joint possession. The evidence on adoption is thus to be treated only relevant for the purpose of consid ering the question whether the tenant has not retained any control over the premises and that he has parted with the possession, and we do not think that the Courts below erred in relying on the same for this purpose. At this stage we may dispose of another point raised by the learned counsel in connection with the admissibility of certain evidence in this case. In support of the case of the landlord that Sri Bhagwan was adopted by Hira Lal he exam ined three witnesses, AW 2, AW 3, and AW 4. The first wit ness was an Inspector of House Tax According to this witness in the House Tax assessment register Sri Bhagwan was shown as the son of Hira Lal and residing at 26 Sarai Peepal Thalla, which was the residence of Hira Lal and not that of tenant Duli Chand. The next witness was an Upper Division Clerk of the Excise Department. His evidence was to the effect that in the licence issued under the Central Excise Act the father 's name of Sri Bhagwan was shown as Hira Lal. The other witness was Upper Division Clerk in the Sales Tax Department and his evidence was that Sri Bhagwan was an assessee of the Department and as per the records in his office the father 's name of Sri Bhagwan was Hira Lal. The learned counsel contended that these evidences were inadmis sible under Section 91 of the Evidence Act. Section 91 of the Evidence Act provides 470 that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such con tract, grant or other disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of Evidence Act. This Court has considered the scope of section 91 in Bai Hira Devi and Others vs The Official Assignee of Bombay, ; it was held therein: "The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on which is sometimes de scribed as the "best evidence rule". The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. " The evidence in this case is not with reference to the terms of contract or grant or any other disposition of property which has been reduced to the form of a document or a case in which the matter is required by law to be reduced in the form of a document but the evidence is to the effect that Sri Bhagwan has given his father 's name as Hira Lal while claiming ownership to the House No. 26, Sarai Peepal Thalla to the Municipality and similarly the evidence of the other witnesses were that while applying for a licence he had given his name as son of Hira Lal. The evidence may be worth nothing without production of the extracts from the property register or the other books maintained by the departments. However, that does not make the evidence itself inadmissible. The learned counsel for the appellant then contended that Sri Bhagwan had been carrying on business right from 1958 to the knowledge of the landlord and that therefore, the landlord shall be deemed to have waived his right to get order of eviction on the ground of parting with the posses sion under section 14(1)(b) of the Act. In this connection, the learned counsel for the appellant relied on the 471 evidence of the landlord and some of his witnesses. The landlord in his evidence as AW 1 has stated that Sri Bhag wan has been to his knowledge sitting at the shop since the year 1968 that he has seen the board of M/s Hira Lal Sri Bhagwan since 1972, and that he was residing in the same building behind the shop in dispute. AW 5 who is the Uncle of the landlord who came to depose on behalf of the landlord in his evidence had stated that the firm M/s Hira Lal Sri Bhagwan is doing the business in premises since 1960 61. The tenant in his evidence has stated that the firm M/s Hira Lal Sri Bhagwan is functioning in the disputed premises for the last 18 years. The Rent Controller found that Shri Bhagwan was doing business in the said premises since 1962, i.e., after the death of Hira Lal. On the basis of this evidence the learned counsel contended that the landlord was aware that Shri Bhagwan was carrying on business for at least 16 years prior to the filing of the petition for eviction and in the circumstance he shall be deemed to have waived his claim for eviction under section 14(1)(b). The learned counsel for the landlord, however, contended that the land lord had not received the rent after he came to know of the parting with the possession by the tenant that he was col lecting rent till about 1972 only from the tenant Duli Chand, that the tenant defaulted in payment of the rent subsequent to 1972, and the petition for eviction was filed thereafter in 1976 and in such circumstances there could be no question of waiving of his right with knowledge of part ing with possession by tenant could arise in this case. He also contended legally no such waiver could be pleaded on the language used in section 14(1)(b) of the Act. In Associated Hotels of India Ltd. Delhi vs S.B. Sardar Ranjit Singh, ; this Court held that, a waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his right and of facts enabling him to take effectual action for the enforce ment of such right. In the present case, though there is some evidence to show that the sign board M/s Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Sri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had came to know of Sri Bhagwan getting the exclusive possession and doing business in the premises. In fact, since the question of waiver has not been raised in this form in the courts below there is no definite finding as to when the landlord came to know of such parting with possession and Sri Bhagwan doing business in the pre 472 mises as the sole proprietor of M/s Hira Lal Sri Bhagwan and whether he had received rent after such knowledge. We can not, therefore, permit this point to be raised for the first time in this Court nor can we go into this question of fact. That apart section 14(1)(b) requires a "consent in writing" of the landlord in order to avoid an eviction on the ground of sub letting, assigning or otherwise parting with the possession of the whole or any part of the premises. This Court considering the need for obtaining a consent in writ ing under the provision, in M/s. Shalimar Tar Products Ltd. vs H.C. Sharma and Others, ; quoted with ap proval the following passage from the judgment of the High Court in Delhi Vanaspati Syndicate vs M/s. Bhagwan Dass, Faquir Chand: "Section 16 of the Act of 1958 holds the key to the interpretation of provisions of clause (b) of sub section (1) of section 14 of this Act as well as of clause (b) of sub section (1) of section 13 of the Act of 1952. It deals with restrictions on sub letting. Sub section (1) of section 16 makes sub letting lawful though it was without the consent of the landlord provided that the sub letting has taken place before June 9, 1952 and the sub tenant is in occupation of the premises at the time when the Act of 1958 came into force. Sub section (2) of section 16 reiterates the provisions of clause (b) of sub section (1) of section 13 of the Act of 1952 and lays down that the sub letting after June 9, 1952 with out obtaining the consent in writing of the landlord shall not be deemed to be lawful. It does not say that the requisite consent should be obtained before sub letting the premises and the consent obtained after sub letting will not enure for the benefit of the tenant. However, sub section (3) of Section 16 prohib its subletting of the premises after commence ment of Act of 1958 without the 'previous ' consent in writing of the landlord. The use of the word 'previous ' in this sub section shows that where it was the intention of the legis lature that the consent in writing should be obtained before sub letting it said so specif ically. The absence of the word 'previous ' in sub section (2) shows that it was not the intention of the legislature that the consent in writing could be obtained before sub letting. Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in subletting of escape forfeiture of tenancy. Since the absence of 473 consent in writing by a landlord for sub letting gave rise to Unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement. The purpose seemed to be that the consent of the landlord evidenced by a writing would cut out litiga tion on this ground. After all a landlord could always agree to sub letting either before or after sub letting of the premises. For that reason no condition was laid down that such consent should be obtained before sub letting the premises. " In the aforesaid view it was held that it was necessary for the tenant to obtain the consent in writing to sub letting the premises. The mere permission or acquiescence will not do. The consent shall also be to the specific sub letting or parting with possession. This Court further observed that the requirement of consent to be in writing was to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not and that, therefore, mere permission or acquiescence will not do. While noting that everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protec tion of the individual in his individual capacity, in the context of the statutory provision of the Delhi Rent Control Act, this Court further held that the requirement as to the consent being in writing was in the public interest and that, therefore, there cannot be any question of waiver of a right, dealing with the rights of the tenants or landlord. The words used in the section are "without obtaining the consent in writing of the landlord. " If the words were "without consent of the landlord" it might mean without consent, express or implied and in that sense question of waiver may arise. The question of implied consent will not arise, if the consent is to be in writing. The learned counsel for the appellant referred to a number of decisions of the English Courts in support of his contention. We do not think it necessary to refer to them in view of the direct decision of this Court on this point. In the circumstances, there are no grounds to interfere with the decisions of the courts below. This appeal is accordingly dismissed with costs. Y. Lal Appeal dis missed.

The appellant No. 1 is a private limited Company incor porated under the Indian Companies Act. The Company had at all relevant times 7 share holders and the total number of shares subscribed and paid up was 2010 shares. The appellant No. 2 is a shareholder and a whole time Director of the Company. Consequent upon the death of one share holder, Mr. S.K. Desor, who had controlling interest in the Company, his legal representatives, wife and children respondents herein. filed a petition under Section 397 and 398 of the Act and in the alternative prayed for winding up of the company. A preliminary objection was raised on behalf of Mrs. Amrit K. Singh, appellant No. 2 regarding the maintainability of the petition on the ground that the respondents were not members of the company as their names had not been recorded in the register of members and as such they had no locus standi to file the petition in question. A further objection was also taken that a composite petition under Sections 397 and 398 of the Act with an alternative prayer for winding up of the company was not maintainable. A company Judge of the High Court before whom the peti tion came up for hearing held that the respondents who were the wife and children of the deceased share holder and who having obtained Reserve Bank 's permission and letters of administration according to law should be treated as members for the purpose of maintaining a petition under Sections 397 and 398 of the Act. The company Judge also held that a composite petition was maintainable. Appellant No. 2 preferred an appeal against the order of the Company Judge. The appellants also moved this Court under Article 136 of the Constitution against the order of the Company Judge. This court by its order dated 18th Janu ary 1989 stayed the further proceedings before the Single Judge and directed expeditious disposal of the appeal. The Division Bench dismissed the appeal holding that the peti tion under 546 Sections 397 and 398 was maintainable. Hence this appeal. The same two questions as stated above arose for deter mination by this Court, Dismissing the appeal, this Court, HELD: Succession is not kept in abeyance and the proper ty of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under Section 109 of the Act. [558D] In some situations and contingencies, the 'member ' may be different from a 'holder '. A 'member ' may be a 'holder ' of shares but a 'holder ' may not be a 'member '. [558E] To hold that the legal representatives of a deceased shareholder could not be given the same right of a member under Sections 397 and 398 of the Act would be taking a hyper technical view which does not advance the cause of enquiry or justice. [558B] In the instant case, the legal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would. therefore, be wrong to insist that their names must be first put on the register before they can move an application under Sections 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. [558F G] The decision of the English courts are not binding on the courts in India. But the observations or the reasoning are of persuasive value. [555C] Re Jermyn Street Turkish Baths Ltd., [1970] 3 All E.R. 37; Re Bayswater Trading Co. Ltd. ; James vs Quena Venture Nitrate Grounds Syndicate Ltd., [1896] 1 Chancery Division 456; Re Dlewellyn vs Kasintoe Rubber Estate Ltd., ; New Zealand Gold Extraction Company, (Newberyvautin Process) Ltd. vs Peocock, ; Re Meyer Dougals Pty Ltd., [1965] V.R. 638; Kedar Nath Agarwal vs Jay Engg. Works Ltd. and Ors. , ; Rajahmundry Electric Supply Corpn. Ltd. vs A. Nageshwara Rao and Ors. , ; ; Life Insurance Corporation of India vs Escorts Ltd. and Ors., AIR 1986 SC 547 1370 at p. 1412; Shanti Prasad Jain vs Kalinga Tubes, and Bilasrai Joharmal and Ors. vs Akola Electric Supply Co. Pvt. Ltd., , re ferred to.

No. 47 of 1966. Petition.under article 32 of the Constitution of India for the enforcemont of fundamental rights. The petitioner appeared in person. 210 Niren De, Additional Solicitor General, N. section Bindra, R. H. Dhebar and B.R.G.K. Achar, for the respondent. R. V. section Matti, for the intervener. The Judgment of the Court was delivered by Sarkar, CJ. The petitioner, Puran Lal Lakhanpal, was arrested and detained under cl. (b) of sub r. (1) of Rule 301 of the Defence of India Rules. 1962 by an order passed on December 10, 1965 and directed to be detained in Central Jail, Tehar, New Delhi. The order stated that: "WHEREAS the Central Government is satisfied that with a view to preventing Shri P.L. Lakhanpal. son of late Shri Diwan Chand Sharma. . from acting in a manner prejudicial to the Defence of India and Civil Defence, public safety and the maintenance of public order, it is necessary that he should be detained; NOW, THEREFORE. . . the Central Government hereby directs that the said Shri P. L. Lakhanpal be detained. " He has moved this Court under article 32 of the Constitution by a petition presented on December 24, 1965 for a writ of habeas corpus directing his release. He challenges the legality of the detention order on various grounds which we now proceed to consider. The first ground is that r. 30(1)(b) is ultra vires section 3(2)(15)(1) of the Defence of India Act under which the Rules were made. Sub s.(1) of section 3 contains the general power to make rules for certain purposes. Sub section (2) states that the rules made may provide for and many empower any authority to make orders providing for all or any of the following matters, namely: "(15) notwithstanding anything in any other law for the time being in force. . . . (i) the apprehension and detention in custody of any person whom the authority empowered. . suspects, on grounds appearing to that authority to be reasonable . . . . acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest,the maintenance of public order. . or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner." 211 Rule 30(1)(b) is in these terms: "The Central Government. . . if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order. . . may make an order (b) directing that he be detained. " It will be noticed that the rule does not say that the satisfaction mentioned in it shall be on grounds appearing to the authority concerned to be reasonable. It is said that by omitting these words the rule has gone outside the section which mentions them, and is, therefore, ultra vires. This contention is untenable. It overlooks the fact that the latter part of the section states that the rules made under it may also provide for the apprehension and detention of a person "with respect to whom that authority is satisfied that his apprehension and detention are necessary" for certain purposes; this part does not contain any requirement as to satisfaction on reasonable grounds. This part of the section is independent of the earlier part under which the apprehension and detention can be directed only when the authority suspects on certain grounds appearing to it to be reasonable that a person is about to act in a certain manner. It is of some significance to point out that the second part of the section is preceded by the word 'or '. That puts it beyond doubt that the rules made under it may provide for detention in two alternative cases, for the first of which only it is necessary that the authority should entertain a suspicion on grounds appearing to it to be reasonable. That requirement is absent in the case of a rule made under the second part of the section. Rule 30(1)(b) cannot be said to be ultra vires the section for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable. The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says. The rule has clearly been made in terms of the section authorising it. It was next said that the Proclamation of Emergency made by the President under article 352 of the Constitution which prevented the Act from being illegal, was not in terms of the article as it did not state that the President was satisfied that a grave emergency existed. It is true that the Proclamation did not do that. It stated: " In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I Sarvapalli Radhakrishnan, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression. " 212 We, however, find nothing in the Article which requires the Proclamation to state the satisfaction of the President about the emergency. Article 352(1) reads, "If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. " The Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words "to that effect" can have no other meaning. The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency, but we do not see that the Article requires the condition precedent for the exercise of the power, that is, the President 's satisfaction, to be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly performed applies and there is nothing proved by the petitioner to displace that presumption. We were referred to certain other provisions, viz., article 311(2)(c) of the Constitution and r. 30(1)(b) of the Rules and it was contended that these provisions require the satisfaction to be stated. It is unnecessary to decide whether they so require. Even if they did, the requirement of the statement of the President 's satisfaction in the present case has to be decided on the terms of article 352 alone. We have said that this Article does not contain any such requirement. It is of interest to point out here that the petitioner stated in his petition that he extended his full support to the Government on the Proclamation of Emergency. Obviously he could not have done so if he had any doubt about the legality of the Proclamation. Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended. We find nothing in the Article to require the Proclamation to state this. The Proclamation was issued on October 26, 1962 when, it is well known, India 's integrity was threatened by China. It was also stated that the continuance of Emergency which was declared over three years ago is a fraud on the Constitution. We were told that the President in his address to the Parliament in February this year did not state that the Emergency continued to exist. The President 's address has not been produced, and we do not know what it contained. However that may be, article 352 itself by cl. (2) provides that a Proclamation issued under cl. (1) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not 213 been stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation. In this connection it was also said that 'external aggression ' means armed aggression and as for some time past there was no armed, aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also fail, on the ground which we have just mentioned. Another challenge to the legality of the detention was that the petitioner had not been allowed to make any representation against his detention. Our attention was drawn in this connection to section 3(2) (15)(iv) of the Act and r. 30 A of the Rules and also to r. 23, of the Defence of India (Delhi Detenues) Rules, 1964. The two first mentioned provisions do not, in our opinion, give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenue will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. It has not been stated in the petition that the petitioner was pre vented from making any representation or denied the opportunity to consult a legal practitioner. All hat is said is that he had not been furnished particulars of his writing s and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioner 's writings, nor has our attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detention. Then it was said that the order of detention violated section 44 of the Act and section 3(2)(4)(b), (6), (7)(a)(b)(c) and (d) and rr. 41, 42, 44, 45 and 46 of the Rules. The substance of the contention is that the petitioner was the editor of and ran a newspaper and that action against him could only be taken under the sections and rules earlier mentioned and not under r. 30(1)(b). This contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under r. 30(1)(b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under r. 30(1)(b). It was also said that r. 30(1)(b) requires that the part of India which is to be prejudicially affected by the acts of the detenue has to be mentioned in the order. This is an idle contention. The 214 rule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be ordered for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of section 44 have been violated. There is nothing to show that the detention interfered with the petitioner 's avocation in life in a manner not justified by that section. The last ground taken was that the detention order was mala fide because the Home Minister had not sworn an affidavit to say that he was satisfied about the necessity for the detention. There is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioner 's knowledge. This verification was plainly false and, therefore, the allegation in the petition required no answer. However, that may be, a Deputy Secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and, on a consideration of those materials, the Minister was satisfied that the detention order was necessary. The result is that this petition fails and it is accordingly dismissed. Petition dismissed.

The father of the first respondent sold his lands to the second respondent but continued to be in possession. The second respondent sold them to the appellants who were put in possession in 1934. In August 1945, the first respondent filed a petition against the second respondent, before the Debt Adjustment Board, under Ss. 17, 18 and 45 of the Bombay Agricultural Debtors Relief Act, 1939, within the time prescribed by section 17, alleging that the transaction with the second respondent was a mortgage and that the debt was liable to be adjusted under the Act. The first appellant was impleaded as a party to the petition in December 1945, beyond the time specified in section 17. No appeal was filed against that order, and in 1947, the Board disposed of the petition for adjustment of debt by directing the second respondent to render accounts. He appealed and, pending the appeal, the 1939 Art was repealed by the Bombay Agricultural Debtors Relief Act of 1947. In 1949, the appellate Court set aside the Board 's order and remanded the case to the Civil Judge, for deciding the nature of the transaction, because, under the 1947 Act, the Board was dissolved and its jurisdiction was vested in the Civil Judge. In 1950, the first respondent 's application to the Civil Judge for impleading the second respondent also as a party to the petition for adjustment of the debt, was allowed, and thereafter, the matter was disposed of on merits. On the questions: (i) Whether the orders impleading the appellants were without jurisdiction. and (ii) whether the appellants had acquired title to the lands by adverse possession, HELD: (i) The orders were not without jurisdiction. Under the repealed Act, if a party was added beyond the period prescribed under section 17 of the Act, if he was added as a necessary party to a petition filed in time, the said order might be improper but not without jurisdiction. [151 C D] Under section 56 of the 1947 Act, original and appellate proceedings initiated under the repealed Act but pending at the time the 1947 Act came into force will have to be disposed of in accordance with the substantive and procedural sections of the 1947 Act. Under section 46 of the 1947 Act, the court is empowered. in a suitable case, to add Parties under 0.1, r. 10, Civil Procedure Code, and they may be added irrespective of the time limit prescribed under the repealed Act, or the time specified in Ss. 4 and 24 of the 1947 Act. [152 A C] Case law referred to. (ii) The appellants had not acquired any title by adverse Possession, as the petition for adjustment of debt was filed within 12 years from the date of their occupation of the suit lands.

Appeal No. 92 of 1952. Appeal by special leave from the Judgment and Order dated 16th May, 1951, of the High Court of Judicature at Calcutta (Harries C. J. and Das J.) in Appeal from Original Order No. 136 of 1949 arising out of Judgment and Order dated the 25th April, ' 1949, of the said High Court (Banerjee J.) in Extra ordinary Suit No. 2 of 1948. N. C. Chatterjee (B. Sen, with him) for the appellant. section P. Sinha (A. K. Dutt, with him) for the respondent. February 27. The Judgment of the Court was delivered by MUKHERJEA J. This appeal, which has come before us on special leave, is directed against a judgment of an Appellate Bench of the Calcutta High Court, dated the 16th May, 1951, by which the learned Judges dismissed an appeal taken against an order, made by a single Judge on the Original Side of that Court,, under clause 13 of the Letters Patent, on the preliminary ground that the appeal was not competent in law. There is no dispute about the material facts of the case which lie with in a short compass. On 7th August, 1947, a suit was filed by the respondent Kumar Rupendra Deb Raikot in the Court of the Subordinate Judge at Jalpaiguri in West Bengal,being Title Suit No. 40 of 1947,for recovery of possession of a large estate known as Baikunthapur Raj situated in that district, on the allegation that he, being the eldest son of late Prosanna Deb Raikot, the last holder of the estate, became entitled to the properties on the I death of his father under a custom of the family which excludes all females from inheritance and follows the rule of Iineal 1161 primogeniture in matters of succession. Prosanna died in December, 1946, and Asrumati Debi, the appellant before us, is admittedly his widow. There was no son born to her and her only child is a daughter named Prativa. According to the plaintiff respondent, his mother Renchi Debi, who is a Lepcha by birth was another lawfully wedded wife of Prosanna and was married to the latter in what is known as the " Gandharba form. Prosanna had three sons by this wife, the plaintiff being the eldest. Asrumati, it is alleged, took possession of the bulk of the properties comprised in the estate on the death of her husband, although she had no legal right to the same and it was to evict her from these properties that this suit was brought. Besides Asrumati, the plaintiff also impleaded three other agnatic relations of the deceased (who are defendants Nos. 2 to 4) and also his own two younger brothers as defendants to the suit. Asrumati filed her written statement on January 19, 1948, and the main defence put forward by her was that there was no legal marriage between her husband and the plaintiff 's mother, the latter being only one of the several mistresses of her husband. She denied that there was any custom in the family under which females were excluded from inheritance. The defendants 2 to 4 also filed written statements, challenging the legitimacy of the plaintiff and his claim to succession, and put forward their own rights as heirs under the customary law obtaining in the family. On 30th April, 1948, the plaintiff presented an application in the Original Side of the High Court of Calcutta under clause 13 of the Letters Patent, praying for transfer of the suit filed in the Jalpaiguri court to the High Court to be tried in its Extraordinary Original Civil Jurisdiction. This application was heard by Banerjee J. sitting singly and by his order dated the 25th of April, 1949, the learned Judge allowed the application, substantially on the ground that having regard to the atmosphere of prejudice that was created in the locality by supporters of the defendant, who wielded 1162 considerable influence in the district, the plaintiff might have a legitimate apprehension that he would not get fair trial in the district court. Against this decision the defendant No. 1 took an appeal to the Appellate Bench of the High Court of Calcutta and the learned Judges (Trevor Harries C. J. and Das J.) dismissed the appeal on the ground that the order appealed again was not a 'judgment ' within the meaning of clause 15 of the Letters Patent. It is the propriety of this decision that has been challenged before us in this appeal. The High Court of Calcutta in holding the appeal before it to be incompetent based its decision entirely upon an earlier pronouncement of a Division Bench of the same court, where it was held by Mookerjee A.C.J. sitting with Fletcher J. that an order for transfer of a suit made under clause 13 of the Letters Patent was not a 'judgment ' within the meaning of clause 15 (1). Reliance was placed by the learned Judges for this view upon the pronouncement of Sir Richard Couch C. J. in the well known and often cited case of The Justice of the Peace for Calcutta vs The Oriental Gas Company (2), where the learned Chief Justice said as follows: "We think that 'judgment ' in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined. " The identical question, whether an order for transfer under clause 13 of the Letters Patent is a 'judgment ' for purposes of appeal, was pointedly raised before the Madras and the Rangoon High Courts, and while the Madras High Court (3) answered the question hi the affirmative, a definitely negative answer was given by (1) See Khatizan vs Sonairam, I.L.R. (2) 8 Ben. L.R. 433. (3) Vide Krishns Reddi vs Thanikacha, I.L.R 47 Mad. 136. 1163 the Rangoon High Court (1). The Madras decision purports to be in accordance with the view enunciated a Full Bench of that court in Tuljaram vs Alagappa(2) where Sir Arnold White C. J. sitting with Krishna swami Aiyar and Ayling JJ. formulated a definition of 'judgment ' in a comprehensive manner differing fro the wide interpretation put upon the term in the earlier case of DeSouza vs Coles (3). "The test seems me," thus observed the learned Chief Justice, "to be not what is the form of the adjudication, but what is its effect on the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. " This decision, it may be pointed out, has not only been adhered to in Madras since then without any comment, but the Calcutta High Court has in several instances manifested a marked leaning towards it (4). On the other hand, a Full Bench(1) of the Rangoon High Court presided over by Page C.J. took 'a view altogether different from that of the Calcutta and the Madras High Courts as regards the meaning of the word I judgment ' in clause 13 of the Rangoon Letters Patent, which corresponds to clause 15 of the Letters Patent of the Calcutta and Madras High Courts. It was held by the Full Bench of the Rangoon High Court that the term 'judgment ' in the Letters Patent means and is a decree in a suit by which the rights of the parties in the suit are determined. In other words, 'judgment ' is not what is defined in section 2 (9) of the Civil Procedure Code as being the statement given by the judge of the grounds of a decree (1) Dayabhai vs Muyugappa Chettiay, 13 Rang. 457 (F.B.). (2) 35 M 1 (F.B.). (3) (4) Vide Muathura Sundari vs Haran Chandra I.L.R. 43 Cal. 857; Chandi Charan vs Jnanendra 29 C.L.J. 225 at 229 Lea Badin vs Upendra Mohan Roy Chaudhury, 1164 or order, but is a judoment in its final and definitive sense embodying a decree. A final ' judgment is an adjudication which conclusively determines the rights of the parties with regard to all matters in issue in the suit, whereas a preliminary or interlocutory judgment is a decree by which the right to the relief claimed in the suit is decided but under which further proceedings are necessary before a suit in its entirety can be disposed of. Save and except final and preliminary judgments thus defined, all other decisions are ' orders ' and they do not come within the description of I judgments ' under the relevant clause of the Letters Patent. No 'order ' is appealable unless an appeal is expressly provided against it by the Civil Procedure code or some other Act of the Legislature. In this view an ' order ' for transferring a suit from a subordinate court to the High Court could not possibly be regarded as a 'judgment ', and consequently no appeal would lie against such an order. This definition of ' judgment 'has been accepted in several cases by the Nagpur High Court (1), and substantially this seems to be the view of the Allahabad High Court also (2). A Full Bench of the Lahore High Court(, '), however, has refused to accept this view and has preferred to follow the tests enumerated by the Calcutta and the Madras High Courts. The Bombay High Court accepted the Calcutta view from the very beginning (4). In view of this wide divergence of judicial opinion, it may be necessary for this court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word I judgment ' as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking (1) Vide Kunwar Lal Singh vs Uma Devi, A.I.R. 1945 Nag. 156; Shankar Deo vs Kalyani, A.I.R. 1948 Nag. 85. (2) Vide Shahzadi Begam vs Alakhnath, 57 All. 983 (F.B.) (3) Shaw Hari vs Sonah Mal Beli Ram, I.L.R. , (4) Vide Sonebai vs Ahmedbhai, , 1165 on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a judgment ' within the meaning clause 15 of the Letters Patent. Couch C.J., as said already, defined 'judgment ' be a decision which determines some right or liability affecting the merits of the controversy between the parties. It is true that according to the learned Chief Justice an adjudication, in order that it might rank as a 'judgment ', need not decide the case on its merits, but it must be the final pronouncement of the court making it, the effect of which is to dispose of or terminate the suit or proceeding. This will be apparent from the following observations made by Couch C.J. in the course of his judgment in the case referred to above : " It is, however, said that this court has already put a wider construction upon the word I judgment ' in clause 15 by entertaining appeals in cases where the plaint has been rejected as insufficient, or as showing that the, claim is barred by limitation,, and also in cases where orders have been made in execution. These however are both within the above definition of a judgment, and it by no means follows that, because we hold the order in the present case not to be appealable, we should be bound to hold the same in the cases referred to. For example, there is an obvious difference between an order for the admission of a plaint and an order for its rejection. The former determines nothing, but is merely first step towards putting the case in a shape for determination. The latter determines finally so far as the court which makes the order is concerned that the suit, as brought. will not lie. The decision, therefore, is a judgment in the proper sense of the term . " It cannot be said, therefore, that according to Sir Richard Couch every judicial pronouncement on a right or liability between the parties is to be regarded 151 1166 as a 'judgment ', for in that case there would be any number of judgments in the course of a suit or proceeding, each one of which could be challenged by way of appeal. The judgment must be the final pronounce ment which puts an end to the proceeding so far as the court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. This view, which is implied in the observations of Sir Richard Couch C.J. quoted above, has been really made the basis of the definition of I judgment ' by Sir Arnold White C.J. in the Full Bench decision of the Madras High Court to which reference has been made (1). According to White C.J. to find out whether an order is a I judgment ' or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit or proceeding, the decision would be a 'judgment ' but not otherwise. As this definition covers not only decisions in suits or actions but 'orders ' in other proceedings as well which start with applications, it may be said that any final order passed on an application in the course of a suit, e.g., granting or refusing a party 's prayer for adjournment of a suit or for examination of a witness, would also come within the definition. This seems to be the reason why the learned Chief Justice qualifies the general proposition laid down above by stating that "an adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of the Letters Patent. " As stated already, it is not our purpose in the present case to frame an exhaustive definition of the word 'judgment ' as used in clause 15 of the Letters Patent. We have indicated what the essential features of a I judgment ' are according to both the Calcutta and the Madras High Courts and all that we need say is that, in our opinion, an order under clause 13 of the Letters Patent does not satisfy the tests of a 'judgment ' as formulated by either of these High Courts. (1) Vide Tuljaram vs Alagappa, , 1167 The question that requires determination in an application under clause 13 of the Letters Patent is, whether a particular suit should be removed from any court which is subject to the superintendence of the High Court and tried and determined by the latter as a court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a ' judgment '. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed. Mr. Chatterjee in the course of his arguments placed considerable reliance upon the pronouncement of the Calcutta High Court in Hadjee Ismail vs Hadjee Mahomed (1), where it was held by Court C.J. and (1) 1168 Pontifex J. that an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a 'judgment ' under clause 15 and could be challenged by way of appeal. This decision was followed by the Bombay High Court in Vaghoji vs Camaji(1); and it is argued by Mr. Chatterjee that there is no difference in principle between an order of that description and an order transferring a suit under clause 13 of the Letters Patent. The contention of Mr. Chatterjee undoubtedly receives support from the judgment of the Madras High Court in Krishna Reddy vs Thanikachala(2),where precisely the same line of reasoning was adopted. In our opinion, this reasoning is not sound and there is an essential difference between an order rescinding or refusing to rescind leave to sue granted under clause 12 of the Letters Patent and one removing a suit from a subordinate court to the High Court under clause 13 of the Letters Patent, and this distinction would be apparent from the observations of Sir Arnold White C.J. in the Madras Full Bench case(3) mentioned above, to which sufficient attention does not appear to have been paid by the learned Judges of the same court who decided the later case. Referring to the decision of the Bombay High Court in Vaghoji vs Camaji(1), White C.J. observed as follows: "As regards the Bombay authorities I may refer to Vaghoji vs Camaji(1), where it was held that an appeal lay from an order dismissing a Judge 's summons to show cause why leave granted under clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file. Here the adjudication asked for, if made, would have disposed of the suit. So also would an order made under an application to revoke a submission to arbitration. I think such an order is appealable." Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded. the (1) I.L.R. (2) I.L.R. 47 Mad. (3) Vide Tuljaram vs Alagappa 1169 suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the other hand, an order is made dismissing the Judge 's summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out(1), that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive, against him so far as the court making the order is concerned. This brings the order within the category of a 'judgment ' as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is a difference between ail order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, and there is no good reason to hold that the principle applicable to one applies to the other also. The result, therefore, is that, in our opinion, the view taken by the High Court is right and this appeal should fail, and is dismissed with costs. Appeal dismissed. Agent for the respondent No. 1 : Sukumnar Ghose for P. C. Dutt.

The respondent imported 2,000 drums of mineral oil and the appellant confiscated 50 drums and imposed a personal penalty. The appeal of the respondent was dismissed by the Central Board of Revenue. The respondent filed a petition under article 226 of the Constitution in the Calcutta High Court. A Full Bench of the High Court held that the High Court had no jurisdiction to issue a writ against the Central Board of Revenue in view of the decision in the case of Saka Venkata Subbha Rao. However, as the Central Board of Revenue had merely dismissed the appeal against the 564 order of the appellant, the High Court further held that it had jurisdiction to pass an order against the appellant. The appellant came to this Court after obtaining a certificate. Held that the appellant had merged into that of the Central Board of Revenue and hence no order could be issued against the appellant. It is only the order of the appellate authority which is operative after the appeal is disposed of. It is immaterial whether the appellate order reverses the original order, modifies it or confirms it. The appellate order of confirmation is as efficacious as an operative order as an appellate order of reversal or modification. As the appellate authority in this case was beyond the territorial jurisdiction of the High Court, it was not open to the High Court to issue a writ to the original authority which was within its jurisdiction. Election Commission, India vs Saka Vankata Subba Rao, , A. Thangal Kunju Mudatiar vs M. Venkitachalam Poiti, ; , Commissioner of Income tax vs M/s. Amritlal Bhogilal & Co. [1959] section C. R. 713 and Madan Gopal Rungta vs Secretary to the Government of Orissa, (1962) (Supp.) 3 S.C.R. followed. Barkatali vs Custodian General of Evacuee Property, A. 1. R. , overruled. Joginder Singh Waryam Singh vs Director, Rural Rehabilitation, Pepsu, Patiala, A. 1. R. 1955 Pepsu 91, Burhanpur National Textile Workers Union vs Labour Appellate Tribunal of India at Bombay, A. I. R. , and Azmat Ullah vs Custodian, Evacuee Property, A.I.R. 1955 All 435, approved. State of U. P. vs Mohammed Nooh, ; , distinguished.

: Criminal Appeal No. 21 of 1973. Appeal by Special Leave from the Judgment and Order dated 3 5 1972 of the Delhi High Court in Criminal Revision No. 450/69. D. Mukherjee, section K. Dholakia and R. C. Bhatia for the Appellants. Respondent in person. The Judgment of the Court was delivered by SARKARIA, J. This appeal by special leave directed against a judgment, dated May 3, 1962, of the Delhi High Court, arises out of these circumstances : M. section Kochar, the respondent herein, filed a complaint in the Court of the Sub Divisional Magistrate, Delhi, alleging that the appellants herein, who are officers of the Customs Department, had committed offences under Sections 120B/166/409, Indian Penal Code. It was stated in the complaint as follows : The complainant was the sole representative in India of various manufacturing concerns in West Germany, and was carrying on business under the style of "House of German Machinery". He imported certain items of machinery from the German firms for displaying them in the International Industries Fair held in New Delhi in November, 1961. In spite of the fact that he had obtained a valid Customs Clearance Permit for the import of these items of machinery, the Customs Authorities prevented him from clearing the goods from the Railway Station. Ultimately, the complainant was able to clear the goods by obtaining the necessary permission from the Government. He was allowed to retain the imported goods with him till the first of June, 1962. The goods were to be re exported from India, thereafter. The respondent applied for extension of the period, but his request was declined. On June 16, 1962, the accused (appellants) raided the premises of the complainant at 30, Pusa Road, New Delhi, and seized some of those imported goods which were meant for display in the International Industries Fair. The appellants also seized certain other goods kept by 114 the complainant at the site of the Fair, itself. Inventories of the goods were prepared by the appellants at the time of their seizure. The goods were then packed in boxes and sealed by the appellants with their own seals which were signed by the complainant as well as the appellants. One copy of the inventories, duly signed by the appellants and the complainant, also was handed over to him. On November 20, 1963, the complainant made an application before the Sub Divisional Magistrate, praying that the goods seized by the appellants be handed over to him on Superdari as they were likely to deteriorate unless kept safely under proper conditions. The Sub Divisional Magistrate, on January 22, 1964, made an order directing that all the goods seized by the appellants be handed over to the complainant on Superdari. The Customs, however, felt aggrieved by this order of the Magistrate and went in revision against it before the Additional Sessions Judge, Delhi, who, on February 7, 1964, passed an order staying delivery of possession. Subsequently, by order dated April 3, 1965, the Additional Sessions Judge dismissed the revision petition and vacated the stay order. In spite of the order of the Magistrate, confirmed by the Additional Sessions Judge, the Customs handed over to the complainant on Superdari only a part of the goods seized, and in respect of the remaining goods, the Customs Authorities went in further revision to the High Court and obtained an interim stay of the order of the Additional Sessions Judge. Subsequently, on August 22, 1966, the High Court made an order directing that all the goods which had been seized by the Customs Authorities from the complainant, including those which had been returned to him on Superdari, should be produced before the Sub Divisional Magistrate, who was seized of a case under Section 5 of the Import and Export (Control) Act and Section 166(81) of the Sea Customs Act, regarding the goods, pending against the complainant. Accordingly, Shri H. L. Sikka, Sub Divisional Magistrate, prepared two inventories of these goods on November 16, 1966 and thereafter. The boxes were opened before Shri Sikka, who got inventories of the goods found therein prepared, and after noting the condition of those goods, he got the same repacked and sealed in proper boxes in the presence of the parties with a seal of the Court. Before resealing, the Magistrate noted down the condition of the four packages which were produced before him by the appellants and which remained in their possession since the seizure (16 6 1962). "It was then found by the Magistrate that the seals of these boxes were tampered. One 115 wooden box was broken and the seal on it was also broken; while the remaining three packages were completely empty but sealed". The goods of Consignment No. 1 of M/s. Gebr. Ruhstrat, concerning the complaint filed by the Assistant Collector of Customs under Section 5 of the Import & Export (Control) Act, and Section 117(81) of the Sea Customs Act, which were also seized by appellant No. 1, who had obtained their delivery from the Railway Station, were not produced before Shri H. L. Sikka, Magistrate, along with the other goods when the inventories were prepared. This gives "a bona fide apprehension to the complainant that the said goods have been criminally misappropriated by the accused." "The accused by their act in illegally tampering and breaking the seals of the consignment seized by them and removing some of these goods and further abusing their positions and seizing some of the personal articles of the complainant under the colour of search warrant issued by the S.D.M. Karol Bagh and illegally holding those goods of the complainant uptil. have committed offences under Sections 120B/166/409 IPC." The Sub Divisional Magistrate before whom the complaint had been filed, examined the complainant under Section 200 and further held a preliminary enquiry under Section 202, Cr. P.C., in the course of which, he examined Shri H. L. Sikka, Magistrate, also. After considering the statements recorded in the preliminary enquiry, and the documents produced by the complainant, the Magistrate found a prima facie case under Sections 120B/409, I.P.C. against the three appellants. He, therefore, directed that the accused (appellants herein) be summoned. On receiving the summons, the appellants appeared before the Magistrate and made an application praying for their immediate discharge, inter alia, on the ground that the Magistrate had no jurisdiction to take cognizance of the complaint in the absence of sanction under Section 197 of the Code of Criminal Procedure, 1898, and under Section 155 of the , for prosecution of the appellants. The Magistrate accepted this objection and held that in the absence of sanction for the prosecution of the present appellants, he had no jurisdiction to take cognizance of the complaint. He purportedly relied on the decision of this Court in Shreekantiah Rammayya Munipalli & Anr. vs State of Bombay(1). In the result, he discharged the accused (appellants, herein). 116 Aggrieved, the complainant filed a revision petition which was dismissed by the Additional Sessions Judge, on December 6, 1968, on the ground that since the shortage of goods was discovered at the time when they were produced before the Customs House, and there was absolutely nothing to show that the goods in question remained in the personal custody of the appellants, "it was difficult to hold that the shortage, if any, was due to the act of the accused. " The complainant went in further revision to the High Court, which was heard and allowed by a learned Judge by his judgment now under appeal before us. After an elaborate discussion, the learned Judge has held that no sanction was required for the prosecution of the accused appellants for an offence under Sections 120B/409, Indian Penal Code, because "they were certainly not acting in the discharge of their official duties, when they misappropriated these goods". The first contention of Mr. Mukerjee, learned Counsel for the appellants is that the complainant has falsely alleged in the complaint that when the Sub Divisional Magistrate, Shri Sikka, in compliance with the order of the High Court, inspected the goods and noted the condition thereof, "it was found that the seals of four boxes were broken, while the remaining three packages were completely empty but sealed". It is maintained that the inventory itself, prepared by Shri Sikka, falsifies this allegation. It is further pointed out that in the complaint it is not alleged with particularity as to what goods disappeared or were removed, nor that the disappearance of some of the goods, if any, occurred after their seizure and before their deposit in the Customs House by the appellants, and that the allegation made by the complainant during arguments before the High Court, to the effect, that the goods in question were misappropriated sometime after seizure and before their deposit in the Customs House, was not based on any facts or circumstances appearing in the statements of the complainant and Shri Sikka recorded during the preliminary enquiry. Learned counsel also repeatedly urged that the allegations regarding the commission of the offence of criminal breach of trust by the appellants, were false and groundless. For this purpose, it is stressed, the Court should not confine itself to the allegations in the complaint but also consider all the evidential material on the record including that brought on the record by the appellants. In support of the contention that the question of sanction can be raised from stage to stage, Mr. Mukherjee relied on certain observations of this Court in Matajog Dobey vs H. C. Bari(1). We have no quarrel with the proposition that the question of sanction under Section 197, Cr. P.C. can be raised and considered at any 117 stage of the proceedings. We will further concede that in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. Now, in paragraph 20 of the complaint, it was clearly alleged that the Sub Divisional Magistrate, Shri H. L. Sikka found that the seals of four boxes had been tampered with and one of the boxes broken, while the remaining three packages "were completely empty but sealed". Mr. Mukherjee has not read out or referred to any portion of the statement of Shri H. L. Sikka recorded under Section 202, Cr.P.C., to show that the same contradicts or falsifies the allegations in paragraphs 19, 20 and 21 of the complaint. Indeed, no copy of the statements of the complainant and Shri Sikka recorded in proceedings preliminary to the issue of process, has been furnished for our perusal. It is true that the precise time and manner or the misappropriation and the detailed particulars of the items of goods alleged to have been misappropriated, are not given in the complaint. But it seems that some foundation for the allegation that the goods in question had been misappropriated by the appellants sometime after their seizure and before their deposit in the Customs House, had been laid during the preliminary enquiry made by the Magistrate. This allegation was made not only before the High Court, but has been reiterated by the complainant in paragraph 12 of his counter affidavit that he had filed in this Court in opposition to the special leave petition of the appellants. For this averment, he relied on a certain letter/notice dated January 30, 1963 addressed to him by the Customs Authority. Thus, the material brought on the record upto the stage when the question of want of sanction was raised by the appellants, contained a clear allegation against the appellants about the commission of an offence under Section 409, I.P.C. To elaborate, it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged. For these reasons, we overrule the first contention canvassed on behalf of the appellants. 118 The second contention advanced by Mr. Mukherjee is in the alternative. It is submitted that even if for the sake of argument, it is assumed that some of the goods were removed and set apart by the appellants after seizure, then also, the seizure and the removal being integrally connected with each other the alleged act constituting the offence of criminal misappropriation/criminal breach of trust could but reasonably be viewed as an act which includes dereliction of duty done or purporting to be done in the discharge of their official duty by the appellants. It is argued that section 197, Cr. P. C. cannot be construed too narrowly, in the sense that since the commission of offence is never a part of the official duty of a public servant, an act constituting an offence can never be said to have been done or purportedly done in the discharge of official duty. Such a narrow construction, it is submitted, will render the Section entirely otiose. For law on the point, the learned counsel referred to several decisions of this Court. He took us through the relevant passages of the judgment in Matajog 's case (supra), and strongly relied on the ratio of Shree kantiah Rammayya 's case (ibid) and Amrik Singh vs The State of Pepsu (1) The words "any offence alleged to have been committed 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 interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course 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 not every offence committed 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 constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami J. in Baijnath vs State of M.P.(2) "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 contemplated by Section 197 of the Criminal Procedure Code will be attracted. " In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must 119 be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar J. of the Federal Court in Hori Ram vs Emperor, (1) is generally applied with advantage. After referring with approval to those observations of Varadachariar J., Lord Simonds in H.H.B. Gill vs The King.(2) tersely reiterated that the "test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office." Speaking for the Constitution Bench of this Court, Chandrasekhar. Aiyer J., restated the same principle, thus: ". .in the matter of grant of sanction under Section 197, the offence alleged to have been committed 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 connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty". (Emphasis supplied) Let us now apply this broad test to the facts of the case as alleged and sought to be proved by the complainant. The allegation against the appellants is about the commission of offences under Sections 409/120B, Indian Penal Code. To be more precise, the act complained of is dishonest misappropriation or conversion of the goods by the appellants, which they had seized and as such, were holding in trust to be dealt with in accordance with law. There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or dominion over them, was an act committed by them while acting in the discharge of their official duty. But the act complained of is subsequent dishonest misappropriation or conversion of those goods by the appellants, which is the second necessary element of the offence of criminal breach of trust under Section 409, Indian Penal Code. Could it be said, that the act of dishonest misappropriation or conversion complained of bore such an integral relation to the duty of the appellants 120 that they could genuinely claim that they committed it in the course of the performance of their official duty ? In the facts of the instant case, the answer cannot but be in the negative. There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it. Nor could the alleged act of misappropriation or conversion, be reasonably said to be imbued with the colour of the office held by the appellants. As pointed out by Varadachariar J. in Hori Ram (supra), generally, in a case under Section 409, Indian Penal Code, "the official capacity is material only in connection with the 'entrustment ' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of. " This, however, should not be understood as an invariable proposition of law. The question, as already explained, depends on the facts of each case. Cases are conceivable where on their special facts it can be said that the act of criminal misappropriation or conversion complained of is inseparably intertwined with the performance of the official duty of the accused and therefore, sanction under Section 197(1) of the Code of Criminal Procedure for prosecution of the accused for an offence under Section 409, Indian Penal Code was necessary. Shreekantiah Rammayya (supra) was a case of that kind. The act complained of against the second accused in that case was, dishonest disposal of the goods. The peculiarity of the act was that from its very nature, in the circumstances of that case, it could not have been done lawfully or otherwise by the accused save by an act done or purporting to be done in an official capacity. In other words, the very charge, was the dishonest doing of an official act by the accused. Whether the act was dishonest or lawful, it remained an official act because the accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. It was in view of these special facts of the case, it was held that the offence under Section 409, Indian Penal Code was committed or purported to be committed by the accused in the discharge of his official duty, and, as such, sanction under Section 197(1) Cr. P.C. was a prerequisite for his prosecution. The facts of the case before us are entirely different. The ratio of Shreekantiah Rammayya has therefore, no application to the facts of the case before us. In Amrik Singh vs The State of Pepsu,(1) it was laid down that whether sanction is necessary to prosecute a public servant on a charge 121 of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary. Amrik Singh 's case also stands on its own facts, which were materially different from those of the present case. The correctness of that decision was doubted in Baijnath vs State of Madhya Pradesh (supra), and its authority appears to have been badly shaken. In any case, its ratio must be confined to its own peculiar facts. There are several decisions of this Court, such as, Om Parkash Gupta vs State of Uttar Pradesh,(1) Baijnath vs State of Madhya Pradesh (supra), Marihar Prasad vs State of Bihar,(2) wherein it has been held that sanction under Section 197, Criminal Procedure Code for prosecution for an offence under Section 409, Indian Penal Code was not necessary. In Om Parkash Gupta 's case (ibid) it was held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant. Since this rule is not absolute, the question being dependent on the facts of each case, we do not think it necessary to burden this judgment with a survey of all those cases. In the light of all that has been said above, we are of opinion that on the facts of the present case, sanction of the appropriate Government was not necessary for the prosecution of the appellants for an offence under Sections 409/120 B, Indian Penal Code, because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servants. At the most, the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act. In the result, the appeal fails and is dismissed. N.K.A. Appeal dismissed.

In a suit for recovery of money on the basis of a mortgage, a consent decree was passed. When the judgment debtors failed to pay the amount the mortgaged properties were ordered to be sold. The decree holder assigned his interest under the decree in favour of the respondent and this was approved by the Court. A part payment was made to the decree holder. On the death of one of the judgment debtors, his heirs and legal representatives (appellants in this appeal) were substituted. On June 17, 1953 a consent order was passed by the Court on the basis of the terms of settlement arrived at between the parties. According to the will left by one of the judgment debtors his daughter was the universal legatee and his son in law was the sole executor. When the decree holder sought execution of the decree a Single Judge of the High Court dismissed the application on the grounds (1) that the terms of settlement between the parties recorded on 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; (2) that the fact of the death of one of the judgment debtors was not recorded and his heirs were not substituted and (3) execution was barred under section 48 of the Code of Civil Procedure. On appal, a Division Bench of the High Court reversed the order of the Single Judge. Dismissing the appeal, ^ HELD: 1. There was no bar of limitation in the execution instituted in 1965. At no point of time the mortgage decree had been fully satisfied. It is not a case in which the execution was barred either under section 48 CPC or article 183 of the Limitation Act, 1908. Execution was not barred under article 136 of the . [159D] 2. There is no force in the contention that it was already barred when the 1963 Act came into force. All through steps had been taken by the decree holder to enforce the decree. When the order of sale of the mortgaged properties was passed in 1929 some payments were made and finally accounts were settled in 1934. Thereafter the mode of execution proceeded by appointment of a receiver. Some money was paid in 1939. In 1945 the heirs and legal representatives of one of the deceased judgment debtors were substituted. Appellant no 1 was allowed to take steps for the satisfaction of the decree; but nothing was done. A settlement was again arrived at in 1953 for satisfaction of the decree but on the judgment debtor 's failure to comply with the terms of the settlement the present proceedings were started well within 12 years. [159E H] 157 3. The daughter of the second judgment debtor was competent to represent the estate of her father. Even if her husband who was the sole executor of the will was not substituted, execution was not defective. [160B] The Andhra Bank Ltd. vs R. Srinivasan and Others [1962] 3 S.C.R. referred to. 4. The settlement of 17th June, 1953 was not an altogether renovation of the old decree. All that was done was that the amount due was quantified and the mode of satisfaction was prescribed giving opportunity to the judgement debtors to satisfy the decree by conveying one of the two mortgaged houses. The judgment debtors did nothing. Though the terms of settlement were silent with regard to what was to happen on failure to satisfy the decree, it is legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. The order of 17th June, 1953 passed by the Court had not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree. [160C F]

Appeal No. 205 of 1956. Appeal from the judgment and decree dated May 26, 1954, of the Calcutta High Court in Appeal from Original Decree No. 127 of 1950. 580 D. N. Mukherjee, for the appellants. N. C. Chatterjee and R. B. Biswas, for respondents Nos. 1(a) and 2. 1961. January 25. The Judgment of the Court was delivered by KAPUR, J. This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta. The appellant was the defendant in the suit out of which this appeal has arisen and respondent No. 1 was the plaintiff, and the second respondent was a proforma defendant. The facts of this case are these: On February 4, 1941, the respondent sold the property in dispute to the appellant for a sum of Rs. 10,000. On February 10, 1941, there was an agreement for reconveyance within a period up to February 10, 1943, for a sum of Rs. 10,001. The relevant clause of this agreement was the third clause which was as follows : " Clause 3. The purchase shall be completed by the purchasers within two years, i.e., to say on or before the 10th day of February, 1943, time being the essence of the contract. If the purchasers shall on or before the 10th day of February, 1943, pay to the vendor a sum of Rs. 10,001 the vendor shall at the cost of the purchasers execute such conveyance as may be necessary for conveying and transferring its right, title and interest in the said property free from encumbrances, if any, created by it. " On November 26, 1942, the solicitor for respondent No. 1 wrote a letter to the appellant stating that that respondent was ready and willing to have the purchase completed as early as possible on payment of Rs. 10,001. Along with that letter a draft conveyance was sent for approval but all this was subject to the result of a search as to the encumbrances, if any, created by the appellant. On November 30, 1942, the solicitors for the appellant company wrote back saying that immediate arrangements should be made for giving inspection of the agreement of sale on which the respondents were relying as the appellant was unable to trace the copy of the said agreement from its record. 581 Again on December 11, 1942, the respondent 's solicitor sent a letter stating : " My client is very eager to complete the purchase and the full consideration money therefore is lying idle in his hands awaiting, the return of the relative draft conveyance as approved by you on your clients ' behalf. " To this the reply of the appellant 's solicitors dated December 18, 1942, was: " Our clients deny that there was any concluded or valid agreement for sale with your client or with any other person in respect of the above premises." On June 10, 1943, respondent No. 1 filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage. The trial court dismissed the suit oil May 16, 1950, holding that the transaction on the basis of which the suit was brought was not a mortgage but was out and out sale with an agreement for repurchase and as the vendor had not paid the money " punctually according to the terms of the contract, the right to repurchase was lost and could not be specifically enforced ", and the court had no power 'to afford any relief against forfeiture of this breach. The plaintiff respondent took an appeal to the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the consideration does riot bar a suit for specific performance because after the repudiation of the contract by the appellant, the tender would have been a useless formality. The appeal was therefore allowed and the suit for specific performance decreed. It is against this judgment and decree that the appellant has come in appeal to this Court. The correspondence which has been proved in this case shows that when the respondent 's solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute. This was a complete repudiation of the contract to reconvey which the 582 appellant had agreed to by cl. 3 of the agreement which has been set out above. As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for its enforcement. But it was argued on behalf of the appellant that the respondent did not tender the price, i.e., Rs. 10,001 nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance. In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally, refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunter vs Daniel (1) is applicable to cases of this kind. In that case Wigram, V. C., stated the position as follows: " The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money. " Lord Buckmaster in Chalikani Venkatarayanim vs Zamindar of Tuni (2) accepted this statement of the law and observed: " Their Lordships think that that is a true and accurate expression of the law, and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money. " This principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted to an unequivocal refusal to carry out its part of the contract which in our opinion it was. It was next contended that the offer made by a solicitor is not a proper offer in law and therefore when (1) ; ; (2) (1922) 50 I.A. 41, 47. 583 the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so. We are unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim vs Adam Osman (1), in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promiser through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the promisor is able and willing to perform his promise. Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender. In our opinion the High Court rightly held that the respondents were entitled to a decree for specific per formance and we therefore dismiss this appeal with costs. Appeal dismissed.

The assessee, resident in British India, had some money in deposit with a concern in Bhavnagar, outside British India. On April 7, 1947, he transferred part of it to a concern in Bombay. He was assessed to tax on this amount under section 4(i)(b)(iii) of the Income tax Act. The assessee contended that to attract the application of section 4(i)(b)(iii) the receipt in the taxable territory must be the first receipt of income. Held, that the assessee was liable to tax on this amount. Per Gajendragadkar and Wanchoo, JJ. Where a person, resident in the taxable territories, has already received, outside the taxable territories, any income etc. accruing or arising to him outside the taxable territories before the previous year brings that income into or receives that income in the taxable territories he would be chargeable to income tax thereon. Though for the purposes of cl. (a) of section 4 the receipt must be the first receipt of income in the taxable territories, for the purposes of cl. (b)(iii) the receiving in the taxable territories need not be the first receipt. Keshav Mills Ltd. vs Commissioner of Income tax ; , referred to. Per Sarkar, J. The income could not be said to have been "received" in the taxable territory within the meaning of cl. (b)(iii) as income could be received only once. But it is clear that the assessee " brought into " Bombay that income. It was immaterial in what shape he received the income in Bhavnagar and in what shape he brought it in Bombay. Keshav Mills Ltd. vs Commissioner of Income tax ; , Board of Revenue vs Ripon Press Mad. 706 and Sundar Das vs Collector of Gujrat (1922) I.L.R. , applied. Gresham Life Assurance Society Ltd. vs Bishop [1902] A.C. 287 and Tennant vs Smith ; , referred to.

ivil Appeal No. 5807 of 1983. From the Judgment and Order dated 10.12.1982 of the Delhi High Court in L.P.A. No. 28 of 1982. Soli J. Sorabjee, Harish N. Salve, P.H. Parekh and Dr. D.Y. Chandrachud for the Appellants. Govind Das, Girish Chandra and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by DUTT, J. This appeal by special leave involves an inter pretation of the proviso to section 71 of the Gold Control Act. One Kesharimal Porwal, who had two flourishing business es a bidi factory at Kamptee and a gold and silver shop at Mandsaur died on October 7, 1952 leaving behind him surviv ing a widow Ratanbai, a daughter Shantabai and a son Nem Kumar. Both Shantabai and Nem Kumar had each a son at the time of death of Kesharimal. After the death of Kesharimal, Nem Kumar had four more sons. 1120 The said Kesharimal also left a will dated February 10, 1952 whereby he bequeathed certain gold and silver to his grandsons. It was provided in the will that each grandson would receive 500 tolas of gold at the time of marriage and the remaining gold would be equally divided among them. It may be stated here that at no stage the genuineness and validity of the will was questioned, nor have they been challenged before us. On July, 9, 1968 the officers of the Central Excise, Nagpur, searched the residential premises of Nem Kumar and seized 10 slabs and 9 pieces of gold and 230 gold coins, weighing about 42,404 grams having at that time a market value of Rs.7,63,000, which were kept in a cupboard inside a big Godrej iron safe. It is not disputed that the seized gold was primary gold. On July 10, 1968, the officials of the Central Excise separately recorded the statements of Ratanbai and Nem Kumar. It was stated by Ratanbai that the seized gold was the 'self earned property ' of her late husband, and that the same had been kept in the iron safe about 8/9 years ago. She admitted that the keys of the shelf had all along remained in her possession. Nem Kumar in his statement denied any knowledge about the gold. He said that he had come to know of the existence of the gold for the first time when it was found out during the search. A declaration in respect of seized gold was filed by Ratanbai to the Central Excise, Nagpur, on July 29, 1968. The Collector of Central Excise, Nagpur, served two separate notices on Ratanbai and Nem Kumar calling upon them to show cause why the seized gold should not be confiscated and a penalty imposed for the violation of the provision of paragraph 9(1)(i) of the Gold Control Ordinance, 1968. Both Ratanbai and Nem Kumar showed cause against the proposed confiscation and penalty. The Collector came to the findings that Ratanbai had full knowledge of the gold and was in conscious possession of it for at least 8 9 years. So far as Nem Kumar was con cerned, the Collector held that it was difficult to sustain the charge of possession, custody and control of the gold against him in view of the vagueness of the evidence and lacunae in investigation. Accordingly, by his order dated May 15, 1970, the Collector came to the conclusion that it was only Ratanbai who had violated the provision of para graph 9(1)(i) of the Gold Control Ordinance, 1968 and di rected confiscation of the gold and imposition of penalty of Rs.38,000 on Ratanbai under paragraph 75 of the 1121 Gold Control Ordinance, 1968. Nem Kumar was acquitted of the charges levelled against him. The Ordinance was replaced by the GoAd Control Act, 1968. Being aggrieved by the said order of the Collector. Ratanbai preferred an appeal against the same to the Admin istrator under the Gold Control Act, 1968. The Administra tor, however, dismissed the appeal by his order dated Febru ary 23, 1972. Ratanbai filed an application for revision before the Central Government challenging the propriety of the order of the Administrator. The appellant No. 1 Sushil Kumar, son of Nem Kumar, who had by now attained majority, also filed a revisional application before the Central Government. Both the revisional applications were dismissed by the Central Government. Thereafter, the appellants Nos. 1 to 5 and Surendra Kumar, since deceased, son of Shantabai, filed a writ peti tion in the Delhi High Court. The learned Single Judge of the Delhi High Court, on an interpretation of section 71(1) of the Gold Control Act including the proviso thereto, took the view that the seized gold could not be ordered to be confiscated and no penalty could be imposed on Ratanbai. In that view of the matter, the learned Judge quashed the order of confiscation and penalty and directed the return of gold to the petitioners. The respondents could not accept the decision of the learned Judge and accordingly, preferred an appeal to the Division Bench of the High Court. The Division Bench did not agree with the interpretation of the learned Judge on sec tion 71(1) of the Gold Control Act including the proviso thereto. We shall have occasion to refer to the interpreta tion put forward on section 71(1) by the Division Bench of the High Court and it is sufficient to state here that the Division Bench set aside the judgment of the learned Single Judge and allowed the appeal of the respondents. Hence this appeal by special leave by the sons of Nem Kumar, Shantabai and Nem Kumar himself. Under rule 126 I of the Defence of India Rules 1962, every person other than a dealer was required to make a declaration as to the quantity, description and other pre scribed particulars of gold (other than ornaments) owned by him within thirty days from January 9, 1963, the date on which the Defence of India (Amendment) Rules, 1963 came into force. Rule 126 H was amended by the Defence of 1122 India (Fourth Amendment) Rules, 1966. Sub rules (1 A) to (I G) were added to rule 126 H. Sub rule (1 A) provided as follows: "(1 A) No person (other than a dealer or refiner licensed under this Part) shall, after the expiry of a period of six months from the commencement of the Defence of India (Fourth Amendment) Rules, 1966, either own or have in his possession, custody or control any primary gold. " Clause (i) of sub rule (1 B), which is also important for our purpose, reads as follows: "(1 B) Every person who owns or has in his possession, custody or control at the com mencement of the Defence of India (Fourth Amendment) Rules, 1966, any primary gold which has been included in a declaration or further declaration made under rule 126 1 (as in force immediately before the commencement of the said Rules) or in respect of which no such declaration is required to be made under that rule, shall dispose of such primary gold in the following manner, namely: (i) If he, being the owner, is in pos session, custody or control thereof at such commencement, he shall, within a period of six months from such commencement, either sell such primary gold to a refiner or dealer licensed under this Part or deliver the same to a dealer or goldsmith licensed or certi fied, as the case may be, under this Part for conversion thereof into ornaments ;" The ground that weighed with the Central Excise Authori ties in confiscating the gold was that the acquisition, possession, custody or control of primary gold in question by Ratanbai became illegal and contraband and liable to confiscation, as she did not file any declaration required under rule 126 I of the Defence of India Rules, 1962 within thirty days from January 9, 1963 nor did she dispose of the gold by sale nor convert the same into ornaments in contra vention of clause (i) of sub rule (1 B), but possessed the same in violation of sub rule (1 A) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966. But, after the amendment of section 71(1) of the Gold Control Act, 1968 by the addition of a proviso, the appellants have placed reliance upon the proviso. 1123 Initially section 71(1) was as follows: "71(1) Any gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened, shall be liable to confiscation." This Court in Badri Prasad vs Collector of Central Excise, [1971] Supp. SCR 254 held that section 71 placed an unreasonable restriction on the right of a person to ac quire, hold and dispose of gold articles or gold ornaments. In that view of the matter, this Court struck down section 71 as unconstitutional. Thereafter, by Gold (Control) Amend ment Act, 197 1, a new section 71(1) was enacted with retro spective effect from 1 9 1968. Sub section (1) of section 71, with which we are concerned, is as follows: "Sec. 71(1) Any gold in respect of which any provision of this Act or any rule or order made thereunder has been, or is being, or is attempted to be, contravened, together with any package, covering or receptacle in which such gold is found, shall be liable to confis cation: Provided that where it is estab lished to the satisfaction of the officer adjudging the confiscation that such gold or other thing belongs to a person other than the person who has, by any act or omission, ren dered it liable to confiscation, and such act or omission was without the knowledge or connivance of the person to whom it belongs, it shall not be ordered to be confiscated but such other action, as is authorized by this Act, may be taken against the person who has, by such act or omission, rendered it liable to confiscation. " It is contended on behalf of the appellants that Ratan bai by her omission to dispose of the gold by sale or to convert the same into ornaments in accordance with the provision of rule 126 H, as amended by the Defence of India (Fourth Amendment) Rules, 1966, rendered the gold liable to confiscation without the knowledge or connivance of the owners thereof, namely, the grandsons of Kesharimal Porwal, the same cannot be confiscated in view of the proviso to section 71(1) of the Gold Control Act. The learned Single Judge of the High Court upheld the contention and directed the release of the gold in favour of the appellants. 1124 On the other hand, the Division Bench of the High Court took a contrary view. According to the learned Judges of the Division Bench, the proviso will apply only to such gold the possession of which can be retained. As the gold in question was not converted or sold within the grace period of six months from March 1, 1967, such gold became contraband and the possession thereof by Ratanbai was illegal. Moreover, under section 8(1) of the Gold Control Act, 1968, no person can own, acquire or possess primary gold. In the view of the Division Bench, confiscation of primary gold is mandatory under section 8(1) of the Gold Control Act and earlier under the Defence of India Rules. According to the Division Bench, the proviso cannot be so construed as to permit primary gold to be retained by prohibiting an order of confiscation from being passed. The Division Bench held that possession of primary gold could never be legalised. The principal question that falls for our consideration is whether the proviso to section 71(1) also relates to primary gold. It is not disputed that the power of confisca tion of gold including primary gold is conferred by sub section (1) of section 71. The expression "any gold" refers to all kinds of gold including primary gold. Indeed, section 2(j) defines "gold" as meaning gold, including its alloy (whether virgin, melted or re melted, wrought or unwrought) in any shape or form, of a purity of not less than nine carats and includes primary gold, article and ornament. We may now consider the contention made on behalf of the respondents that the proviso does not relate to primary gold. The reason for this contention is that as, in view of section 8(1) of the Gold Control Act, nobody can retain possession of primary gold, the proviso cannot relate to primary gold, for, if the conditions mentioned in the provi so are fulfilled, the gold shall not be ordered to be con fiscated. In other words, the gold would be allowed to be retained by the owner thereof. It is submitted that such interpretation would render section 8(1) nugatory. Section 8(1) is in the following terms: "Sec. Save as otherwise provided in this Act, no person shall (i) own or have in his possession, custody or control, or (ii) acquire or agree to acquire the ownership, possession, custody or control of, or 1125 (iii) buy, accept or otherwise receive or agree to buy, accept or otherwise receive, any primary gold. " There can be no doubt that in view of section 8(1), no person can own, acquire or retain possession, custody or control or primary gold. It has already been noticed that under clause (i) of sub rule (1 B) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966, it was enjoined that the owner in possession, custody or control of primary gold was bound to either sell such primary gold to a licensed refiner or dealer or deliver the same to a licensed or certified dealer or goldsmith for conversion thereof into ornaments within a period of six months from September 1, 1967, the date of commencement of the said Rules. Sub rule (1 A) of rule 126 H prohibits possession, custody or control of any primary gold after the expiry of the said period of six months. In the instant case, it was Ratanbai who had failed to either sell or convert the primary gold in question within the grace period of six months without the knowledge and connivance of owners thereof, that is, the grandsons of Kesharimal Porwal. If the contention of the respondents is accepted, it will mean that the owner of primary gold has to lose the same on account of default committed by somebody who is not the owner. It was perhaps one of the considerations that weighed with this Court in Badri Prasad 's case (supra), namely, that the pawnee who is the owner has to suffer confiscation or to pay a fine in lieu of confiscation not exceeding twice the value as provided in section 73 of the Gold Control Act before the same was amended, not for any fault of his, but for the omission of the pawn broker to file declarations or monthly statements and this Court struck down the unamended provision of section 71 as uncon stitutional. Therefore, in interpreting the provision of section 71(1) including the proviso thereto, we shall have to keep in view the above decision of this Court. It is with a view to removing the unconstitutionality of the unamended provision of section 71 that section 71(1) has been re enacted with a proviso added to sub section (1) of section 71. In that view of the matter, it is difficult to hold that the proviso does not relate to primary gold but to other kinds of gold. It is also difficult to accept the contention that while the substantive provision of sub section (1) of section 71 relates to all kinds of gold 1126 including primary gold, the proviso which is a part of the substantive provision, will not include within its scope and ambit primary gold. It is true that under section 8(1) of.the Gold Control Act, retention of possession of primary gold is prohibited. But because of that, it will not be reasonable and justified to ignore the plain meaning of the proviso and to interpret it in such a manner as to render it inconsistent with the substantive part of sub section (1) of section 71. The proviso lays down the circumstances under which any gold which is liable to confiscation will not be confiscat ed. Confiscation deprives the owner of his property to his loss and detriment. Where primary gold is not to be confis cated in view of the proviso to section 71(1), the owner thereof gets it back, but it does not mean that he will be entitled to retain possession of such primary gold which is forbidden by section 8(1) of the Gold Control Act. In such a case, the owner has to sell the primary gold to a licensed refiner or dealer or deliver the same to a dealer or gold smith, licensed or certified, as the case may be, that is to say, in the same manner and following the same procedure as was laid down in sub rule (1 B) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966 and, in our opinion, so interpreted there will be no conflict between the proviso to section 71(1) and the provision of section 8(1) of the Gold Control Act. Indeed, the Administrator under the Gold Control Act has issued an order No. 11/76 F. 13 1/41/75 GC.II dated 30 7 1976 whereby it is directed, inter alia, that where gold is seized and confiscated and thereafter released and if such release relates to primary gold, it is further directed: (a) such primary gold shall be sold to a licensed dealer or got converted into ornaments; (b) the person concerned shall, within one month of taking back into his possession, custody or control of such primary gold, furnish to the concerned Gold Control Officer a certificate from the licensed dealer that such primary gold has been sold to him and where such primary gold has been converted into ornaments, a certificate from the licensed dealer or the certified goldsmith, as the case may be, that such primary gold has been so converted. Thus, there will be no difficulty in not confiscating the primary gold under the proviso, for after such release the owner of primary gold will not be entitled to retain possession of the same, but will have to dispose it of or convert the same into ornaments. We do not, therefore, agree with the view expressed by the Division Bench of the High Court that the proviso to section 71(1) of the Gold Control Act does not relate to primary gold. The Division Bench was greatly influenced by the fact that in view of section 8(1) of the Gold Control Act, the possession of primary gold cannot be retained by any person. But, as 1127 already discussed above, such an interpretation is not possible to be made of the proviso to section 71(1). The interpretation that we have put on section 71(1) will not run counter to the provision of section 8(1), in view of the fact that although the primary gold is not confiscated, it will not be allowed to be possessed by the owner, but has to be disposed of by him or converted into ornaments in the manner as mentioned above or as directed by the Administra tor by his said order dated 30 7 1976. For the reasons aforesaid, we set aside the order of the Division Bench and modify the order of the learned Single Judge of the High Court directing that the seized primary gold shall be released in favour of the appellants with a further direction that the appellants shall either sell the same to a licensed dealer or deliver possession of the same to a licensed dealer or a certified goldsmith, as may be specified by the Administrator, immediately on the release of such primary gold. The appeal is allowed, but in view of the peculiar facts and circumstances of the case, there will be no order as to costs. S.L. Appeal allowed.

One Kesharimal Porwal, who had one of his businesses as gold and silver shop, died on October 7, 1952 leaving behind surviving a widow Ratanbai, a daughter Shantabai and a son Nem Kumar. Kesharimal left a will whereby he bequeathed gold and silver.to his grandsons sons of Shantabai and Nem Kumar providing that each grandson would receive 500 tolas of gold at the time of marriage and the remaining gold would be equally divided among them. The genuineness and validity of the will were not challenged at any stage. On July 9, 1968, the officers of the Central Excise, Nagpur, searched the residential premises of Nem Kumar and seized 10 slabs and 9 pieces of gold and 230 gold coins having at that time a market value of Rs.7,63,000. The gold seized was primary gold. The officials of the Central Excise separately recorded the statements of Ratanbai and Nem Kumar. Ratanbai stated that the seized gold was the 'self earned property ' of her late husband, and had been kept in the iron safe about 8/9 years ago, and that keys of the shelf had all along remained in her possession. Nem Kumar in his statement denied any knowledge of the gold and said that he had come to know of the existence of the gold for the first time during the search. A declaration in respect of the seized gold was filed by Ratanbai with the Central Excise. The Collector of Central Excise served separate notices on Ratanbai and Nem Kumar, calling upon them to show cause why the seized gold should not be confiscated and a penalty imposed for violation of the provision of paragraph 9(1)(i) of the Gold Control Ordinance, 1968. The notices were re plied by both. The Collector came to the finding that Ratan bai had full knowledge of the gold and was in conscious possession of it for at least 8/9 years. As for Nem Kumar, the Collector held that it was difficult to sustain the charge of possession and custody of the gold against him. Accordingly, the Collector, held that only Ratanbai had violated the provision of paragraph 9(1)(i) of the 1117 Gold Control Ordinance, 1968, and directed the confiscation of the gold and imposition of a penalty of Rs.38,000 on Ratanbai under paragraph 75 of the Gold Control Ordinance, 1968, which was replaced by the Gold Control Act, 1968. Nem Kumar was acquitted. An appeal preferred by Ratanbai against the order of the Collector was dismissed by the Administrator under the Gold Control Act, Ratanbai then filed an application for revision before the Central Government, challenging the order of the Administrator. The appellant No. 1, Sushil Kumar son of Nem Kumar, who had by then attained majority, also filed a revisional application before the Central Government. Both the revisional applications were dismissed. Thereupon, the appellants Nos. 1 to 5 and Surendra Kumar since deceased, son of Shantabai, filed a writ petition in the High Court. The High Court (Single Judge) quashed the order of confisca tion and penalty and directed the return of the gold to the petitioners. The respondents preferred an appeal to the Division Bench of the High Court. The Division Bench did not agree with the interpretation of the learned Single Judge on section 71(1) of the Gold Control Act, including the proviso thereto, and set aside the judgment of the Single Judge. Aggrieved by the decision of the High Court, the appellants moved this court for relief by special leave. Allowing the appeal, the Court, HELD: The ground that weighed with the Central Excise Authorities in confiscating the gold was that the acquisi tion, possession, custody or control of primary gold in question by Ratanbai became illegal and liable to confisca tion, as she had not filed any declaration required under rule 126 1 of the Defence of India Rules, 1962, nor had she disposed of the gold by sale or converted the gold into ornaments in contravention of clause (i) of sub rule (I B), but had possessed the same in violation of sub rule (I A) of Rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966. But, after the amendment of section 71(1) of the Gold Control Act, 1968, by addition of a proviso, the appellants placed reliance upon the proviso. It was contended on behalf of the appellants that Ratanbai by her omission to dispose of the gold by sale or to convert the same into ornaments in accordance with the provision of rule 126 H, as amended by the Defence of India (Fourth Amendment) Rules, 1966 rendered the gold liable to confiscation without the knowledge or connivance of the owners of the gold, namely, the grandsons of Kesharimal Porwal, but the same could not be 1118 confiscated in view of the proviso to section 71(1) of the Gold Control Act. The Learned Single Judge of the High Court had upheld the contention and directed the release of the gold in favour of the appellants. [1122F H; 1123G H] The principal question that fell for the consideration of this Court was whether the proviso to section 71(1) also related to primary gold. [1124D] Power of confiscation of gold including primary gold is conferred by sub section (1) of section 71. The expression "any gold" refers to all kinds of gold, including primary gold. In view of section 8(1) of the Gold Control Act, no person can acquire or retain possession, custody or control of primary gold. Under clause (i) of sub rule (I B) of rule 126 H of the Defence of India (Fourth Amendment) Rules, 1966, the owner in possession, custody or control of primary gold is bound to either sell such primary gold to a licensed refiner or dealer or deliver the same to a licensed or certified dealer or goldsmith for conversion thereof into ornaments within a period of six months from September 1, 1967, the date of the Commencement of the said Rules, Sub rule (1 A) of Rule 126 H prohibits the possession, custody or control of any primary gold after the expiry of the said period of six months. [1124D E; 1125B C] In this case, it was Ratanbai who had failed to either sell or convert the primary gold within the grace period of six months without the knowledge and connivance of the owners thereof, that is, the grandsons of Kesharimal Porwal. If the contention of the respondents was accepted, it would mean that the owner of the primary gold had to lose the same on account of default committed by somebody who was not the owner. It was also difficult to accept the contention that while the substantive provision of sub section (1) of sec tion 71 related to all kinds of gold, including primary gold, the proviso, a part of the substantive provision, would not include primary gold within its scope and ambit. The proviso lays down the circumstances under which any gold which is liable to confiscation will not be confiscated. Where primary gold is not to be confiscated in view of the proviso to section 71(1), the owner thereof gets it back, but it does not mean that he will be entitled to retain possession of such primary gold which is forbidden by sec tion 8(1) of the Gold Control Act. Thus there would be no difficulty in not confiscating the primary gold under the proviso, for after such release the owner of the primary gold will have to dispose it of or convert the same into ornaments. The Court did not agree with the view expressed by the Division Bench of the High Court that the proviso to section 71(1) of the 1119 Gold Control Act did not relate to primary Gold. The inter pretation put on section 71 (1) by the Court would not run counter to the provision of section 8(1) as the primary gold, not confiscated, would not be allowed to be possessed by the owner but had to be disposed of by him or converted into ornaments in the manner mentioned above or as directed by order date 30.7.76 of the Administrator under the Gold Control Act. [1125D G; 1127A B] The Court set aside the order of the Division Bench and modified the order of the Single Judge of the High Court, directing that the seized primary gold should be released in favour of the appellants and the appellants would either sell the same to a licensed dealer or deliver possession thereof to a licensed dealer or a certified goldsmith, as might be specified by the Administrator, immediately on the release of such primary gold. [1127C] Badri Prasad vs Collector of Central Excise, [1971] Supp. S.C.R. 254, referred to.

Appeal No. 934 of 1964. Appeal from the judgment and order dated January 13, 1964, of the Punjab High Court (Circuit Bench) at Delhi in Civil Writ No. 258 D of 1957. Hardayal Hardy, B. Dutta, M. section K. Sastri and J. B. Dadachanji, for the appellants. C. K. Daphtary, Attorney General R. K. P. Shankardass and R. H. Dhebar, for the respondents. The Judgment of the Court was delivered by Gajendragadkar, C.J. The two appellants, the Hamdard Dawakhana (Wakf), Delhi, and its Mutawalli Haji Hakim Hameed, represent the Hamdard Dawakhana institution which was initially established in or about 1906 as a dawakhana and was subsequently declared and founded as a Wakf. Since its inception, the institution has been running dispensaries and clinics for the treatment of patients and has been manufacturing and supplying medicines and medicinal products according to Ayurvedic and Unani Systems of medicines. Appellant No. 1 also manufactures medicated syrups which contain some fruit juices for medicinal use and they are prepared according to a certain formula devised by it. "Sharbat Rooh Afza" which is a medicated syrup manufactured by appellant No. 1 is made of the following ingredients "Kasni seeds, Khus, Pumpkin Juice, Water melon Juice, Chharila, Ripe grapes, Spinach, Nilofar, Sandal, 194 Gul Gaozaban, Coriandar, Carrot, Mint, Kulfa, Keora, Rose, Citrus flower, Orange Juice, Pine apple Juice, Water, Sugar". The formula determining the ratio and proportion in which each one of the ingredients has to be used, has been evolved by appellant No. 1 as a result of various experiments spread over a long period. The manufacture of this Sharbat began in 1920. It is intended to be used for common ailments during hot season, particularly for ailments like loss of appetite, sun stroke, nausea, sleeplessness, etc. This Sharbat Rooh Afza is not a foodstuff, and cannot be regarded as an essential commodity under section 2 of the (No. 10 of 1955) (hereinafter called 'the Act '). In substance, this is the case as set out by the appellants in their petition. Purporting to act under section 3 of the Act the Central Govern ment made an Order called the Fruit Products Order, 1955 (hereinafter called 'the Fruit Order ') under Notification No. S.R.O. 1052 dated May 3, 1955. Under clause 3 of the Order, respondent No. 4, the Central Fruit Products Advisory Committee, has been constituted. It appears that on the 22nd September, 1956, the Central Government purporting to act under section 3 of the Act, made certain amendments in the Fruit Order. The result of one of the amendments thus made was to direct that the minimum percentage of fruit juice in the final product of a fruit syrup as indicated in Part 11 of the Second Schedule to the Fruit Order should be raised from 10% to 25%. The change so made was notified to the appellants by respondent No. 2, the Marketing Development Officer, Fruit Products, Central Zone, Delhi, on January 29, 1957. As a result of this intimation, certain correspondence followed between the appellants and respondent No. 2. The appellants had urged in the course of this correspondence that Sharbat Rooh Afza did not fall within the scope of the Act and the Fruit Order. On March 25, 1957, respondent No. 3, the Agricultural Marketing Adviser to the Government of India, New Delhi, invited a representative of the appellants for discussions, and as a result of the said discussion, Mr. Sood, the Marketing Development Officer, Delhi, inspected the factory of the appellants and watched the process of manufacture of Sharbat Rooh Afza on April 29, 1957. Thereafter, on May 10, 1957, the appellants received a communication from Mr. Sood ordering the appellants to stop further manufacture and sale of Sharbat Rooh Afza forthwith on 195 the ground that it did not contain the minimum percentage of fruit juice prescribed by the relevant clause of the Fruit Order. This communication mentioned the fact that the appellants had been specifically asked to prepare fruit syrups strictly in accordance with the specifications prescribed, but in utter disregard of the said instructions, the appellants had wilfully continued to contravene the provisions of the Fruit Order. That is why by virtue of the powers conferred on him by clause 13(f) of the Fruit Order, the present order was served on the appellants. It is this order which was challenged by the appellants by their writ petition filed before the Punjab High Court on the 18th May, 1957 (No. 258 D of 1957). By their writ petition, the appellants prayed that the impugned order as well as the several orders passed preceding it, should be quashed and a writ of mandamus should be issued against the respondents restraining them from seeking to enforce the material provisions of the Fruit Order in respect of the appellants ' product 'Sharbat Rooh Afza '. The appellants urged that the said Sharbat is not a foodstuff, but a medicinal product and as such, its produc tion cannot be regulated under the provisions of section 3 of the Act. According to them, the said Sharbat was not an essential commodity, nor was it a 'fruit product ' as defined by clause 2(d) of the fruit Order. They also urged that the impugned order was invalid, because it contravened the fundamental rights of the appellants under article 19(1)(f)&(g) of the Constitution; the Sharbat in question was in fact a medicinal product and as such, the impugned order was inconsistent with clause 16 (1) (c) of the Fruit Order. It is on these grounds that the appellants sought relief by way of an appropriate writ or order quashing the impugned order issued against them on May 10, 1957. To this petition, the appellants impleaded the Union of India as respondent No. 1. This petition was resisted by the respondents on several grounds. It was alleged that the Sharbat in question fell within the scope of the Act and the Fruit Order. The respondents referred to the fact that the Hamdard Dawakhana had duly applied and was granted a licence in 1955 as a manufacturer engaged in the business of manufacturing fruit products for sale. The Dawakhana is holding this licence since 1955. The bottles in which the Sharbat in question is sold by the appellants do not bear labels containing the words "for medicinal use only". It appears that the Dawakhana obtained a licence for the year 1952 under the Fruit Products Order 1948 for the manufacture of the Sharbat in question. On analysis, it was found that the said Sharbat did not 196 contain fruit juice, though it was sold as fruit juice. The label ,on the bottle of the Sharbat depicts pictures of fruits. Under the said Order of 1948 the synthetic syrups containing no fruit juice were required to be clearly marked as 'synthetic ' and to abstain from using labels with pictures of fruits. In 1954 when it was found that the Dawakhana did not get the licence renewed, the appellants were asked either to get their licence renewed or to get exemption by complying with the necessary conditions. When the appellants did not comply with these directions, some of the bottles of the Sharbat were detained in the market. That led to a writ petition filed by the appellants in 1.954 (No. 11 D/1954) in the Punjab High Court. When the petition, however, came for final hearing, it was not pressed, and so, was dismissed on June 5, 1954. The Dawakhana then filed a suit for injunction, but the said suit became infructuous with the expiry of the Fruit Products Order, 1948 on January 25, 1955. The present Fruit Order came into force on May 3, 1955; and the Dawakhana filed another suit for injunction, but pending the suit, the appellants applied for and obtained a licence under the Fruit Order and in consequence, the suit was withdrawn on October 18, 1955. Even after obtaining the licence, the requirements of the relevant provisions of the Fruit Order as to the minimum percentage of fruit juice were not complied with by the appellants; and that led to the impugned order. That is the background of the present writ petition. In the present writ petition, the respondents urged that the Sharbat in question is not sold for medicinal purposes; it is manufactured by the appellants as a fruit product and sold as such. No exemption was claimed by the appellants under clause 16 of the Fruit Order. The Sharbat in question is foodstuff within the meaning of section 2 of the Act and it falls within the purview of the Fruit Order. The impugned order is not unconstitutional, because the restriction imposed by it is consistent with the relevant provisions of the Act and the Fruit Order, and the said provisions are perfectly valid, because they impose a reasonable restriction in the interest of general public. This writ petition came on for final disposal before the Punjab High Court on January 13, 1964. The High Court has rejected the pleas raised by the appellants and dismissed their writ petition. The High Court has held that there was no substance in the appellants ' grievance that the Fruit Order was invalid. In support of this conclusion, the High Court has relied upon a decision of this 197 Court in M/s. Amrit Banaspati Co., Ltd. vs The State of Uttar Pradesh(1). The High Court negatived the appellants ' argument that the Sharbat in question was either prepared or sold as a medicinal product. In this connection the High Court has commented ' on the fact that the label borne by the bottles containing the Sharbat did not show that it was for medicinal use only as required by cl. 16 (1) (c) of the Fruit Order According to the High Court, clause 1 1 of the Fruit Order covered the case of the Sharbat prepared by the appellants, and so, the impugned order was justified. The High Court also found that there was no substance in the, grievance made by the appellants that as a result of this impugned order, their registered trade mark label had been affected. The High Court then examined the question as to whether the provisions of the Fruit Order could be said to be invalid, and it held that the said provisions were perfectly valid inasmuch as the restrictions imposed by them were reasonable and in the interests of ' the general public. It is on these grounds that the High Court dismissed the appellants ' petition. Thereafter, the appellants applied for and obtained a certificate from the High Court to come to this Court in appeal. This certificate was granted on July 22, 1964 After the appeal. was admitted in due course, the appellants moved this Court on October 26, 1964 for stay; in fact, during all the seven years that the writ petition was pending before the High Court, the appellants had obtained stay and they wanted the stay to continue pending the final ' disposal of this appeal. When we found that the writ petition had taken an unusually long time in the Punjab High Court, we directed that the stay should continue in favour of the appellants, but that the appeal should be heard on November 9, 1964. That is how the hearing of this appeal has been specially expedited. Before we deal with the points which have been raised before us by Mr. Pathak, we would refer very briefly to the scheme and the relevant provisions of the Act and the Fruit Order. The Act was passed in 1955 for the purpose of controlling the production, supply and distribution of, and trade and commerce in, certain commodities in the interests of the general public. The commodities which were intended to be brought within the purview of the Act were essential commodities as defined by section 2(a) of the Act. Amongst them are included foodstuffs, including edible oil seeds and oils covered by section 2 (a) (v), and any other class of ' commodity which the Central Government may, by notified order, (1) Criminal Appeal No. 141 of 1959 decided on 30 11 1960. 198 declare to be an essential commodity for the purposes of this Act, being a commodity with respect to which Parliament has power to make laws by virtue of entry 33 in List III of the Seventh Schedule to the Constitution; this is included in the definition by section 2 (a) (xi). Section 3 (1 ) provides that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub section (2) by clauses (a) to (h) provides for different categories of orders which may be passed by the Central Government without prejudice to the generality of the powers conferred on it by sub section (1). It would thus be clear that the Act confers power on the Central Government to regulate the production, supply and distribution of essential commodities. This power is conferred in a very general and wide sense by section 3 ( 1 ). There can be little doubt that the power to regulate the production of an essential commodity will include the power to regulate the production of essential commodities which may operate either qualitatively or quantitatively. In other words, in regard to essential commodities, the Central Government is given the power to direct how certain essential commodities should be produced and in what quantity. This power, of course, can be exercised only if the condition precedent prescribed by section 3(1) is satisfied, and that is that the Central Government should be of opinion that it is necessary or expedient to regulate the production of any essential commodity for one of the purposes mentioned by it. This position cannot be, and is not, disputed before us. In fact in M/s. Amrit Banaspati Co. Ltd.(1) this Court whilst dealing with the provisions of the Vegetable Oil Products Control Order, 1947, issued under section 3 (1 ) of the Act, has definitely ruled that a qualitative regulation in respect of the production of an essential commodity is permissible under section 3(1) of the Act. That takes us to the Fruit Products Order which was issued by the Central Government on May 3, 1955, in exercise of the powers conferred on it by section 3 of the Act. Clause 2 of the Fruit Order defines 'fruit product '. 2(d) (1) takes in synthetic beverages, syrups and sharbats; cl. 2 (d) (v) takes in squashes crushes, cordials, barley water, barreled juice and ready to serve beverages or any other beverages containing fruit juices or fruit pulp. Clause 2 (d) (xiv) takes in any other unspecified items relating to fruits or vegetables. Clause 2(j) defines "sharbat" as 199 meaning any non alcoholic sweetened beverage or syrup containing non fruit juice or flavoured with non fruit flavours, such as rose, khus, kewra, etc; and cl. 2(k) defines "synthetic beverage" as meaning any non alcoholic beverage or syrups, other than aerated waters, containing no fruit juice but having an artificial flavour or colour resembling as fruit. Clause 7 of the Fruit Order prescribes that every manufacturer shall manufacture fruit products in conformity with the sanitary requirements and the appropriate standard of quality and composition specified in the Second Schedule to this Order; it adds that every other fruit and vegetable product not so specified shall be manufactured in accordance with the standard of quality and composition laid down in this behalf by the Licensing Officer. That takes us to clause II; it is necessary to read this clause fully : (1)Any beverage which does not contain at least 25 per centum of fruit juice in its composition shall not be described as a fruit syrup, fruit juice, squash or cordial or crush and shall be described as a synthetic syrup. (2) Every synthetic syrup shall be clearly and conspicuously marked on the label as a 'SYNTHETIC ' product, and no container containing such product shall have a label, whether attached thereto or printed on the wrapper of such container or, otherwise, which may lead the consumer into believing that it is a fruit product, Neither the word 'FRUIT ' shall be used in describing such a product, nor shall it be sold under the cover of a label, which carries the picture of any fruit. Aerated water containing no fruit juice or pulp shall not have a label which leads the consumer into believing that it is a fruit product. Part II of the Second Schedule to the Fruit Order prescribes the specifications for fruit juice and other beverages. In regard to fruit syrup, it provides, inter alia, that the minimum percentage of fruit juice in the final product must be 25%. The respondents ' contention is that since the Sharbat in question produced by the appellants does not comply with this specification, it contravenes the mandatory provision of cl. 11(1). Part IV of the Second Schedule prescribes the specifications for synthetic syrups and sharbats. Under this Part, there is no requirement as to any minimum of fruit juice in the said syrups and sharbats. 200 Clause 16 of the Fruit Order provides for cases to which this Order does not apply, Clause 16 (1) (c) provides that nothing in this Order shall be deemed to apply to any syrups which are sold in bottles bearing a label containing the words "For medicinal use only" which does not exhibit any picture of fruits. It is common ground that the appellants do not sell the Sharbat in question in bottles bearing a label containing the words "For medicinal use only" and so, cl. 1 6 (1) (c) does not apply and the appellants can claim no exemption on that account. Mr. Pathak no doubt attempted to argue that the Sharbat in question is not an essential commodity and as such, it does not fall within the purview of the Act or within the purview of the Fruit Order. It appears that this plea was not urged by the appellants before the Punjab High Court. It was argued by them before the High Court that the Sharbat in question was a medicinal product; and that point had been considered and rejected by the High Court; and so, it has assumed that the Sharbat in question is an essential commodity within the meaning of section 2 of the Act; that question cannot now be allowed to be argued for the first time before this Court. Mr. Pathak wanted to suggest that the Sharbat in question is not a fruit product and as such, is outside the purview of the Fruit Order. We are not impressed by this argument. We have already referred to cl. 2 (d) (v) of the Fruit Order which refers to several beverages, and the residuary part of this clause takes in any other beverages containing fruit juices or fruit pulp. The suggestion that this clause should be read ejusdem generis with the previous categories of beverages cannot obviously be accepted because an examination of the said beverages will disclose the fact that there is no genus by reference to which the rule of ejusdem generis can be properly invoked. Besides, the context of the clause clearly suggests that it is intended to take in all beverages other than those earlier specified, provided they contain fruit juices or fruit pulp. Therefore, we feel no difficulty in holding that the Sharbat in question falls within the purview of cl. 2 (d) (v) of the Fruit Order and as such, its production can be controlled by its relevant provisions Then it is urged by Mr. Pathak that the Fruit Order itself is invalid, because it does not purport to say that before it was issued, the Central Government had formed the opinion that it was necessary or expedient to issue the Order for maintaining or increasing supplies of the commodity in question. Mr Pathak 201 contends, and rightly, that the condition prescribed by the first part of section 3(1) of the Act is a condition precedent and it is only when and after the said condition is satisfied that the power to issue a regulatory order can be exercised by the Central Government. This contention again cannot be allowed to be raised for the first time in appeal, because if it had been raised before the High Court, the respondents would have had a chance to meet it. It is true, as Mr. Pathak contends, that in the absence of any specific averment made by the Fruit Order that the Central Government had formed the necessary opinion, no presumption can be drawn that such opinion had been formed at the relevant time; but it would have been open to the respondents to prove that such an opinion had been formed at the relevant time; and it cannot be suggested that the failure to mention that fact expressly in the Fruit Order itself would preclude the respondents from proving the said fact independently. That is why we think Mr. Pathak cannot be permitted to urge this contention at this stage. Mr. Pathak, has, however, strenuously argued before us that the Fruit Order is invalid, because its relevant provisions indicate that it is an Order which could have been appropriately issued under the (No. 37 of 1954). In support of this argument, Mr. Pathak has relied on the fact that Act 37 of 1954 is relatable to the legislative power conferred by Entry 18 in List III of the Seventh Schedule to the Constitution which refers to adulteration of foodstuffs and other goods; and so, the material provisions of the Fruit Order which really prevent the adulteration of fruit products could be legitimately enacted under this Act. On the other hand, the is relateable to Entry 33 in List III and the Fruit Order issued under it would, therefore, be inappropriate, having regard to the object which this Order is intended to achieve. He argues that the two powers are distinct and separate, and the Fruit Order with which we are concerned, cannot be said properly to have been issued under the Act. It is true that the does deal with the problem of preventing adulteration of food; but it is not easy to accept Mr. Pathak 's assumption that the regulatory Order of the kind with which we are concerned which imposes regulations Of a qualitative character in the production of essential goods, could have been issued under this Act. But quite apart from this consideration if section 3(1) of the Act authorises the Central Government to regulate the qualitative and quantitative production of essential commodities, it is idle to contend that the regulations p /65 14 202 imposed by the Fruit Order in respect of fruit products are outside the purview of section 3 (1). The pith and substance of the relevant provisions of the Fruit Order clearly is to regulate the qualitative production of fruit products covered by it. This object is illustrated by the specification with which we are concerned. Part II of the Second Schedule to the Fruit Order 1which has imposed the obligation on the manufacturers of fruit 'Syrups to include at least 25% of fruit juice in the final product of the fruit syrup produced by them, shows that by virtue of its powers under section 3 (1) of the Act, the Central Government thought it necessary to require that a particular quality of fruit syrup should be put on the market as fruit syrup and no other. This object plainly falls within the purview of section 3(1), and so, the contention that the Fruit Order is invalid inasmuch as it purports to tackle the problem of adulteration of fruit product, cannot be accepted. Then Mr. Pathak suggested that there was some inconsistency between the definition of 'synthetic beverage ' prescribed by cl. 2 (k) and the provisions of cl. 11 (2) of the Fruit Order. We have already read cl. 11. The effect of cl. 11 (1) is that if any beverage does not contain at least 25 per cent of fruit juice, it shall not be described, inter alia, as 'fruit syrup ', but shall be ,described as a 'synthetic syrup ', and sub cl. (2) of cl. 11 therefore provides that if any syrup which has to be described as a 'synthetic syrup ' by virtue of the provisions of sub cl. (1) is put on the market, it would be necessary to describe it as a 'Synthetic ' product clearly and conspicuously. It is with the object of bringing it to the notice of the customers at large that the synthetic product does not contain the minimum fruit juice prescribed by the Fruit Order that sub cl. (2) imposes an obligation that whoever puts the synthetic product in the market shall mark it with a label "Synthetic" and no attempt would be made to describe the product as though it was a fruit product. That is why a specific provision is made by sub cl. (2) that neither the word "Fruit" shall be used in describing such a product, nor will it bear a label which carries the picture of any fruit. From this provision aerated waters are exempted, because it was thought that no customer would ever mistake aerated water for fruit juice. Now, if we bear in mind this scheme of clause 11, it is difficult to see where the inconsistency lies between cl. 11 and the definition of a 'synthetic beverage ' as prescribed by cl. 2(k). The definition of synthetic beverage indicates that it is a beverage which contains no fruit juice, and clause 11 which contains a positive provision that beverages 203 containing less than 25 per cent fruit juice should be shown as a 'synthetic ' product. The definition of 'synthetic beverage ' cannot be said to conflict with the requirement that the products falling under cl. 11(2) should be sold as 'synthetic ' products. Besides, clause 1 1 contains a positive provision and the validity of the mandatory requirements of cl. 11 cannot be said to be impaired by any alleged inconsistency between the said provision and the definition of 'synthetic beverage ' prescribed by cl. 2 (k) of the Fruit Order. The last contention which Mr. Pathak urged before us is that the impugned order is invalid, because it affects the appellants ' trade mark right. It is not easy to appreciate this argument. We have already held that the Act and the Fruit Order issued by the Central Government by virtue of its powers conferred by section 3(1) of the Act are valid. If that be so, the impugned order which is fully justified by the provisions of the Act and the Fruit Order cannot be challenged as being invalid. The conclusion that the Act and the Fruit Order issued under it are constitutionally valid proceeds on the basis that the restrictions imposed by them are reasonable and in the interests of general public. What the impugned order purports to do is to require the appellants to comply with the reasonable restrictions imposed by the Fruit Order. The fact that incidentally compliance with Fruit Order may tend to affect their trade mark right cannot, in our opinion, render the impugned order invalid. In this connection, it is necessary to bear in mind that appellant No. I would not be justified in con tending that the registered trade mark which is usually intended to distinguish one manufactured article from another can be used by it even though it is likely to mislead the customers, or its use would mean a breach of some other law. Besides, it is significant that the impugned order does not really compel the appellants to change their trade mark. If the appellants desire that the Sharbat in question should be put on the market without complying with the requirements of clause 1 1 ( 1 ), all that they to do is to comply with cl. 1 1 (2) of the Fruit Order. In the process of complying with cl. 1 1 (2), if their trade mark right is likely to be affected, that would not render the impugned order invalid, because the restriction which is sought to be enforced against them is found to be reasonable and in the interests of the general public. Besides, we would like to add that if the appellants wanted to urge this point seriously, they should have placed before the Court more material in respect of their alleged trade mark right. The appellants had alleged in their writ petition that they are putting the 204 Sharbat on the market as a medicinal product. In that case, they may claim exemption by complying with cl. 16 (i) (c) of the Fruit Order. We are, therefore satisfied that the Punjab High Court was right in holding that no case had been made out by the appellants for quashing the impugned order. Before we part with this appeal, we would like to refer to one unfortunate aspect of the present proceedings. We have already indicated that the present writ petition was filed by the appellants in the Punjab High Court on May 18, 1957, and it was finally decided on January 13, 1964. It is very much to be regretted that the final disposal of this writ petition should have taken such an unusually long period. The appellants have been agitating this matter since 1957 and as a result of the long duration of the present writ petition in the High Court, they have had the benefit of the stay order all this time, though ultimately it was found that there was no substance in the petition. It is hardly necessary to add that writ petitions in which orders of stay and injunction are passed, should be decided as expeditiously as possible. That is why when it came to the notice of this Court that this writ petition has taken an unusually long period in the High Court, we directed that it should be set down for hearing within a fortnight after it was brought to us on a notice of motion for stay. The result is, the appeal fails and is dismissed with costs. Appea1 dismissed.

The appellant .company reduced its capital and the reduction was confirmed by the High Court. On November 4 , 1954, i.e. during the course of the appellant 's accounting year ending November 30, 1954, the Registrar of Companies issued the requisite certificate under section 61(4) of the Indian Companies Act. The surplus share capital consequent on reduction was, however, not refunded to the shareholders during the said accounting year. It was refunded by actual payment or by credit entries in the next accounting year which ended on November 30, 1955. The Income tax Officer held that the said distribution to the extent of accumulated profits was 'dividend ' under section 2(6A)(d) of the Indian Income tax Act, 1922. He further held that the distribution took place in the accounting year ending November 30, 1955, relevant for the assessment year 1956 57. On these findings he calculated the rebate on super tax in the terms of cl. (i)(b) of the second proviso to paragraph D of Part II of the first schedule to the Finance Act, 1956. The findings of the Income tax Officer were upheld by the Appellate Assistant Commissioner and the Appellate Tribunal, and also, in reference, by the High Court. The appellant came to the Supremen Court by certificate. It was contended on behalf of the appellant: (1) In defining 'dividend ' to include capital receipts resulting from distribution of capital on reduction, the legislature went beyond the ambit of entry 54 List I, Seventh Schedule, Government of India Act, 1935, and section 2(6A)(d) of the Indian Income tax Act, 1922 was therefore, ultra vires. (2) The certificate of the Registrar under section 61(4) of the Indian Companies Act was issued on November 4, 1954 and therefore the 'distribution ' under section 2(6A)(d) took place in the previous year relevant to the assessment year 11955 56. HELD ': The expression 'income ' in entry 54 List I of the Seventh Schedule to the Government of India Act, 1935, and the corresponding entry 82 of List I of the Seventh Schedule to the Constitution of India must be widely and liberally construed so as to enable the Legislature to provide by law for the prevention of evasion of Income tax, [5H; 6A] 2 United Provinces vs Atiqa Begum, , Sardar Baldev Singh vs Commissioner of Income tax, Delhi and Ajmer, ; , Balaji vs Income tax Officer Special Investigation Circle, ; and Navnittal C. Javeri vs K.K. Sen, Appellate Assistant Commissioner of Income tax 'D ' Range, Bombay; , , referred to. A company may on the pretext of reducing its capital, utilise its accumulated profits to pay back to the shareholders the whole or part of the paid up amounts on the shares. This is a division of profits under the guise of division of capital. If this were permitted there would be evasion of super tax. Section 2(6A)(d) embodies a law to prevent such evasion and hence it falls within the ken of entry 54 of List I of Schedule Seven to the Government of India Act, 1935. [6H; 7A, G] There is no inconsistency between a receipt being a capital one under the company law and by fiction being treated as taxable under the Income tax Act. [7F G] Per Subba Rao. Mudholkar and Ramaswami, JJ. The expression 'distribution ' connotes something actual and not notional. Like 'paid ' or 'credited ' in section 16(2), distribution ' signifies 'the discharge of the company 's liability and making the dividend available to the members entitled thereto. [8D, F, G] J. Dalmia vs Commissioner of I.T. Delhi, and Mrs. P.R. Saraiya vs Commissioner of Income tax, Bombay City 1, Bombay; , , relied on. Distribution can ke physical, it can be constructive. One may distribute assets between different shareholders either by crediting the amount due to each one of them in their respective accounts, or by actually paying to each one of them the amount due to him. [8D] Distribution in the above manner may take place partly in one year and partly in another. But the amount of accumulated profits is fixed by the resolution of the company reducing its capital, and the figure does not change with the date of payment or credit. [9D, E] In the present case the payments and credits were actually given during the accounting year ending November 30, 1955. The dividend under section 2(6A)(d) must be deemed to have been distributed in the said year. The relevant assessment year therefore was 1956 57.[10F] Per Raghubar Dayal and Bachawat, JJ. The word distributed ', in section 2(6A)(d) does not mean 'paid ' or credited '. Cases under section 16(2) are not relevant to the issue. [14G H] The 'distribution ' contemplated by section 2(6A)(d) is distribution at the time of reduction of capital, that is to say, when the resolution of the company reducing the capital takes effect. It means allotment or apportionment of the surplus among the shareholders; this allotment takes place and each shareholder gets a vested right to his portion of the surplus as soon as the capital stands reduced. [12F H] While the distribution as above takes place on a single date i.e. the date of the reduction of capital, the payments to the shareholders either actual or by credit entries in books of account may be made subsequently and on different dates. The successive payments cannot be 'distribution ' contemplated by section 2(6A) (d). [13A C] 3 In the instant case the resolution for the reduction of the capital of the company and the consequential refund of the surplus capital to the shareholder took effect on November 4, 1954. Consequently the distribution of the 'dividend ' as defined by section 2(6A)(d) took place on that date i.e. during the previous year corresponding to the assessment year 1955 56.

Appeal No. 210 of 1959. Appeal by special leave from the judgment and order dated January 16, 1958, of the Patna High Court in Mis. Judicial case No. 156 of 1957. B. C. Ghose and P. K. Chatterjee, for the Appellant. section P. Varma, for Respondents Nos. 1 to 5. R. C. Dutta, for Respondents Nos. 6 to 20. 1960. November 7. The Judgment of Hidayatullah, Das Gupta and Ayyangar, JJ., was delivered by Ayyangar, J., and that of section K. Das and Shah, JJ., was delivered by Shah, J. AYYANGAR. The sole question which arises in this appeal, which comes by way of special leave is as to whether sales under which goods were delivered outside the State of Bihar for the purpose of consumption but not within the State of first delivery or first destination, are exempt from the levy of sales tax by the Bihar State by virtue of article 286(1)(a) of the Constitution as it stood before the recent amendment. The India Copper Corporation Ltd. (referred to hereafter as the assessee company) carries on business in copper and various other materials and mineral pro. ducts and the office of its General Manager is in the district of Singhbhum in Bihar. The period covered by the assessment now in dispute is January 26, 1950 to March 31, 1950. The normal practice of the assessee company was to deposit sums of money from time to time provisionally towards payment of sales tax in advance and have the amount finally adjusted after the completion of the assessment of each year. The assessee company followed this practice in respect of the amount of sales tax due by it for the year 1949 50. For the financial year April 1, 1949 to March 31, 1950, the Superintendent of Sales tax, Singhbhum, 278 computed the tax liability of the company in the sum of Rs. 3,60,703 4 0 by an order of assessment dated November 13,1950, and the company made payment of the amount due by it beyond the sums already paid. It would be noticed that this financial year comprised two periods (1) before the Constitution, viz., April 1, 1949 to January 25, 1950, and (2) the post Constitution period from January 26, 1950 to March 31, 1950. There is now no controversy as regards the sales tax payable in respect of sales effected during the pre Constitution period. The assessee company however raised a dispute that in respect of the post Constitution period, it was not liable to pay any sales tax in respect of sales to buyers, under which though the property in the goods passed within the State, delivery of the goods was effected outside the State of Bihar for consumption outside that State on the ground that such sales were exempted from tax by article 286(1)(a) of the Constitution as it originally stood. It addressed a formal letter to the Commissioner of Commercial Taxes, Bihar, on December 30, 1952, making this demand enclosing a statement showing full particulars of the goods sold, the bill numbers, the date and the amount etc., to enable the refund claimed to be calculated. The assessee company followed it up by a formal petition for review of the assessment order by filing a revised return under section 12(2) of the Bihar Sales tax Act together with an application for refund. The departmental authorities rejected these applications by order dated July 20, 1953. Further proceedings before the department by way of revision etc. failed to secure to the assessee company the relief which it claimed and thereafter it filed an application under articles 226 and 227 of the Constitution before the High Court of Patna praying for the issue of a writ to quash the order of assessment dated November 30, 1950, and the orders rejecting the prayers for review, reassessment and refund and for a direction to the departmental authorities to refund the sum realised by them in so far as the tax related to sales as a result of which goods were delivered outside the State of Bihar. 279 The learned Judges of the High Court held that the order of the Superintendent of Sales tax, Singhbhum, dated November 13, 1950, should be set aside and that the matter should go back to the Superintendent to make a reassessment according to law for the post Constitution period. A further direction was added requiring the respondent to refund to the assessee so much of the tax as had been paid in excess of the amount of reassessment to be made by the Superinten dent in accordance with the law as laid down by the Court. In formulating the law applicable, the learned Judges drew a distinction between sales as a direct result of which goods were delivered in a State outside the State of Bihar and consumed in that State and those cases in which the goods thus delivered, were not consumed in the State of first destination but were re exported from the State of first destination to other States. They held that the first category of sales were covered by the Explanation to article 286 (1)(a) of the Constitution and were " inside " the State of first delivery and consequently " outside " the State of Bihar within the meaning of the Article and therefore exempt from tax by the Bihar State. In regard, however, to the second category of sales, it was held that they were not within the Explanation and were therefore outside the constitutional exemption under article 286(1)(a). The assessee company not being satisfied, filed an application to the High Court for a Certificate of fitness under articles 132 and 133 of the Constitution, but this having been rejected, they applied to and obtained special leave from this Court under article 136 of the Constitution and that is how the appeal is now before us. Three points were urged before us by Mr. B. C. Ghose, learned Counsel for the appellants: (1) that on a proper construction of article 286(1)(a) and the Explanation thereto (as it stood before the Article was amended by the Constitution Sixth Amendment Act, 1956) every sale as a direct result of which goods were delivered for consumption outside the State, was not within the taxing power of the State in which the 280 goods were at the time of the sale, and ,in which property passed as a result thereof, and that it was immaterial whether the delivery was for the purpose of consumption in the State of first destination or whether the delivery in such State was not for the purpose of consumption therein but, for re export to other States, (2) that even if article 286(1)(a) exempted only sales in which as a direct result of the sale the goods were delivered for the purpose of consumption in the State of first destination, on the pleadings and the evidence before the Court the assessee company must be taken to have established that all the sales effected by it and in regard to which exemption from payment of tax was claimed, conformed to this requirement, (3) a narrower submission, that even it be that to fall within the Explanation the delivery has to be for the Purpose of consumption in the State of first destination, the learned Judges of the High Court erred in requiring the assessee company to prove not merely that the goods were delivered for the purpose of consumption but further that the goods so delivered were actually consumed within that State. We shall now deal with these points in that order. Article 286(1)(a) together with the Explanation on whose construction the first point depends ran in these terms: " Article 286(1). No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b). . . . . . . . . . . Explanation. For the purposes of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. " The scope and the purpose of this Explanation was 281 discussed and explained by this Court in The State of Bombay vs Unitea Motors (India) Ltd. (1) and it is the passage in this judgment extracted below on which reliance was placed by the learned Counsel in support of his submission: ". . . The authors of the Constitution had to devise a formula of restrictions to be imposed on the State power of taxing sales or purchases involving inter State elements which would avoid the doubts and difficulties arising out of the imposition of sales tax on the same transaction by several Provincial Legislatures in the country before the commencement of the Constitution. This they did by enacting clause (1) (a) with the Explanation and clause (2) of Article 286. Clause (1)(a) prohibits the taxation of all sales or purchases which take place outside the State but a localised sale is a troublesome concept, for, a sale is a composite transaction involving as it does several elements such as agreement to sell, transfer of ownership, payment of the price, delivery of the goods and so forth, which may take place at different places. To solve the difficulty an easily applicable test for determining what is an outside sale had to be formulated, and that is what, in our opinion, the Explanation was intended to do. It provides by means of a legal fiction that the State in which the goods sold or purchased are actually delivered for consumption therein is the State in which the sale or purchase is to be considered to have taken place, notwithstanding the property in such goods passed in another State . An " outside " sale or purchase is explained by defining what is an inside sale, and why actual delivery and consumption in the State are made the determining factors in locating a sale or purchase will presently appear. The test of sufficient territorial nexus was thus replaced by a simpler and more easily workable test: Are the goods actually delivered in the taxing State, as a direct result of a sale or purchase, for the purpose of consumption therein ? Then, such sale or purchase shall be deemed to have taken place (1) ; , 1081 36 282 in that State and outside all other States. The latter States are prohibited from taxing the sale or purchase; the former alone is left free to do go. Multiple taxation of the same transaction by different States is also thus avoided. " It might be mentioned that this portion of the judgment is unaffected by the dissent expressed in the later decision in The Bengal Immunity Company Ltd. vs The State of Bihar (1). The argument based upon this passage was broadly on these lines: Article 286 (1)(a) imposes a ban on the legislative power to levy a tax on sales which are outside " the taxing State. What sales are " outside is not easy to decide because that depends upon " the situs " of a sale, which cannot, in most cases, be located in any one place with certainty being dependent on a variety of factors which might or might not converge. The Constitution makers did not directly define what was meant by a ,sale that was " outside the State " but achieved the same purpose by explaining an " inside " sale with the result that what was not an " inside " sale should be held to bean ,outside" sale. It must however be pointed out that it was not disputed that the terms of the " Explanation " would not be satisfied unless the delivery was for the purpose of consumption therein, i.e. in the State of first destination, If the terms of the Explanation were satisfied, the State of " delivery. cum consumption ", (to coin a convenient expression to designate the State in which goods are delivered as a direct result of the sale for the purpose of consumption therein), used in the Explanation, would have power to tax the sale as being one fictionally " inside " it. In such an event all the other States in India, barring that State would be prevented from taxing that sale because the sale would be " outside " those States. This however, it was urged, would not exhaust the operation of the Explanation, but further that the Explanation was exhaustive of what the Constitution makers conceived to be a sale which alone may be the subject of tax by a State. The deduction learned Counsel made from these premises was twofold (1) that (1) 283 in cases where goods were as a direct result of the sale delivered outside the State of Bihar for the purpose of consumption in the State of first destination, the conditions of the Explanation were satisfied and the sales being " outside " the State of Bihar could not be taxed by that State. So far there is no dispute and indeed the learned Judges of the High Court have, subject to a matter of detail to which reference will be made later, accepted the contention of the assessee. (2) a further consequence, that in cases where goods were delivered as a result of the sale outside the State of Bihar, but not for the purpose of consumption in such State of first destination, the terms of the Explanation were no doubt not satisfied and consequently the, sale was not inside such State of delivery and indeed not " inside " any State in India within the Explanation, but that such sales also must be held to be " outside " every State in India within article 286 (1)(a). The learned Judges of the High Court repelled this contention and, in our opinion, correctly. The passage in the judgment of the United Motors case extracted earlier dealt with Explanation sales and with none else. When the terms of the Explanation were satisfied such sales were by a fiction deemed to be " inside " the State of delivery cum consumption and therefore " outside " all other States. In such cases therefore, only the State " inside " which the sale is deemed to take place by virtue of the Explanation, is exempt from the ban imposed by article 286(1)(a). All other States would be subject to that ban in respect of such sales. The learned Chief Justice however did not, in the passage extracted, deal with the case of sales which did not satisfy the terms of the Explanation. The situs of what might be termed 1 non Explanation ' sales has therefore to be determined independently of the terms of the Explanation. Such sales would be exempt from tax only if the sale took place " outside the State but not otherwise. The next question is, does a sale take place " outside " the State, where as a result of the contract of 284 sale, the property in the goods passes to the purchaser within the State; in other words, is a sale completed by the passing of property within the State not " inside" a State, for the more reason that as a direct result of the sale the goods are delivered outside the State. The answer depends on the meaning to be attributed to the words " a sale or purchase which has taken place " outside the State occurring in the body of article 286 (1). The expression " outside the State " is capable of being understood in more senses than one. It could be understood as comprehending cases where no element or ingredient which constitutes a sale takes place within the State; in other words as applying solely to those cases where there exists no territorial nexus between the State imposing the tax and the sale. Obviously, this could not have been intended to be incorporated in article 286(1) because the tax in such cases would be beyond the legislative power of the State under Entry 54 of the State List read with article 246 of the Constitution. The expression " outside " has therefore to be understood not as a sale so " outside " as not to have any territorial connection between the State in question and the sale, but in a somewhat narrower sense. The real difficulty arises in ascertaining the precise content of the narrower sense in which the word is used as meaning a sale in substance " outside " the State, though there might be some elements of the sale which if the exemption under article 286(1)(a) were not enacted, would enable a State to levy a tax on the sale on the ground that it was within the legislative power of the State under article 246 read with Entry 54. As already pointed out, the situs of a sale is not easy to determine and several factors which constitute a completed transaction of sale including the delivery of the goods, lay claim to be considered as in themselves constituting sufficient next to justify their being treated as determining the locus of a sale. Thus, merely by way of illustration, the place where the goods are at the time of the contract of sale, the place where the contract of sale is concluded, the place where the property in the goods passes and that 285 in which the delivery takes place compete for recognition as constituting the locus of a sale. Before the Constitution, these and other similar factors were treated as affording sufficient territorial connection to endow the State in which any of the events occurred with legislative competence to tax the sale. This led to a multiplicity of the taxation of the same transaction of sale by a plurality of States, with the result that the consumer was hard hit and trade itself, and national economy suffered in the process. It has been pointed out that article 286(1)(a) was designed to counteract that state of affairs. If a single State was designed to have the power to tax any particular transaction of sale, the question that next falls to be considered is the determination of that State in regard to which it could be predicated that the sale in question was not " outside " that State or in other words, the determination of the particular State in regard to which it could be said that the sale was " inside " that State. The key to the problem is afforded by two indications in the Article itself: (1) the opening words of Article 286(1) which speak of a sale or purchase taking place and (2) the non obstante clause in the Explanation which refers to the general law relating to " sale of goods under which property in the goods has, by reason of such sale or purchase, passed in another State. " These two together indicate that it is the passing of property within the State that is intended to be fastened on, for the purpose of determining, whether the sale in question is " inside " or " outside " the State, and therefore, subject to the operation of the " Explanation " that State in which property passes would be the only State which would have the power to levy a tax on the sale. As was explained in the recent decision of this Court in Burmah Shell Oil Storage & Distributing Co., of India, Ltd. vs The Commercial Tax Officer (1) : " By sale here (article 286(1)(a) ) is meant a completed transaction by which property in the goods passes. Before the property in the goods passes, the contract (1) C.A. 751 of 1957 & C.A. 10 of 1958 (Unreported). 286 of sale is only executory, and the buyer has only a chose in action. . . . The Constitution thinks in terms of a completed sale by the passing of property and not in terms of an executory contract for the sale of goods. " Notwithstanding that is not an " outside " sale, the power of the State to tax might be negatived by the operation of the Explanation which by its non obstante clause shifts the situs of the sale and renders the sale transaction one within the delivery cum consumption State, i.e. as the State in which the sale transaction must be deemed to take place. Where the terms of the Explanation are satisfied, the sale transaction will, by a legal fiction created by it, be deemed to take place "inside" the State of delivery and therefore " outside " the State in which the property passes. The conclusion reached therefore is that where the property in the goods passes within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of article 286(1)(a), unless the Explanation operates. We need also add that the power of the State to impose the tax might still not be available unless the transaction in question is unaffected by the other bans imposed under sub cl. (1)(b), (2) and (3) of article 286. The submission therefore of learned Counsel for the appellants, that in respect of non Explanation sales the State of Bihar has no power to levy a tax by reason of such sales being 'outside " the State within article 286(1)(a) must be rejected. The second contention urged by the learned Counsel for the appellant was that even assuming he was wrong on the first point, all the sales by the assessee company fell within the terms of the Explanation to article 286(1)(a) being sales as a direct result of which the goods were delivered for consumption in the State of first destination, and that the learned Judges of the High Court were in error in considering, that some of the sales did not conform to this requirement. In support of this submission learned counsel drew our attention to two matters. He first referred us to the application dated December 30, 1952 made on behalf 287 of the assessee company to the Commissioner of Commercial Taxes, Bihar, Patna in which the claim for refund of the tax paid was rested on the following ground : After getting out that the tax on sales effected between the period January 26, 1950 to March 31, 1950 was not assessable by virtue of article 286 of the Constitution, the application stated: " Total sales of raw materials of copper and brass sheet and circles sold by us and despatched under railway receipts for buyers ' consumption are as follows". Then followed the sales effected and the tax paid in respect of the sales. The claim in this form was annexed to and made part of the petition to the High Court under article 226 and 227 of the Constitution and in paragraph 9 of the petition, this letter was referred to and a copy thereof was incorporated and marked as 1A. In this paragraph which was the other matter relied on the claim for refund was said to be " on sales made to buyers outside Bihar State for consumption ". Learned Counsel strongly pressed upon us that paragraph 9 and the annexure had clearly asserted that the sales which were the, subject of the claim for refund involved a delivery of the goods outside the State of Bihar for consumption in the State of first destination and the State of Bihar not having filed any counter affidavit challenging the correctness of these allegations, the High Court should have held that the terms of the Explanation were satisfied and should have ordered the refund claimed. We however consider that this submission is without force. Neither in the claim put forward in Exh. 'A ' nor in para graph 9 of the petition was any distinction drawn between sales under which deliveries were effected outside the State of Bihar for the purpose of consumption in the State of first destination and those in which the deliveries outside the State were effected for the purpose of consumption not in the State of first destination but in other States. In fact, this was made clear in the later paragraphs of the petition to the High Court from which it is apparent that the assessee company made a claim for tax exemption in 288 respect of sales in which the delivery took place outside the State of Bihar, whether the delivery was for the purpose of consumption in the State of first destination or otherwise. In paragraph 17(1) of the petition to the High Court the assessee stated: " (the petitioner was not liable to pay tax on goods delivered outside the State of Bihar which was also for consumption outside the State of Bihar ", and again in clause (iii) of the same paragraph this was repeated: " the goods being outside the State of Bihar, delivered outside the State of Bihar and consumed outside the State of Bihar were not liable to sales tax by the State of Bihar " and similarly in cl. (v) of the same paragraph a reference was made to " goods delivered outside the State of Bihar for consumption outside the State of Bihar ". The same idea is emphasized in paragraph 19 also which contained the prayer of the petition. On these averments it is clear that the claim made by the assessee was that to invoke the exemption contained in article 286(1)(a) it was sufficient that the goods were delivered outside the State of Bihar and that it was immaterial whether the delivery was for the purpose of consumption in the State of first destination or otherwise. This involved the same argument which was raised by the learned Counsel that we have dealt with earlier. The learned Judges of the High Court were therefore right in drawing a distinction between the two types of sales which we have already indicated. The last point that was urged by the learned Counsel was that the learned Judges of the High Court erred in requiring the assessee to prove that the goods delivered outside the State of Bihar were actually consumed in the State of first destination before the exemption from tax could be availed of In their judgment now under appeal the learned Judges have stated: "The petitioner would not be entitled to exemption if the goods were not consumed in the State of first destination but were re exported from the State of first destination to other States) '. Learned Counsel for the appellant complained that 289 under the Explanation to article 286(1)(a) there need be no proof of actual consumption of the goods delivered in the State of first destination but that the Explanation was satisfied if the purpose of the delivery tinder the sale was for consumption in that State. If after a sale that satisfied that requirement, viz., for the purpose of consumption in the State of first destination, the buyer under such a sale for his own purposes reexported the goods that was not a matter with which the seller was concerned and would not affect the character of the sale as one falling within the Explanation to article 286(1)(a). Learned Counsel therefore urged that the learned Judges of the High Court went wrong in requiring proof on the part of the assessee that the goods were actually consumed within the State of first delivery outside Bihar and that this was an unwarranted addition to the requirements of the Explanation. We consider this submission well founded and indeed the learned Counsel for the respondent did not dispute that the actual order of the High Court went beyond the terms of the Explanation to article 286(1)(a). The order of the High Court will, therefore, be modified by making it clear that if the goods were as a direct result of the sale delivered outside the State of Bihar for the purpose of consumption in the State of first delivery the assessee would be entitled to exemption of the sales tax imposed and that it would not be necessary for the assessee to prove further that the goods so delivered were actually consumed in the State of first destination. Subject to this modification, the appeal fails, but in the circumstances of the case there will be no order as to costs. SHAH J. We agree with the conclusion of Mr. Justice Rajagopala Ayyangar, J., but because our approach to the question is somewhat different, we propose to record our reasons separately. The Bihar Sales Tax Act, 1947, was enacted in exercise of legislative authority conferred upon the Provincial Legislatures by entry 42 in List II read 37 290 with section 100(3) of the Government of India Act, 1935. By section 2(g) of the Act, " sale " was defined (in so far as it is material) as meaning any " transfer of property in goods for cash or deferred payment or other valuable consideration. . provided. . provided further that notwithstanding anything to the contrary in the Indian Sales of Goods Act, 1930, the sale of any goods (i) which are actually in Bihar at the time when, in respect thereof, the contract of sale as defined in section 4 of that Act is made, or (ii) which are produced or manufactured in Bihar by the producer or manufacturer thereof, shall, wherever the delivery or contract of sale is made, be deemed for the purposes of this Act to have taken place in Bihar." Under entry 42 of List II of the Government of India Act, 1935, the Provincial Legislatures could tax sales by selecting some fact or circumstance which provided a territorial nexus with the taxing power of the State even if the property in the goods sold passed outside the Province or the delivery under the contract of sale took place outside the Province. Legislation taxing sales depending solely upon the existence of a nexus, such as production or manufacture of the goods, or presence of the goods in the Province at the date of the contract of sale, between the sale and the Legislating Province could competently be enacted under the Government of India Act, 1935 see the Tata Iron and Steel Co., Ltd. vs The State of Bihar and Poppatlal Shah vs The State of Madras (2). By article 286 of the Constitution, certain fetters were placed upon the legislative powers of the States as follows: article 286: " (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State ; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. (1) (2) ; 291 Explanation:For the purposes of sub cl. (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce : Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty first day of March, 1951. (3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. " With a view to impose restrictions on the taxing power of the States under the pre Constitution statutes, amendments were made in these statutes by the Adaptation of Laws Order. By the Adaptation of Laws Order, 1951, in the Bihar Sales Tax Act was incorporated with retrospective operation from January 26, 1950, section 33, which provided: " ' (1) Notwithstanding anything contained in this Act, (a) a tax on the sale or purchase of goods shall not be imposed under this Act (i) where such sale or purchase takes place outside the State of Bihar ; or 292 (ii) where such sale or purchase takes place in the course of import of the goods into, or export of the goods out of, the territory of India ; (b) a tax on the sale or purchase of any goods shall not, after the 31st day of March, 1951, be imposed where such sale or purchase takes place in the course of inter State trade or commerce except in so far as Parliament may by law otherwise provide; (2) The Explanation to cl. (1) of article 286 of the Constitution shall apply for the interpretation of sub cl. (1) of cl. (a) of sub section " By this amendment, on the taxing power of the Bihar State the same restrictions were engrafted on the pre Constitution statute as were imposed by article 286 of the Constitution upon post Constitution statutes. This court has held in the Bengal Immunity Co., Ltd. vs The State of Bihar (1) that the operative provisions of the several parts of article 286 namely cl. (1) (a), (1)(b) and (2) and cl. (3) were intended to deal with different topics and one could not be projected or read into another. Therefore, by the incorporation of section 33 in the Bihar Sales Tax Act read with article 286, notwithstanding the amplitude of the power otherwise granted by the charging section read with the definition of " sale ", a cumulative fetter of triple dimension was imposed upon the taxing power of the State. The Legislature of the Bihar State could not since January 26, 1950, levy a tax on sale of goods taking place outside the State or in the course of import of the goods into, or export of the goods out of the territory of India, or on sale of any goods where such sale took place in the course of inter State trade or commerce. By the Explanation to article 286(1)(a) which is incorporated by sub section (2) section 33 of the Bihar Sales Tax Act, a sale is deemed to take place in the State in which the goods are actually delivered as a direct result of such sale for the purpose of consumption in that State even though under the law relating to sale of goods the property in the goods has by reason of such sale passed in another State. In the State of Bombay vs The United Motors (India) Ltd. (2), it was held that (1) (2) ; 293 since the enactment of article 286(1)(a), a sale described in the Explanation which may for convenience be called an " Explanation sale " is taxable by that State alone in which the goods sold are actually delivered as a direct result of sale for the purpose of consumption in that State. The right to tax arises because the sale is deemed to take place in that State and outside all other States and the latter States are prohibited from taxing the sale ; the former alone is left free to do so. The Bihar Sales Tax Act enacted in exercise of the power conferred by entry 42 of List II of the Government of India Act, 1935, upon the Provincial Legislatures is saved by article 372 of the Constitution as existing law, but by the combined operation of sub sections (1) and (2) of section 33, the Bihar State is incompetent to tax sales of goods in the course of imports into and exports out of the territory of India, and after March 31, 1951, sales of goods in the course of inter State trade or commerce. In view of the exposition of the content of the Explanation to article 286(1)(a) by this court in the United Motors case (1), the Bihar State is also incompetent to tax " Explanation sales " where the goods are delivered in another State as a direct result of the sale for consumption in that State. By this last ban, to the extent provided by subs. (1)(a)(i) and sub section (2) of section 33, the State of Bihar is deprived of its power to tax sales; but the ban does not wholly extinguish the power of the State to tax sales relying upon a real territorial nexus between the sale and the State. In other words, by enacting that a tax shall not be imposed under the Act when the sale takes place outside the State of Bihar in section 33(1)(a)(i), only the power to tax " Explanation sales " which do not take place within the State of Bihar in taken away, but not the power to tax " non Explanation sales " in which though under the general law of sale of goods the property passes outside the State, there exists between the taxing power of the State and the sale a nexus as contemplated by the definition of sale in section 2(g). If the sale is one in which the goods have been delivered outside the State of (1) ; 294 Bihar, but not as a direct result of the sale or not for the purpose of consumption in the State of first delivery, the sale will not be covered by the Explanation, and the right to tax the sale, if arising otherwise under the Act relying upon the territorial nexus, will not be impaired by the prohibition imposed by cl. (1)(a)(i) of section 33. The right of the State of Bihar to tax a sale relying upon a real territorial nexus not being impaired by section 33 of the Act, all sales as defined by section 2(g) of the Bihar Sales Tax Act are liable to be taxed, except those falling within section 33(1)(a)(ii), section 33(2) and " Explanation sales " outside the State of Bihar. The appellant company carries on the business of manufacturing copper and other mineral products in the State of Bihar. It has its registered office and its place of business in the District of Singhbhum in the State of Bihar and is registered as a " dealer " under the Bihar Sales Tax Act, 1947. The appellant company sent out its products to various places in India in the year of assessment ending on March 31, 1950 and has paid the tax assessed by the Sales Tax Officer. The appellant is now seeking to obtain a refund of the tax paid for the period between January 26 and March 31, 1950, on the plea that the tax was paid under a misapprehension of the law. The High Court in an application under article 226 of ' the Constitution directed the Sales Tax authorities to refund so much of the tax as was not proved to have been paid in respect of sales of goods delivered and consumed in the State of first destination. On the goods delivered and consumed in the State of first destination outside Bihar, the appellant could not be called upon to pay sales tax. That is undisputed. The appellant also claimed that on the goods delivered for consumption in the State of first delivery outside Bihar, it was not liable to pay sales tax, even if there was no evidence to prove that the goods were in fact consumed in such State. In our judgment, the High Court was in error in directing that the exemption provided by article 286(1)(a) read with the Explanation which was at the material time incorporated by section 33 in the Bihar Sales Tax Act by the Adaptation of 295 Laws Order, 1951, only applied to all sales of goods delivered and consumed in the State of first destination. If the goods were delivered for consumption, it is immaterial whether they were in fact consumed in the State where they were delivered. The power of the State to levy sales tax relying upon the territorial nexus between the taxing power of the State and the sale, is impaired for reasons already set out to the extent to which it is restricted by the incorporation of article 286(1)(a)(i) and the Explanation thereto, in that Act. Therefore, sales effected on or after January 26, 1950, where goods are as a direct result of the sale delivered in another State for consumption in that other State, are not liable to be taxed. The directions issued by the High Court will therefore be modified as follows: The order of the Superintendent of Taxes is set aside. He is directed to grant refund of tax paid in the light of this judgment. The appellant will be entitled to exemption from payment of tax if the goods are, as a direct result of the sale, delivered in another State for the purpose of consumption in that State. Appeal dismissed subject to modification.

By a notification dated November 2, 1864, a piece of land forming part of the Panchannagram Estate which was permanently settled under Regulation 1 of 1793, was acquired by the Government of Bengal at the instance of the justices of the Peace for the Town of Calcutta, which was a corporation established under the provisions of the Calcutta Municipal Act, 1863, and the justices were required to pay the compensation payable to the proprietor of the Estate. After the acquisition, the proprietor of the Estate was granted abatement of land revenue assessed on the Estate to the extent of Rs. 386 7 1, being the proportionate land revenue on the land acquired. On October 27, i865, the Government called upon the justices to pay a sum of Rs. 7,728 13 8, which represented the amount capitalised at 20 years ' purchase of land revenue attributed to the area acquired. On December 5, i870, the Secretary of State executed in favour of the justices of the Peace a conveyance of the land acquired, which stated, inter alia, that it was "ever free and clear and for ever discharged from all Government land revenue whatever or any payment or charge in the nature thereof to the end and intent that the said land may be used for a public purpose, namely, for the conservancy of the town." On January 23, 1880, a lease of the land was granted by the Justices to the predecessors in title of the appellant, under which the lessee had the right to carry on cultivation with the aid of sewage. Before the income tax authorities the appellant claimed that the agricultural income derived by him from the land was not liable to income tax, but the claim was rejected on the ground that on the payment of a lump sum in 1865 the liability to pay land revenue was redeemed and no land revenue was demanded thereafter; consequently, the income derived from the land was not agricultural income within the meaning of section 2(1) of the Indian Income tax Act, 1922, and was not, therefore, exempt from tax. The appellant 's contention was that the redemption only saved the justices from liability for payment but did not affect the assessability of the land to revenue under Regulation 1 of 1793. 599 Held, that by the down payment of a lump sum in 1865 the entire land revenue to be recovered from the land was redeemed and the land became free from land revenue assessment in perpetuity, as completely as if there was no assessment. Thereafter, the land could not be said to be assessed to land revenue within the meaning of section 2(1) of the Indian Income tax Act, 1922, and, consequently, the income derived therefrom could not be considered to be agricultural income under that section. The Collector of Bombay vs Nusserwanji Rattanji Mistri and others; , , distinguished.

Civil Appeal Nos. 2049 and 3 128 of 1979. From the Judgment and order dated 2.3.1979 of the High Court f Patna in C.W.J.C. NO.1820 of 1977. Dr. Y.S. Chitale, S.S. Javali, Narendra Prasad and Ranjit Kumar for the Appellants. 412 S.N. Kacker, and L.N. Sinha D. Goburdhan, M.L. Verma and A Dalip Tandon for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. These two appeals are by special leave. They are directed against the same judgment of the Patna High Court in an application under Article 226 of the Constitution filed by respondents 6 to 51 of Civil Appeal No. 2049 of 1979. In the Writ Petition the aforesaid respondents impleaded the State of Bihar and certain public officers as also all others who were included in the gradation list for purposes of seniority in the combined cadre of engineers in the Department of Agriculture. The other appeal is by the State of Bihar and its public officers and both the appeals challenge the correctness of the decision of the Division Bench of the High Court. Both the appeals are disposed of by this judgment. There were three different wings of engineers in the Department of Agriculture being Irrigation, Minor Irrigation and River Valley Projects. On 9th January, 1969, the State Government amalgamated the cadre of engineers and other employees of the Irrigation and the River Valley departments. Engineers and other employees of the Minor Irrigation wing were, however, not amalgamated. On 17th November, 1969 the Directorate of Minor Irrigation was made permanent and the State Government created a distinct and permanent cadre of overseers who came to be known as Junior Engineers. 191 permanent posts of overseers were sanctioned. Discussions were held and committees were appointed for the purpose of merging the Minor Irrigation wing with the other two wings which had already been amalgamated in 1969. On 17th May, 1976, the Government ultimately approved the Minor Irrigation wing to amalgamate. On 29th August, 1977, the Engineer in Chief cum Special Secretary, Irrigation Department, circulated a combined final gradation list said to have been prepared, taking into consideration the status of the overseers as obtaining on 9th January, 1969. On 30th June, 1978, an amended combined gradation list was published which was further changed on 18th July, 1978. Respondents 6 to S 1 had already filed their writ application before the Patna High Court being C.W.J. Case No. 1820 of 1977 which the High Court by the impugned judgment dated 2nd March, 1979 allowed. The High Court quashed the orders contained in Annexures 11, 11/1, 12, 13, 13/1, 15 and 16 and called upon the State Government and its officers to prepare a fresh combined gradation list in accordance with the principles laid down in the judgment. 413 The High Court referred to all the materials that were placed before it by the different parties and in para 17 of the judgment came to the conclusion: "From the discussion of the facts of the case before us, it is clear that the petitioners got their substantive appointments earlier than the respondents concerned and if seniority would have ranked on that consideration, then the petitioners would have ranked senior in the integrated cadre. This was also the recommendation of both the High Powered Committees which suggested that two seniority lists, one for the permanent incumbents and the other for the temporary incumbents, be framed. No specific rule was brought to our notice by either side which could govern the case of the petitioners and the respondents. On the other hand, learned counsel for the petitioners has referred to the instructions issued by the Personnel Department of the State Government to all Principal Secretaries and Heads of Departments etc. in its memo No 3/RI 106/72 F 15784 dated the 26th August, 1972. Clause 3(vii) thereof provides that in the event of amalgamation of cadres seniority is determined with reference to the date of appointment in the particular grade on substantive or continuous officiating basis, whichever is earlier, without. however, disturbing the inter se seniority of incumbents in any group of posts as amongst themselves in that process. No other rule was brought to our notice on behalf of either the learned counsel appearing for the State or the contesting respondents. An attempt had been made before the High Court to rely upon the executive instructions issued in a Government resolution (Annexure 9). The High Court found that the circular had got no application to the case before it and it related to secretariat assistants. The High Court was not prepared to act upon it because it was not laying down any general principles. According to the High Court: "Substantive appointment in a service gives the incumbent a right and if that cannot be taken away by a temporary incumbent of the same department, we do not see why that right should be allowed to be taken away if a question of integration or merger comes in by such incum 414 bents who were similarly temporary and thereby junior to the permanent employees. In our opinion. therefore, the gradation list in this case (Annexure 12) is violative of the principles contained in Articles 14 and 16 of the Constitu tion and impinges upon the civil rights of the petitioners, making them several hundreds places junior in the integrated or combined cadre on a basis which cannot, in any view of the matter, be said to be reasonable in the light of the principles discussed in the aforesaid authorities. " It is not in dispute that the three wings, though under the administrative control of the Agricultural Department, were separate before amalgamation. As already pointed out, permanent posts had been sanctioned in the Minor irrigation wing to which the petitioners before the High Court belonged and they were appointed on permanent basis. The High Powered Committees had taken all aspects into consideration and had recommended relevant aspects to be kept in view to regulate seniority in the merged cadre. When integration takes place and officers in different cadres are merged into one, there is bound to be some difficulty in the matter of adjustment. That obviously has occurred here. The High Court has found that the petitioners before it had held, on the basis of confirmation, permanent posts and on that basis directed that the combined seniority list should be prepared taking dates of substantive appointments as the basis for fixing inter se seniority. That indeed might create problems because depending upon availability of opportunities in the different wings, confirmation may have been granted while in the absence of the same, though officers in the other wings may be senior they may not have been confirmed. The approach of the High Court has been, as extracted above by us, that if within the cadre earlier confirmation gives seniority why should that basis be not extended to the combined gradation list. This may not be applicable in every situation particularly when there is a merger of cadres and the combined gradation list is proposed. It is a well settled position in law that seniority would ordinarily depend upon length of service subject, of course, to rules holding the field. That view has been taken by this Court in several cases and it is unnecessary to refer to all of them. In A. Janardhana vs Union of India & Ors., ; the situation was somewhat the same as here. The Court found that the method adopted for fixing seniority overlooked the character of appointments and pushed down persons validly appointed below others who had no justification to be given higher place. At page 960 of the Reports, the Court observed: 415 "It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16. " We may also refer to a very recent decision of this Court in K.S. Vora & ors. vs State of Gujarat & Ors., [1987] 4 Judgment Today 179. The High Court recorded a finding that there is no applicable rule in the matter of fixing inter se seniority in a situation of this type. In the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. We would like to add that in regard to the Supervisors (now called Junior Engineers) serving in the three wings there is no dispute of the grade being the same. While we do not agree with the High Court that confirmation should be the basis and would substitute it by the length of service test, we would uphold the direction that in fixing the combined gradation list the inter se seniority of the incumbents in their respective departments would not be disturbed. Even if this be the test, the gradation list as published by Government has to be modified. We would accordingly confirm the conclusion of the High Court that Annexures 1 1, 11/1, 12, 13, 13/1, 15 and 16 should be quashed and a fresh combined gradation list has to be published. We have altered the lest for fixing the seniority inter se generally but we have approved the direction of inter se seniority in their own departments to be respected. The respondent State and its officers are directed to prepare and pubIish the fresh combined gradation list keeping the aforesaid directions in view. Both the appeals are allowed to the extent indicated above. Parties shall bear their own costs throughout. S.L. Appeals allowed.

% The 1st respondent was appointed as a Lecturer in the appellant College on 26th July, 1971 and was placed under probation for one year. He was informed by a letter dated 28th March, 1972 that his services were no longer required and would stand terminated with effect from the afternoon of 30th April, 1972. The 1st respondent challenged the aforesaid termination order by a writ application contending that his appointing authority was "The Managing Committee or the Governing Body" of the College, and as such the order of termination of his services by the Principal of the College was without jurisdiction. The writ application was contested on behalf of the Appellant by contending that the Principal who was the Ex officio Secretary was the appointing authority and was vested with the power to terminate the appellant 's services. On behalf of the director of Public Instruction, who was also a party to the writ application, it was stated that both the orders of appointment and termination h ad been passed by the Governing Body and the Principal who communicated the same to the 1st respondent was acting on behalf of the Governing Body, and that the DPI was not concerned with the termination orders passed before 3rd of May, 1972 the date from which 1974 Amendment of the Orissa Education Act, 1969 took effect, and that the DPI had no power to look into the matter. The High Court rejected the objection to the maintainability of the writ application on the ground that the College was a private institution, and held that in view of the provisions of the orissa Education Berhampur University Act 1966 and the Berhampur university Statutes 1966, the college must be considered to be a statutory body amenable to the writ jurisdiction. It held that, "undoubtedly until confirmation petitioner had no right to the post and during the period of probation he could be turned out from his service", but in view of the language of the appointment letter and the termination order both the orders have been passed by some authority other than the Principal and the Principal was merely a communicating agent. It opined that the termination order did not emanate from the Governing Body of the College which alone had the power to terminate the services of a teacher, and as such held that the termination order was issued without jurisdiction. The writ application was allowed, and the 1st respondent was declared to have continued in service. Allowing the appeal by the College, this Court, ^ HELD: l. The writ petition was founded on the assumption that it was the Principal who had passed the termination order by himself and that he had no jurisdiction to do so. Instead of merely pointing out that it was not so, the affidavit on behalf of the College made a confused statement forgetting that the Principal was only one of the members of the Governing Body. Both sides, thus, misrepresented the situation before the Court.[711D E] 2. Although it is permissible for a tribunal to accept part and reject the rest of any witness 's testimony, so far as admission in pleading is concerned, it cannot be so dissected. It may be accepted as a whole or not at all. [7l2A B] M.M. Essabhoy vs M. Haridas, AIR 1915 PC 2 referred to. The case of the College had been that both the appointment and the termination orders were given by the Principal. This plea is of course incorrect but for that reason the statement by the College cannot be truncated and part of it accepted while rejecting the other part. It had to be accepted as a whole or not at all. [711H] 4. The finding and the assumption made by the High Court that the termination order was passed by an authority other than the appointing authority being not supported by any material whatsoever on the record has to be set aside. [712B] 5. The burden of proving the necessary facts for grant of relief 709 was on the writ petitioner which was not discharged. The writ application was, therefore, bound to fail. The decision of High Court is set aside, and the writ petition dismissed. [712B C]

Appeal No. 2203 of 1966. Appeal by special leave from the judgment and order dated November 8, 1965 of the Judicial Commissioner 's Court, Tripura in Writ Petition No. 27 of 1961. M. K. Ramamurthi and Shyamala Pappu, for the appellant. V. A Seyid Muhammad, section P. Nayar and B. D. Sharma, for the,respondents. 640 The Judgment of the Court was delivered by Shah, J. The appellant joined the Tripura Civil Service on October 30, 1949, and was posted as a probationer Divisional Purchasing Officer, Dharmnagar. In 1953 the Tripura Civil Service was split into two cadres senior officers being absorbed as Sub Divisional Officers and junior officers as Sub Treasury Officers. The appellant was absorbed as Sub Treasury Officer with effect from April 1, 1950. On May 10, 1954, the appellant was appointed officiating Sub Divisional Officer with effect from September 10, 1953. By order dated May 12, 1954, the appellant was reverted to the post of Sub Treasury Officer with effect from May 6, 1954. The appellant made several representations to the Chief Commissioner but without success. The appellant was suspended by order dated May 6, 1957, for failure to obey the orders of the Additional District Magistrate and he was dismissed with effect from July 3, 1958, by the order of the Chief Commissioner. The appellant moved a petition in the Court of the Judicial Commissioner at Tripura challenging the orders of suspension and dismissal. On February 19, 1960 the Court set aside the impugned orders. By order dated November 7, 1960 the Chief Commissioner reinstated the appellant to the post of Superintendent of Surveys and by the same order reverted him to his substantive post of Sub Treasury Officer with retrospective effect, from June 7, 1957. The appeal of the appellant to the President having been rejected, he moved a petition in the Court of the Judicial Commissioner for a writ quashing the orders dated May 12, 1954 and November 7, 1960. The appellant contended that in order of reversion cannot be made to have retrospective operation. The petition insofar as it relates to the first order was belated. Again there is no ground for holding that retrospective operation was in fact given to that order of reversion. By the order dated May 12, 1954 the appellant was reverted to the post of SubTreasury Officer, but the order did not state the date from which the order was to be effective. In summarising the averments made in the petition, the Judicial Commissioner stated that the petitioner had alleged that the order dated May 12, 1954, was to have effect from May 6, 1954. A copy of that petition is not filed in this Court and we are unable to accept, especially having regard to the terms of the order, that any retrospective operation was sought to be given. In any event the Judicial Commissioner was justified in refusing to entertain any contention as to the validity of the order of reversion made nearly seven years before the date on which the petition was filed, 641 The second order dated November 7, 1960, passed by the Chief Commissioner consists of two parts (i) that the appellant be reinstated in the post of the Superintendent of Surveys with effect from the afternoon of May 7, 1957; and (ii) that the appellant be reverted to the substantive post of Sub Treasury Officer with retrospective effect from June 7, 1957. The appellant, as already stated, was suspended on May 6, 1957. The order of suspension and the order of dismissal which followed it were set aside by the Judicial Commissioner, and the Chief Commissioner therefore reinstated the appellant with effect from the afternoon of May 7, 1957 to the post occupied by the appellant on the date on which he was suspended. But the appellant was not holding the post of Superintendent of Surveys substantively : he was merely officiating in that post. He was therefore reverted with effect from June 7, 1957 to his substantive post. The order was passed because the post was filled by another officer approved by the U.P.S.C. Counsel for the appellant relied upon the observations made by section R. Das, C.J., in Parshotam Lal Dhingra vs Union of India(1) : "But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponment of his future chances of promotion. then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty." These observations. in our judgment, do not assist the appellant. The order reverting the appellant from June 7, 1957, to his substantive post does not entail forfeiture of his pay or allowances or loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion, (1) , 863. 642 Counsel for the appellant urged that whenever a person is reinstated as from the date on which his services were terminated he must be restored to the same office which he was holding at the date of the termination of employment or suspension and must receive salary upto the date of reinstatement which that office carried. We find no warrant for the submission. If the appellant had not been suspended, it was open to the Chief Commissioner still to revert him to his substantive post. We see no reason for holding that the Chief Commissioner could not do so when he reinstated the appellant. There is no ground for thinking that the order was made maliciously. The reason for reversion was that since June 7, 1957 another officer was occupying the post of the Superintendent of Surveys. The post having been already filled, the appellant cannot claim that when he was reinstated lie should have been paid emoluments attached to the office of Sub Divisional Officer on the footing that he continued to occupy that office which he was holding in an officiating capacity. The appeal therefore fails and is dismissed. Having regard to the circumstances of the case there will be no order as to costs. V.P.s. Appeal dismissed.

A mortgagor applied to the Claims Officer under section 19 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act 1 of 1951 for determination of the debt due to the mortgagee and for scaling down the debt. The mortgagee contended that the debt, by adjudication of court, had been merged into a decree and there was no secured debt which could be determined or scaled down. The Claims, Officer held that there was a debt due to the mortgagee, that it was a secured debt and that he had jurisdiction for "determining the debt" and directed the mortgagee to submit a statement of the claim under section 22 of the Act. On appeal by the mortgagee, the Board of Revenue, following the judgment of the High Court in Ramkishan vs Board of Revenue, Madhya Pradesh I.L.R. , held that the Claim Officer had 'no jurisdiction to decide whether the debt was a secured debt. Upon the High Court overruling Ramkrishna 's case in Jethalal Bhawanji vs Prabhakar Sadasiv I. , the mortgagee field a statement of his claim before the Claims Officer. The mortgagor contended that the debt stood discharged under section 22 of the Act as the mortgagee had failed to file a statement of his claim as originally directed by the Claims Officer. The Claims Officer upheld the contention. The Commissioner in appeal set aside the order of the Claims Officer discharging the debt and a petition in the High Court against the Commissioner 's order was summarily dismissed. Dismissing the appeal to this Court, HELD : Section 22 enacts a penal provision and unless the conditions precedent are satisfied, the debt could not by operation of the statute be discharged. In the present case the order of the Claims Officer was reversed by the Board of Revenue, and all directions given by the Claims Officer, pursuant to his order calling upon the mortgagee to file a statement of his claim, stood annulled. Thereafter the Claims Officer did not pass any order under section 22 of the Act 1 of 1951 directing that the proceeding shall continue and further directing that a notice shall issue calling upon the mortgagee to file a statement of the claim. Until a notice, valid in law, directing that a statement be filed was served upon the mortgagee and he failed to comply with it, the debt could not be discharged. [179 G 180 B]

ivil Appeal No. 1945 of 1992. From the Judgment and Order dated 4.1.1991 of th Kerala High Court in C.R.P. No. 1830 of 1990 Mathai M. Paikeday and C.N. Sreekumar for the Appellant. P.S. Poti and Ms. Malini Poduval for the Respondent. The Judgment of the Court was delivered by S.C. AGRAWAL, J. Special leave granted. This appeal filed by the landlord arises out of a petition filed under Sections 11(3) and 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act ') for the eviction of the respondent from the building situate in the city of Cochin. The building in question was let out to the respondent by the father of the appellant on May 1, 1972 and he has been carrying on hotel business on the same. The said building stands on a portion of 13 cent of land owned by the appellant. The appellant was employed with Bharat Gold Mines Ltd. and was due to retire on September 30, 1981. Prior to his retirement, the appellant filed the eviction petition before the Rent Controller, Ernakulam on January 15, 1981 wherein the appellant pleaded that after his retirement from service, he wanted to settle down in Cochin and except the building in question, he has no other house to reside and that the said building was required by him bona fide for his occupation. It was also pleaded by the appellant that the respondent was using the property in such a manner as to materially and permanently reduce its value, utility and purpose. The said petition was contested by the respondent on the ground that the building is not suitable for residential purposes inasmuch as it consists of two adjoining sheds and there is no toilet facility in the same and that it is not possible to reside therein. It was further pleaded that the appellant has a house and plot in the name of his wife within the municipal limits of Cochin Corporation and the same is suitable for the residence of the appellant and his family members and further there is a lot of vacant land on the back of the building and the same is suitable for constructing a house. The respondent denied that the property was being used in such a way as to reduce its utility. By his order dated February 20, 74 1989, the Rent Controller dismissed the said petition of the appellant and found that the appellant had failed in proving his bona fide need of the building and he was not entitled to an order of eviction under S.11(3) of the Act and that he has also failed to adduce adequate evidence to prove that the respondent was indulging in an activity which has destroyed the value and utility of the property materially and permanently and he could not seek eviction under Section 11(4)(ii) of the Act. The said order of the Rent Controller was reversed in appeal by the Appellate Authority by its judgment dated July 18, 1990. The Appellate Authority agreed with the finding recorded by the Rent Controller that the appellant could not seek the eviction of the respondent under s.11(4)(ii) of the Act but it disagreed with the finding of the Rent Controller that the respondent was not liable to be evicted under S.11(3) of the Act. The Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him. On revision under S.20 of the Act, the High Court, by its judgment dated January 4, 1991, set aside the finding recorded by the Appellate Authority regarding the bona fide need of the building for his occupation and agreed with the view of the Rent Controller that the appellant had failed to establish that he was entitled to evict the respondent on the ground of bona fide need under s.11(3) of the Act. Feeling aggrieved by the said decision of the High Court, the appellant has filed this appeal. As indicated earlier, although the appellant had sought eviction of the respondent under s.11(3) as well as s.11(4)(ii), but the Rent Controller and the Appellate Authority have both found against him on s.11(4)(ii). The scope of the present appeal is confined to the question whether the respondent is liable to be eviction on the ground of bone fide need of the appellant for his personal occupation under s.11(3) of the Act. Sub section (3) of s.11 of the Act and the second proviso thereto provide as follows: "(3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: XXX XXX XXX Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such 75 tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: XXX XXX XXX" At this stage, it may also be mentioned that in exercise of its revisional jurisdiction under s.20 of the Act, the High Court can "call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order of proceeding and may pass such order in reference thereto as it thinks fit". It is no doubt true that the scope of the revisional jurisdiction conferred under s.20 is wider than that conferred under s.115 CPC. But at the same time, a revision under s.20 cannot be equated with an appeal. Moreover, the revision power conferred under s.20 also embraces an order passed by the Appellate Authority. While considering the provisions conferring revisional power couched in a language similar to that contained in section 20 of the Act, this Court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings. [See : Dattonpant Gopalvarao Devakate vs Vithabrao Maruthirao Janagaval, [1975 Supp. SCR 67; M/s Sri Raja Lakshmi Dyeing Works & Ors vs Rangaswamy Chettiar, AIR 1980 SC 1253]. The revisional Court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted of and supported the one reached by the court below. [See : Rajbir vs section Chokesiri & Co., ; , at p.37] In the instant case, the Appellate Authority, after considering the evidence on record, has found that the appellant had retired from service and he has no building of his own in the city. The Appellate Authority has further found that before the building was let out to the respondent the same was being used for residential purposes and the mere fact that it lacks in certain facilities for being used for residential purposes by itself will not indicate that the claim of the appellant is false and from the evidence on record, it would appear that after some modifications and repairs it can be 76 used as a residential building. In view of the decision of the High Court in Devaky vs Krishnakutty, (1987) 1 Ker. L.T. 671, the Appellate authority held that the appellant could claim eviction of the building under s.11(3) even if the building in question requires some modifications or alterations provided that he is able to establish the bona fide need set up by him. The Appellate Authority also held that merely because the appellant was residing comfortably in a building owned by his son would not disentitle him from seeking eviction on the ground that he wants to set up his residence under a roof of his own and that such a desire was quite natural. The Appellate Authority also observed that the testimony of appellant, as P.W> 1, with regard to his bona fide requirement of the building for his residence could be believed and the mere bald assertion of the respondent, as R.W.1, that there was no bona fide need on the part of the appellant, by itself, was not a sufficient ground to disbelieve the testimony of the appellant. In the light of the aforesaid finding, the Appellate Authority held that the appellant had succeeded in establishing the bona fide need set up by him. The High Court, in exercise of its revisional power, has set aside the aforesaid findings recorded by the Appellate Authority for the following reasons: (1) The appellate Authority had erroneously proceeded on the basis that there is no pleading by the respondent that the bona fide requirement set up by the appellant is false; (2) Instead of examining severally the circumstances relied upon by the Rent Controller and to see whether they were sufficient to support the finding of the Rent Controller, the Appellate Authority should have considered the cumulative effect of all the facts and circumstances established in the case on the question of bona fides of the claim made in the petition; and (3) The Appellate Authority had totally omitted to consider whether the respondent tenant was entitled to the benefit of the second proviso to sub section (3) of s.11 of the Act. On a consideration of the pleadings and evidence the High Court found that the appellant is the owner of 13 cents of land and only a small portion of the said land in occupied by the buildings and the remaining 77 land is lying vacant behind the building and structures sought to be recovered and the appellant can construct a house over it. The High Court has also found that the appellant is living in reasonable spacious residential accommodation with modern amenities with his son and it is difficult to believe that the claim as put forward by the appellant in the petition is honest in the circumstances of the case. The High Court further held that the building sought to be recovered is admittedly used for commercial purposes from 1971 onwards and it is a 'L ' shaped structure consisting of two halls and a temporary shed which is being used as the kitchen of the hotel and there is no latrine or bathroom in the building and that in view of the nature, location and structural peculiarities of the buildings, absence of essential amenities like latrine, bathroom and privacy, the very limited space available for occupation and the status of the respondent as a person who retired after a period of 30 years of service as well placed employee of a wellknown company, the assertion of the appellant that he is ready to live in any condition could not be accepted as true and genuine. The High Court was of the view that the principle laid down in the decision in Devaky vs Krishnakutty (supra) would not help appellant in this case. The question whether the building is required bona fide by the appellant for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on record could not be interfered with by the High Court in exercise of the revisional jurisdiction under Section 20 of the Act because it could not be said that the said finding recorded by the Appellate Authority was not supported by the evidence on record. The said finding was reversed by the High Court on the basis of a reassessment of the said evidence. We find it difficult to agree with the reasons given the High Court for embarking on this reassessment of evidence. Although the Appellate Authority has observed that there in no specific pleading by the respondent in the counter that the bona fide requirement set up by the appellant is false but in spite of the said observation the Appellate Authority has examined whether the said claim of the appellant is false and after considering the evidence adduced by both the parties, the Appellate Authority has found that the claim of the appellant is not false. Similarly, the High Court is not right in holding that in its approach to the question of bona fides of the claim made in the petition the Appellate Authority has not considered the cumulative effect of all the facts and circumstances established in the case. On a consideration of the various circumstances the Appellate Authority chose 78 of accept the testimony of the appellant, as P.W.1 as against that of the respondent, as R.W.1 and on that basis found that the appellant had succeeded in establishing the bona fide need set up by him. The consideration which weighed with the High Court in taking a view contrary to that taken by the Appellate Authority do not, in our opinion, justify interference in exercise of revisional jurisdiction. That the appellant has been living with his son in the house belonging to him (son) cannot lead to the inference that the claim of the appellant that he wants to live in a house of his own is false and not bonafide. The same is true about the building in question not having the requisite facilities and being not in a fit condition for residence because the appellant can make suitable repairs and alterations in the same to make it fit for residential purposes. The claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground that the building require repair and alterations before the landlord can occupy the same. In Devaky vs Krishnankutty (supra), it has been observed: :. once the landlord establishes that he bona fide required the building for his occupation or the occupation of any member of his family, he can recover possession of the building from the tenant irrespective of the fact whether he would occupy the same with or without making any alterations." (p.673) We are in agreement with this view which is in consonance with the decision of this Court in Ramniklal Pitambrardas Mehta vs Indradaman Amratlal Sheth, ; In that case, it has been laid down: ". The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonably for his occupation, when he has proved his need for occupying the house. There is no such prohibition either in the language of cl.(g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it. There could not be any logical reason for such a prohibition. "(p.5) Similarly in sub section (3) of section 11 there is no prohibition that 79 a landlord must occupy the house for residence without making any alterations in it. The finding recorded by the Appellate Authority, after considering the pleadings and evidence on record, that the appellant has succeeded in establishing that he needs the building bona fide for his own occupation must, therefore, be restored. The High Court was, however, right in taking the view that before passing a decree for eviction on the ground of bona fide need of the landlord under section 11(3) of the Act, it was necessary for the Appellate Authority to consider whether the tenant was entitled to the benefit of the second proviso to sub section (3) of section 11 of the Act and that the Appellate Authority has omitted to consider the matter from this angle. The said proviso precludes the passing of an order for eviction of a tenant who is depending for his livelihood mainly from the trade or business carried on in such building and there is no other suitable building available in the locality for him to carry on such trade or business. After adverting to the second proviso to sub section (3) of section 11, the Rent Controller has observed: ". The respondent has proved that he is depending upon the income from the business conducted in the petition schedule building for his livelihood. The petitioner attempted to prove that the respondent is having other hotels elsewhere in the city, but without any success. Though the respondent has not taken any steps to prove the non availability of other suitable buildings in the locality by summoning the Accommodation Controller, I do not thing that was a fatal lapse on the part of the respondent because he has adduced evidence in that regard through his witnesses. " The learned Rent Controller has, however, not recorded any definite finding on this question because he had come to the conclusion that the appellant had failed to prove the bona fide need of the buildings. Since the Appellate Authority had reversed the finding recorded by the Rent Controller on bona fide need of the appellant for the building, it was necessary for the Appellate Authority to have considered the matter in the light of the second proviso to sub section (3) of section 11 and it should have recorded a finding on the question whether the respondent could invoke the protection of the said proviso. In the circumstances, we are of the view 80 that the matter should be remanded to the Appellate Authority for considering the question whether the respondent can invoke the protection of the second proviso to section 11(3) of the Act. In the result, the appeal is allowed. The judgment and order of the Kerala High Court dated January 4, 1991 is set aside. The order of the Appellate Authority dated July 18, 1990 to the extent it directs the eviction of the respondent under Section 11(3) of the Act is also set aside and the matter is remanded to the Appellate Authority for considering the matter in the light of the second proviso to section 11(3) of the Act. It is, however, made clear that we are not upsetting the finding recorded by the Appellate Authority that the building is required bona fide by the appellant for his own occupation. The parties are left to bear their own costs. V.P.R. Appeal allowed.

Twelve persons, including the appellants, were challaned for the murder of Sarpanch of a village. Relying on the evidence of P.Ws. 1,2 and 7 in toto and that of P.W.3 to some extent, the Sessions Judge convicted all the accused persons for the offences under Section 302 read with Section 149 I.P.C. and awarded sentence of imprisonment for life and other minor terms of imprisonment for other offences. On appeal, the High Court set aside the conviction and sentence of seven accused persons, namely, A 4, A 5, A 8 to 12 and confirmed the conviction of the remaining five accused persons, A 1, A 6 and A 7 under Section 302 read with Section 149 I.P.C. and sentenced them to imprisonment for life. These five accused filed an appeal, by special leave, before this Court. During the pendency of the appeal one of the accused appellants died and as such appeal filed by him was dismissed as having abated. On behalf of the accused persons it was submitted that even if the statement of P.W. 2 was taken to be correct no offence was made out so far as accused A 3 was concerned, inasmuch as P.W.2 had admitted in the cross examination that he did not state the name of A 3 in his statement recorded under Section 164 Cr. P.C., and that the name of A 3 was also not found in Exhibit D 7, the statement of P.W.2 recorded at the inquest, and that since P.W.2 had gone to police station seven or eight times after the incident, there was a possibility of his seeing the accused, A 2 and A 7 in the police lock up and hence the identification parades held had no value. Disposing of the appeal, this Court, HELD: 1.1. There is no infirmity at all in the reasoning and conclusions arrived at by the High Court so far as accused A 1, A 2 and A 7 are concerned.[24 B] 1.2 It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the village. The accused persons belonged to the group headed by A 6, A 7 and the deceased was the leader of the other group. The deceased was given merciless beatings and was done to death in the midnight. He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor. It has also been found established by the trial court as well as by the High Court that A 1 inflicted injuries by an axe and A 2 by a spear and A 7 was among the other persons who inflicted injuries buy a stick. It has also come in the evidence of P.W.19, Inspector of Police, that the accused persons had absconded and after a few days of the incident, on information, he, alongwith mediators, visited the village and the absconded accused were hiding in the house of A 7. He surrounded the house with hes staff, guarded it and found therein, the twelve persons against whom the case was challaned. It has also been proved by the prosecution that A 7 was the leader of the rival faction against the deceased. [23 F H, 24 A] 1.3. The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws.1 to 4 as eye witnesses of the incident. The High Court has placed implicit reliance on the testimony of P.W.2. a clerk in the deceased 's office, and who had accompanied the deceased in an autorickshaw and seen the incident. There is no infirmity in the Statement of P.W.2 and the High Court has rightly placed reliance on his evidence. [22 D,E] 1.4. P.W.2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7. P.W.2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony. He had identified A 1, A 2 and A 7 in the Court. Their conviction is not based on the identification parade but on the statement of P.W.1 and P.W.2 made during the trial as eye witness. [23 E] 1.5. A perusal of the statement of P.W.2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr. and also in his statement, Exhibit D 7, recorded at the inquest. In the circumstances, the circumstances, the accused A 3 is also entitled to the benefit of doubt. [22 G] 1.6. In the result, A 3 is acquitted of all the charges levelled against him, and the conviction and sentence of the other appellants, A 1, A 2 and A 7 are confirmed. [24 c]

ivil Appeal No. 673 of 1986. From the Judgment & Order dated 17.2.1986 of the Madhya Pradesh High Court in Election Petition No. 41 of 1985. S.S. Khanduja, Y.P. Dhingra and B .K. Satija for the Appel lant. Mrs. J. Wad for the Respondent. The Judgment of the Court was delivered by KASLIWAL, J. This appeal under Section 116 A of the Representation of People Act, 1951 (in short "the Act") is directed against the Judgment of the High Court of Madhya Pradesh dated 17th February, 1986. Election of Legislative Assembly of the State of Madhya Pradesh was held in the month of February, 1985. One of the Constituencies was No. 14 Lahar (District Bhind). The nomination papers were filed before 6th February, 1985 and the scrutiny was done on 7th February, 1985. Several persons filed their nomination papers. The nomination paper of Ramprakash was rejected by the Returning Officer in the scrutiny. The order passed by the Returning Officer rejecting the nomination paper reads as under: "Candidate is not identified as per electoral roll. His representative has accepted this mistake also. Hence reject ed. Advised for correction but did not correct. The candi date did not correct after advising to correct mistake. Even did not appear at the time of scrutiny to correct mistake. Hence rejected. See section 33(4) R.P.A." Result of the election was declared on 5th March, 1985 and Shri 506 Mathura Prasad appellant declared elected. Ajeem Khan one of the voters of the Constituency filed an election petition under Sec. 88 of the Act challenging the election of Mathura Prasad on several grounds but it is not necessary to state all the grounds as the controversy in the present appeal centres round the wrongful rejection of the nomination paper of Ramprakash. The ground in this regard taken in the election petition was that the nomina tion paper of Ramprakash was wrongly rejected as the defect in his nomination paper was not of a substantial character. It was alleged that in the nomination paper filed by Rampra kash the column meant for stating the candidate 's serial number in the electoral roll was left blank. 1t was thus alleged that the said defect was not of a substantial char acter and the nomination paper should not have been rejected in view of the provisions contained in Section 36(4) of the Act. On the other hand the case of Mathura Prasad, the elect ed candidate was that neither Ramprakash nor any other person on his behalf was present before the Returning Offi cer when the nomination paper of Ramprakash was taken up for scrutiny. At the time of scrutiny, the Returning Officer had pointed out that voter number was not mentioned in the nomination paper and Jaiprakash (RW.3) who 'was the proposer of Ramprakash had told the Returning Officer that he would inform Ramprakash regarding the above defect. The Returning Officer then put that nomination paper aside and took other nomination papers for scrutiny. Jaiprakash remained present in the hail awaiting the arrival of Ramprakash. The Return ing Officer after scrutinising all the other nomination papers again called out the name of Ramprakash. As Rampra kash had not arrived till then, Jaiprakash left the hall after informing the Returning Officer that he would fetch Ramprakash. Jaiprakash left the place and went in search of Ramprakash but his efforts to search Ramprakash went in vain and he did not return back before the Returning Officer. In view of the above circumstances, the Returning Officer passed the order rejecting the nomination paper of Rampra kash under sec. 33(4) of the Act. On the pleadings of the parties Learned Single Judge of the High Court who tried the election petition framed Issue No. 1 in this regard which reads as under: (i) Whether rejection of the nomination paper of Ramprakash by the Returning Officer was illegal, as alleged? 507 Both the parties lead evidence in support of their case. The petitioner in support of his case regarding the above issue examined himself, Mitthookhan, Gourishanker and Pahalwan. By the evidence of the aforementioned witnesses a story was put forward that shortly before the nomination paper of Rampra kash was taken up for scrutiny, Ramprakash had gone out for passing urine. He had left behind Mitthookhan as his repre sentative and when the nomination paper of Ramprakash was taken up for scrutiny and the defect was pointed out, Mit thookhan after informing the Returning Officer went out for calling Ramprakash. He alongwith Ramprakash returned back after five minutes only but the nomination paper had already been rejected by the Returning Officer. On the contrary Mathura Prasad examined himself and Jaiprakash who was not only the proposer of Ramprakash but was also his cousin. Jaiprakash fully supported the case of Mathura Prasad. Learned Single Judge after analysing the evidence of both the parties arrived to the conclusion that the entire story as advanced by the election petitioner and his wit nesses was obviously a fabrication. He further held that such story being fabricated it deserved to be rejected outright. He further observed as under: "The versions of the respondent (R.W. 1) are corroborated not only by the returning officer Shri Hoshiyarsingh, exam ined by the petitioner himself as P.W. 1, but also by the petitioner 's cousin Jaiprakash (R.W. 3) who was also his proposer and the evidence is also consistent with the grounds of rejection stated by the returning officer in his order. The returning officer Shri Hoshiyarsingh (P.W. 1) is an independent witness and Jaiprakash (R.W. 3), who is cousin and proposer of Ramprakash (P.W. 4), also has no reason to tell lies. I, therefore, see no reason to disbe lieve the versions of the respondent (P.W. 1) as to what transpired when the nomination paper of Ramprakash (P.W. 4) came up for scrutiny and under which circumstances it was rejected by the returning officer". After recording the above finding the Learned Single Judge took into consideration the fact that in the nomination paper of Ramprakash, his name, his father 's name, his postal address, the number and name of the Constituency to which nomination paper related and the 508 number of the part of the electoral roll of the same con stituency in which part his name was entered as a voter were duly and correctly filled up. It was further observed that Exhibit P. 1 a certified copy of that part of the electoral roll showed that the total number of voters registered therein was 10 11 and the name of Ramprakash was entered therein at serial No. 735. At the time of scrutiny, the Returning Officer must have naturally been assisted by some members of his subordinate staff. Learned Single Judge further observed that according to the Returning Officer himself the nomination paper was put of by him in the midst of the scrutiny proceedings and it was rejected subsequently after the scrutiny of all other nomination papers was over. There was thus ample time to locate the serial number of the candidate in the above mentioned part of the electoral roll. The Returning Officer had admitted that no effort was made by him to locate it. Learned Single Judge thus concluded that it was not the contention of the Returning Officer that it was not possible for him to locate the name of Ramprakash in the electoral roll and find out his serial number but in fact the Returning Officer made no effort in this regard. Learned Single Judge distinguished a decision of this Court in Lila Krishan vs Mani Ram Godara & Ors., [1985] Suppl. S.C.R. 1 592. He further held that candidate 's absence was immaterial and the Returning Officer could have himself found out the electoral number of the candidate Ramprakash readily with a very little effort by referring to the elec toral roll part mentioned in the nomination paper and the same being also available with him at the time of scrutiny the electoral number could have been found out without the assistance of any of the persons mentioned in Sec. 36(1) of the Act and the defect in the nomination paper cannot be held to be of a substantial character. Issue No. 1 was thus decided in favour of the petitioner Ajeem Khan and as a result of which the election petition was allowed and the election of Mathura Prasad was declared void. Aggrieved against the decision of the High Court, Mathu ra Prasad the winning candidate filed the present appeal before this Court. We have heard learned counsel for both the parties and in our view this appeal has to be allowed. As already mentioned above the Learned Single Judge himself did not accept the story as put forward by the petitioner Ajeem Khan, rather it was held that the entire story narrated by him was a fabrication and the same de served to be rejected outright. The Returning Officer who was an independent witness and Jaiprakash who was a proposer of Ramprakash were believed and it was held that the entire 509 circumstances under which the nomination paper of Ramprakash came up for scrutiny and was rejected were correct. Thus a perusal of the circumstances put forward by these witnesses at the time of scrutiny and rejection of the nomination paper of Ramprakash shows that Ramprakash himself was not present and even his proposer Jaiprakash after having gone to fetch Ramprakash did not return back and ultimately the Returning Officer rejected the nomination paper of Rampra kash. The order passed by the Returning Officer rejecting the nomination paper of Ramprakash clearly makes a mention that the candidate was not identified as per electoral roll. His representative had accepted the mistake also and was advised for correction but did not correct the same. The candidate did not correct after advising to correct the mistake. It further makes a mention that the candidate even did not appear at the time of scrutiny to correct the mis take. In the circumstances mentioned above we have no hesi tation at all in holding that the Returning Officer was perfectly justified in rejecting the nomination paper of Ramprakash. It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature. It is correct that the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature, where the identity of the candidate can be ascer tained by him on the material made available to him. He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect. However, in case neither the candidate nor his representative be present and without removing such defect in the nomination paper the identity of the candidate cannot be ascertained, then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the Material placed before him and to remove such defect himself. We may also refer to some cases cited before us at the bar. Dalip Kumar Gon vs Durga Prasad Singh, AIR 1974 SC 2343 is the case on which strong reliance has been placed by Learned counsel for Ajeem Khan. In the above case in the column of printed nomination form meant for making a decla ration of the candidates of the Scheduled Caste/Tribe con testing for a reserve seat, Abdul Hamid contesting from general constituency had not (a) filled his specific caste in the blank meant for that purpose and further (b) he had in that column left the words 'Scheduled Castes ' unscored. The Returning Officer rejected the nomination papers on the ground that the failure of the candidate to delete the words 'Scheduled Castes ' means that "he belongs to Scheduled Caste which is not true" and consequently, the 510 nomination papers were not filled up properly. An electoral of the constituency filed an election petition on the ground that the nomination papers of Abdul Hamid and Khatir Ali had been improperly rejected. Learned Single Judge of the High Court upheld the above rejection of nomination paper by the Returning Officer and held that the candidate 's filling of these enteries were on the face of it, not proper and did not comply with the requirements of law. It was further held that this defect was not trivial or technical but of a substantial character. On appeal before the Supreme Court the Judgment of the High Court was set aside and it was held as under: "The High Court 's view that in scoring out only the word 'Jan Jati ' (tribe) and leaving the word 'Jati ' (caste) untouched in the aforesaid column of the nomination form, Abdul Hamid had failed "to comply with the requirement of the law on the subject" 'was entirely misconceived. It overlooked the fact that the Jamtara Constituency was a 'General ' Constituency and the seat for which the candidates wanted to contest the election was not a Reserved seat. Section 33(2) of the Representation of the People Act, 195 1, or any other statutory provision does not enjoin upon a candidate who is contesting the election for a General Seat, and not for a Reserved Seat, to specify in his declaration his caste or tribe. Further, the 'Returning Officer appear ing as R.W. 2, had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs.250 as security. The omission to strike off the column in the printed nomination form relating to Sched uled Caste/Tribe did not amount to a defect in the eye of law, much less was it a defect of a substantial character, warranting rejection of the nomination papers in Amolak Chand vs Raghuveer Singh, ; 1968 SC 1203. The nomination papers of two candidates contesting for a general constituency were rejected on a similar ground. Holding that the rejection was improper, Ramaswami, J. Speaking for the Court stated the law on tile point thus: "The printed form 2 A is meant both for general and reserved constituencies but why it is obligatory for candidates in the reserved constituency to make a declaration in the proper 511 column that he is a member of a particular caste or tribe there is no such rule with regard to general constituency. 33(2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declaration in the proper column but there is no such direction in the statute with regard to the general constituencies. In our opinion, the mention of the caste of the candidate in the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contest ing in a general constituency. In the light of what has been said above, we would, reverse the finding of the High Court and hold that the nomination papers of Abdul Hamid were improperly reject ed by the Returning Officer". In the above case the facts were entirely different and it lends no assistance to the case set up by Ajeem Khan, respondent before us. In the above case it was clearly held that Sec. 33(2) of the Act or any other Statutory provision does not enjoin upon a candidate who is contesting the election for a general seat, and not for a reserved seat, to specify in his declaration his caste or tribe. However, the Returning Officer had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs.250 as security. Thus it was held that the omission to strike of the column in the printed nomina tion form relating to Scheduled Castes/Tribe did not amount to a defect in the eye of law, much less it was a defect of a substantial character. In Brij Mohan vs Sat Pal, ; one Dog Ram had filed his nomination papers for contesting election to the Haryana Legislative Assembly from Jind Constituency. His name was proposed by Ram Pratap, an elector of the Constitu ency. Dog Ram was registered as an elector at serial No. 177 and house number 57 in part 39 of the electoral roll of the constituency whereas his proposer Ram Pratap was registered as electoral at serial No. 313. and house number 6 in part 39 of the same constituency. The name and postal address of Dog Ram were correctly given in the nomination papers but the part of the electoral roll was mentioned as 57 instead of 39 by an inadvertant mistake committed by the person who filed the nomination papers. 512 Similarly in the case of the proposer the serial number of the elector and the members of the constituency were given correctly but the number of his house was wrongly entered in the column meant for the part of the electoral roll. At the time of scrutiny no other candidate or proposer objected to the acceptance of the nomination paper of Dog Ram but the Returning Officer of his own rejected the nomination paper on the ground that particulars of the candidate and the proposer had been wrongly entered in the nomination papers. The High Court considered the question as to whether the nomination paper of Dog Ram was improperly rejected. On the evidence led by the parties the Single Judge found that the candidate Dog Ram and his proposer were registered as voters in the constituency and were qualified to contest the elec tion and propose the candidate respectively. It was further found that errors in regard to electoral roll numbers of the candidates and the proposer in the electoral roll and the nomination paper do not constitute defects of a substantial character as mentioned in the Proviso to Section 33(4) of the Act. Learned Single Judge accepted the evidence of the proposer (P.W.2) to the effect that when he and the candi date presented the nomination paper, the Returning Officer told them that it was in order and that the Returning Offi cer had tripped them into an error and if the Returning Officer had told them that there were some discrepancies in the nomination paper they would have either made corrections then and there and could have gone more fully prepared to make objections at the time of the scrutiny. The High Court in these circumstances allowed the election petition on the ground that the nomination paper of Dog Ram was improperly rejected. On appeal to this Court by the elected candidate it was held that the Returning Officer could not be said to have improperly rejected the nomination paper of Dog Ram. This Court did not believe the evidence of proposer (P.W.2) which was not corroborated by the evidence of any other witness. In the facts and circumstances of the case it was held that the Single Judge was not justified in accepting the evidence of P.W.2 and in holding that the Returning Officer was guilty of tripping the candidate and the proposer by any assertion on his part into anyone believing that there was nothing wrong in the nomination paper. In the above case this Court observed as under: "It is not possible to say generally and in the abstract that all errors in regard to electoral rolls or nomination papers do not constitute defects of a substantial character. They 513 would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer in the electoral roll. If that is not the case, he would be commit ting a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency". "The candidate and,the proposer are always expected to go fully prepared to meet any objection that may be raised by any candidate or even by Returning Officer himself suo motu at the time of the scrutiny and they cannot be expected to go any the less prepared merely because the Returning Offi cer had received the nomination paper without raising any objection. It is at the time of scrutiny which is done in the presence of all concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no estoppel in regard to the statutory duty of scrutiny". In the above case this Court clearly held that the defects would not be of a substantial character only if at the time of scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer in the electoral roll. It no where lays down that it is the statutory duty of the Returning Officer himself to cure the defect at the time of the scrutiny. We cannot read in the above authority, as sought to be argued by the Learned counsel for the respond ent, that in the case before us even though Ramprakash or any other representative on his behalf was not present to cure the defect, still it was the duty of the Returning Officer himself to find out the correct identity of Rampra kash. As already discussed above the learned Single Judge had himself held that the case set up by Ajeem Khan was a fabricated one and the story put forward by the winning candidate Mathura Prasad and his witnesses was correct. From the evidence of Returning Officer it was clear that the defect in the nomi 514 nation paper of Ramprakash was brought to the notice of his proposer Jaiprakash and the nomination paper was not reject ed in the first round. An ample opportunity was given to Jaiprakash to bring Ramprakash but he failed to turn up. The nomination paper was then rejected after the scrutiny of all other nomination papers was over. The Returning Officer in the above circumstances was perfectly justified in rejecting the nomination paper of Ramprakash. Learned Single Judge wrongly distinguished the case of Lila Krishan vs Mani Ram Godara & Ors., [1985] Suppl. 1 S.C.R. 592 (supra). In this case the .election of Lila Krishan from Fatehbad Constituen cy of Haryana Assembly was challenged on the ground that the nomination papers of two candidates being Mani Ram Chhapola and Raj Tilak had been improperly rejected by the Returning Officer. The Proposer of Mani Ram Chhapola was one Brij Bhushan while proposer of Raj Tilak was one Upendra Kumar. Brij Bhushan 's serial number in the electoral roll was 26 while Upender Kumar 's was 77. In form 3A these numbers were correctly indicated but in the nomination papers the numbers had been shown as 126 and 177 respectively. The Returning Officer rejected these nomination papers as the serial numbers of the proposers as disclosed in the nomination papers did not tally with reference to the electoral roll. The High Court set aside the election of Lila Kishan holding that the Returning Officer acted mala fide and had either directly or indirectly been responsible for the alteration in the nomination papers, since the nomination papers when filed were in order and while they were in the custody of the Returning Officer 's establishment, interpolations have been made and on the basis thereof of nomination papers had been rejected. Appeal filed in Lila Krishan was allowed by this Court and it was held that the conclusion of the High Court that the Returning Officer either by himself or through somebody caused the interpolation to be done was totally unwarranted. On the basis of the above facts it was held as under: Indisputably the insistence on disclosure of the serial number in the prescribed column against the proposer is for the purpose of indentifying the proposer and ascertaining that he is competent to propose. The scope of scrutiny is obviously to verify the contents of the nomination paper with a view to ascertaining whether the form is in order and what is required to be complied with by the election law has been duly complied with. This Court has repeatedly held that election proceedings are strict in nature and what is 515 required to be performed in a particular manner has to be done as required or the Rules made thereunder. That is why an exception has been made by inserting Sub section (4) of Sec tion 36 of the Act. Therefore, to cast the obligation of the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law. To read that as an obligation is likely to lead a unworkable posi tion". "In the instant case, no one was available, for instance, when the Returning Officer took up the nomination paper of Mani Ram Chhapola to indicate to the Returning Officer that his serial number in the electoral roll was 26 and not 126. If this had been pointed out and on summary enquiry the identity of Brij Bhushan was not in dispute, there would have been end of the matter. If the correlation has not been made and the Returning Officer has no assistance to fix up the identification it cannot be said to be a defect not of substantial character. Moreover, it could not be statutory obligation of the Returning Officer to scrutinise the elec toral roll for finding out the identity of the proposer when the serial number turns out to be wrong. But if interested and competent persons point out to the Returning Officer that it is a mistake, it would certainly be his obligation to look into the matter to find out whether the mistake, is inconsequential and has, therefore, either to be permitted to be corrected or to be overlooked. When scrutiny was taken up Mani Ram Chhapola and Raj Tilak on their own showing were not present before the Returning Officer. Similarly, the proposers, Brij Bhushan and Upender Kumar were also absent. Though there is evidence on the side of the election peti tioners that the Assistant Returning Officer was present at the time of scrutiny, he as P.W. 4 has categorically denied that fact. The Returning Officer, R.W. 3, has stated that the Assistant Returning Officer was not present when he took up scrutiny on the nomination papers. There is also evidence from the side of the appellant that the Assistant Returning Officer was not present. In the circumstances, if the nomi nation papers have been rejected for mistake in 516 the nomination papers it is the candidates themselves who have to thank their lot and no mistake can be found with the Returning Officer. Therefore, the nomination papers were validly rejected". Thus in the above case it was clearly laid down that to cast an obligation on the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law. In the case before us even if it may be considered for a moment that by making some effort by the Returning Officer, the identity of Ramprakash could have been ascertained, there being no statutory duty cast on him to do so coupled with the fact that neither the candidate Ramprakash nor any representative on his behalf was ready to assist the Return ing Officer in curing the defect and in proving the correct identity of Ramprakash, it cannot be said that the Returning Officer committed any error in rejecting the nomination paper of Ramprakash. The Returning Officer not only granted ample time but even brought the defect to the notice of Jaiprakash proposer but still the defect in the nomination paper was not removed. In the result this appeal is allowed, the Judgment of the High Court dated 17th February, 1986 is set aside and it is held that the Returning Officer rightly rejected the nomination paper of Ramprakash. The appellant would also be entitled to costs. R.N.J. Appeal al lowed.

Election to the Legislative Assembly of the State of Madhya Pradesh was held in February, 1985. For Constituency No. 14 Lahar (Distt. Bhind) nomination papers were filed before 6th February, 1985 and scrutiny done on February 7, 1985. During the scrutiny the nomination paper of Ramprakash who was one of the candidates was rejected by the Returning Officer. The order rejecting the paper reads as under: "Candidate is not identified as per electoral roll. His rep resentative has accepted this mistake also. Hence rejected. Advised for correction but did not correct. The candidate did not correct after advising to correct mistake. Even did not appear at the time of Scrutiny to correct mistake. Hence rejected. See Section 33(4) R.P.A." Result of the election was declared on ' 5th March, 1985 and the appellant declared elected. The election of the appellant was challenged by the Respondent who was one of the voters of the constituency through an election petition on several grounds the main ground being the wrongful rejection of the nomination paper of Ramprakash. On the pleadings of the parties the High Court framed issue No. 1 which reads as under: (i) Whether rejection of the nomination paper of Rampra kash by the Returning Officer was illegal, as alleged? The High Court on an analysis of the evidence came to the conclusion that the entire story advanced by the elec tion petitioner and his witnesses was a fabrication and deserved to be rejected outright. How 504 ever after recording this finding the learned single judge of the High Court went on to hold that the candidate 's absence was immaterial and the Returning Officer could have himself found out the electoral number of the candidate Ramprakash readily with a little effort without the assist ance of any of the persons mentioned in Section 36(1) of the Act and that the defect in the nomination paper cannot be held to be of a substantial character. Issue No. 1 was thus decided in favour of the election petitioner as a result of which the election petition was allowed and the election of the appellant declared void. Hence this appeal by the elect ed candidate. Allowing the appeal and setting aside the judgment of the High Court, this Court, HELD: There is no statutory duty cast on the Returning Officer to himself look through the entire electoral roll of a particular part with a view to finding out the correct identity of a candidate at the time of the scrutiny even though neither the candidate himself nor any other represen tative on his behalf was present to cure the defect. [516B D] A perusal of the circumstances put forward by the wit nesses at the time of scrutiny and rejection of the nomina tion paper of Ramprakash shows that Ramprakash himself was not present and even his proposer Jaiprakash after having gone to fetch Ramprakash did not return back and ultimately the Returning Officer rejected the nomination paper of Ramprakash. The order passed by the Returning Officer re jecting the nomination paper of Ramprakash clearly makes a mention that the candidate was not identified as per elec toral roll. His representative had accepted the mistake also and was advised for correction but did not correct the same. The candidate did not correct after advising to correct the mistake. It further makes a mention that the candidate even did not appear at the time of scrutiny to correct the mis take. In the circumstances mentioned above we have no hesi tation at all in holding that the Returning Officer was perfectly justified in rejecting the nomination paper of Ramprakash. [509A C] . It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature. It is correct that the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature, where the identity of the candidate can be ascertained by him on the material made available to him. He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect. Howev er, in case neither the candidate nor his representative be present and without removing such defect in the 505 nomination paper the identity of the candidate cannot be ascertained, then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the material placed before him and to remove such defect himself. [509D F] Lila Krishan vs Mani Ram Godara & Ors., [1985] Suppl. S.C.RI 592; Dalip Kumar Gon. vs Durga Prasad Singh, AIR 1974 SC 2343; Amolak Chand vs Raghuveer Singh, ; and Brij Mohan vs Sat Pal, ; , referred to.

Appeal No. 642 of 1966. Appeal by special leave from the judgment and order dated October 21, 1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Original No. 11 D of 1960 read with judgment and order dated October 26, 1964 of the said High Court in R.S.A. No. 245 D of 1964. N. section Bindra and D. D. Sharma, for the appellant. G. R. Rajagopaul, section P. Nayyar for R. H. Dhebar, for the respondents. The Judgment of the Court was delivered by Wanchoo, C. J. The appellant obtained a decree for over Rs. 41,000 against Modern Electric Iron and Brass Works, Delhi, which was the property of two partners, namely, Mohd. Sabar and Noor Mohd. Butt. in January 1950. He also obtained an other decree for over Rs. 95.000 against the same two persons and ,one more to which proceeding the Custodian of Evacuee Property (hereinafter referred to as the Custodian) had also been made a party. Before. however, the first decree was obtained by the appellant. Mohd. Sabar and Noor Mohd. Butt had in April 1947 executed two deeds of release with respect to their property in favour of their wives. Later Mohd. Sabar and Noor Mohd. Butt and their wives migrated to Pakistan and their properties were declared evacuee properties under the , No. 31 of 1950, (hereinafter referred to as the 499 1950 Act). Under section 10 of the 1950 Act the Custodian had the power to pay any debt due from the evacuee to any person subject to rules framed thereunder. Further under the Rules a person to whom an evacuee owed money could apply for registration of his claim and the Custodian could register such claim; but mere registration of a claim did not entitle the claimant to payment, and the Custodian could refuse payment for reasons to be recorded. The claim of the appellant, based on the first decree passed in his favour, was registered by the Custodian. But in June 1950 the Custodian held that the evacuee property in question in the present case belonged to the wives of the judgment debtors (namely, Mohd. Sabar and Noor Mohd. Butt). He further directed the appellant to go to the civil court to Yet the release deeds set aside. On November 28. 1955. the appellant filed the suit out of which the present appeal has arisen in the court of the subordinate Judge First Class, Delhi, claiming that the release deeds in question were of no effect a being in fraud of the creditors. He claimed a declaration that the building in suit belonged to Mohd. Sabar and Noor Mohd. Butt and not to their wives and that the release deeds of April 1947 were fictitious and fraudulent and intended to defeat and delay the creditors and were not binding on the appellant. He also claimed that the Custodian was bound to open the account of the income of the said building in the names of Mohd. Sabar and Noor Mohd. Butt and the proceeds of the said building were bound to be adjusted against the claims of the appellant. The suit was resisted by the Custodian and the Union of India. Their case firstly was that the civil court had no jurisdiction to entertain the suit. Secondly, it was pleaded that the property in dispute which was a building in the city of Delhi had been acquired by the Central Government in pursuance of a notification issued on June 3, 1955, under section 12 of the . No. 44 of 1954. (hereinafter referred to as the 1954 Act) and therefore the appellant could not get a declaration to the effect that the proceeds of the suit building should be adjusted against his claim. The appellant had also pleaded in his plaint that the acquisition of the building by the notification of June 3. 1955 was subject to his rights and that in any case the notification and section 12 of the 1954 Act were ultra vires. Originally, the trial Court dismissed the suit holding that as the property in suit had been acquired by the Central Government by the notification dated June 3, 1955, the appellant could not claim to proceed against the property or its income. The appellant went in appeal and the appellate court remanded the suit on the ground that the appellants plea that the notification 500 and section 12 of the 1954 Act were ultra vires had, not been decided. When the suit went back for re trial on this issue, the appellant applied for transfer under article of the Constitution to the High Court praying that the constitutional issue be first determined by the High Court. This application was allowed and finally the constitutional question relating to the validity of section 12 of the 1954 Act was considered by a Division Bench of the High Court. It may be mentioned here that it had been decided by the Subordinate Judge that the civil, court had jurisdiction and that matter is not in dispute before us. When the matter came to the High Court, the appellant further challenged the amendment made to the 1950 Act by which cl. (m) of section 10(2) was amended as ultra vires. Reliance in this connection was placed on article 19 of the Constitution and also on article 14. The High Court held against the appellant on both points and sent the case back to the trial court for further consideration in the light of its judgment on the constitutional issues that were raised. The appellant then applied to the High Court for grant of a certificate to appeal to this Court, which was refused. Thereupon the appellant applied for and obtained special leave from this Court , and that is how the matter has come up before us. The same two points which were urged before the High Court have been raised before us on behalf of the appellant. So far as the first point relating to the invalidity of the amendment to section 10(2)(m) is concerned, the matter is now of academic interest in view of the decision of this Court in Raja Bhanupratap Singh vs Assistant Custodian Evacuee Property U.P.(1). It was held by the Court that "the power to pay the evacuee 's debts was derived both under cls. (m) and (n) of section 10(2). Therefore the deletion from cl. (m) of the Custodian 's power to pay the debts, by the Amending Act of 1956, and the consequential deletion of r. 22 of the Rules framed under the Act. by which 'a machinery was provided for exercising that power did not affect the power which is conferred by section 10(2) (n) and by section 10(1). The power to administer, under section 10(1) is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian only to recover and collect the assets of the evacuee; it includes power to discharge his obligations as well, to pay such debts which, in the opinion of the Cus todian, are binding upon the evacuee". This Court further held that the decree of the civil court was not decisive of the question whether a person making a claim was entitled to the money claimed by him; it was for the Custodian to determine whether he was so entitled. In view of this decision it is unnecessary to express any opinion as to the invalidity of the amendment of cl.(m) of section 10(2) for the amendment made no difference to the legal (1) ; 501 position as the power of the Custodian to pay the debts of the evacuee still remained, unimpaired. If be was of opinion that the debts were genuine, he could pay them. This brings us to the main question that has been argued in the present appeal, namely, that section 12 of the 1954 Act is invalid because it is an infringement of the right to hold property which the appellant has under article 19(1)(f) of the Constitution and is not saved as a reasonable restriction thereon. The argument is put thus. The appellant had advanced money to the two evacuees, namely. Mohd. Sabar and Noor Mohd. Butt. On the basis of the loan, be had obtained a decree in January 1950. He had the power to execute that decree against the property of his judgment debtors. By taking away the property of the judgment debtors, ,After they bad become evacuees and by vesting that property free from all encumbrances in the Central Government under section 12 of the 1954 Act the appellant 's right to proceed against that property had disappeared. Therefore section 12 of the 1954 Act was violative of article 19(1)(f). as the appellant 's holding of the decree had been rendered illusory. Reliance in this connection is placed on four decisions of the Supreme Court of the United States of America. namely, (i) Von Hoffman vs The City of Quincy(1), (ii) Ranger vs City of New Orleans,(2) (iii) Peirce Coombes vs Milton E. Getz(3) and (iv) W. B. Worthen Co. vs Mrs. W. D. Thomas(4) Before we consider the argument raised before us we may say at once that the four cases on which reliance has been placed on behalf of the appellant are entirely beside the point and of no assistance. These cases were based on a provision in article 1, section 10 of the American Constitution which inter alia lays down that "no State shall. pass any law impairing the obligation of contracts. . There is no such provision in our Constitution and.therefore the appellant cannot be beard to say that as section 12 of the 1954 Act impairs the obligation of the contract between him and the two evacuees, the section is bad. Now let us turn to the argument based on article 19 (1)(f). It is clear to us that the argument as put forward on behalf of the appellant is fallacious and untenable. Section 12 of the 1954 Act does not in any manner affect the decree held by the appellant against Mohd. Sabar and Noor Mohd. Butt. All that it provides is that the property, which upto the time the Act of 1954 was passed, was in law the property of the evacuees, though it was under the administration of the Custodian and vested in him for that purpose under the 1950 Act, would on a notification issued under section 12 of the 1954 Act become the property of the Central (1) 18 L.Ed. Wallace 403. (2) (3) ; (4) ; 502 Government and the right, title, interest of the evacuee in such property would thereupon be extinguished and the property shall vest absolutely in the Central Government free from all encumbrances. At no time did the appellant have any right whatsoever in the property which vested in the Central Government on the issue of the notification under section 12. It may be that if the owners had not become evacuees and if the property had not been declared evacuee property, the appellant might have proceeded against that property in execution of his decree. It may also be that he cannot do so now after the said notification under section 12. But section 12 does not in our opinion interfere with the appellant 's right to acquire, hold and dispose of his property, namely the decrees against Mohd. Sabar and Noor Mohd. Butt. As the appellant had no interest in the property in suit, the fact that it was acquired by the Central Government by a notification under section 12 of the 1954 Act did not in any way affect the appellant 's right to acquire, hold and dispose of his property. In the circumstances, the appellant cannot claim protection under article 19(1)(f) at all with respect to the property in suit and it is not necessary to consider whether section 12 could be saved under article 19(5). We therefore agree with the High Court that the appellant cannot claim that section 12 is ultra vires article 19(1)(f) and therefore the notification made thereunder affects his fundamental right to acquire, hold and dispose of property. Further the argument that section 12 is bad under article 14 has also no force. The contention under this head is that the creditors who have decrees against non evacuees can execute their decrees against the properties of non evacuees, but the creditors having decrees against evacuees cannot execute them against their properties after they had vested in the Central Government by a notification under section 12 of the 1954 Act; and this amounts to discrimination under article 14. But it is well settled that the Constitution does not contemplate equality of all laws or application of all laws equally to every person. There is a clear classification between evacuee property and non evacuee property. There is a clear nexus between the object to be achieved by the enactment of the 1954 Act, namely, rehabilitation of evacuees from Pakistan and the provision in section 12 by which the property of evacuees in India is to be utilised for such rehabilitation. There is therefore. no infringement of article 14 in the circumstances. Lastly it is urged on behalf of the appellant on the basis of the decision of this Court in Raja Bhanupratap Singh(1) that the appellant was entitled to ask the Custodian to consider his case under section 10(2) (n) read with section 10(1) of the 1950 Act, and for that purpose it is necessary to decide the main question raised in the suit, namely, that the release deeds of 1947 in favour of the wives (1) ; 503 were of no effect and therefore the property, though evacuee property, was the property of the judgment debtors of the appellant, namely, Mohd. Sabar and Noor Mohd. Butt. It is also pointed out that the notification of June 3, 1955 was only with respect to immovable property and there was nothing to show that the Central Government had issued a notification under section 14(1)(b) of the 1954 Act relating to cash balance, if any, lying with the Custodian on the date the property was acquired. It is urged that all that the notification of June 3, 1955 means is that as from that date no action could be taken against the property in suit or its income. But if there was any money with the Custodian on the date of vesting and if no order had been passed in respect thereof under section 14(1)(b), the appellant would be entitled to ask the Custodian to consider whether he should be paid anything out of the moneys lying with the Custodian provided he could establish that the property was the property of his judgment debtors, namely, Mohd. Sabar and Noor Mohd. Butt and not of their wives. The declaration that the appellant sought was wide in terms in as much as he claimed that he was entitled to have his claim adjusted against the proceeds of the said building and these proceeds will include any income of a period before the date of vesting under the notification under section 12. It is urged that as such it is necessary to decide the issue whether the release deeds of April 1947 were fictitious and fraudulent intended to defeat and delay the creditors and therefore the property belonged to Mohd. Sabar and Noor Mohd. Butt. If that is held in his favour by the civil courts he would be entitled to go to the Custodian and ask him to pass an order in his favour under section 10(2)(n) read with section 10(1) and pay him out of the moneys lying with him on the date the property vested in the Central Government under the notification under section 12. We are. of opinion that there is force in this contention. Though the appellant cannot claim to proceed against the property in suit or its income after the date on which it vested in the Central Government by virtue of the notification under section 12, he can ask the Custodian to pay him out of the moneys lying with him on the date of such vesting if he can satisfy him in the manner provided in section 10(2)(n) read with section 10(1) of the 1950 Act. We therefore direct that when the case goes back to the trial court as ordered by the High Court, the trial court will decide the issue whether the deeds of release of April, 1947 are fictitious and fraudulent intended to defeat and delay the creditors and not binding on the appellant. If the trial court decides in favour of the appellant it will then be open to him to approach the Custodian under section 10(2)(n) read with section 10(1) for such orders as the Custodian thinks fit to pass with respect to moneys, if any, lying with him on the date of vesting. It may be mentioned that learned counsel for the appellant submitted that this property in fact 504 vested in the Central Government by some notification in 1958 and not by the notification dated June 3, 1955, as mentioned in the plaint. On the other side it has been submitted that some orders have been passed by the Central Government under section 14 (1)(b). These are matters which may require to be gone into by the trial court and for that purpose it may be necessary to amend the plaint and the written statement, and this we permit. We therefore dismiss the appeal subject to the observations made above. In the circumstances we order parties to bear their ,own costs of this Court as also of the High Court. Costs of other courts will abide the final result. V.P.S. Appeal dismissed.

The appellant, the Swatantra party candidate, was declared elected to the Lok Sabha as against the Congress party candidate. On April 10, 1967, the first respondent, an elector in the constituency filed an election petition. In the petition he charged the appellant with corrupt practice under section 123(2) proviso (a) (ii) of the Representation of the People Act, 1951. The allegation was that one: S.M., with the consent of the appellant or his election agents, told the electors in speeches that if they voted for the Congress candidate, they would commit the sin of cow Slaughter and would become objects of divine displeasure. On September 25, 1967 the first respondent 'obtained 'an order giving him leave ,o amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya. On February 29, 1968 the trial commenced and one of the witnesses said that he heard S.M. giving a speech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contravention of the mandate would be visited with spiritual censure. On an objection being raised by the appellant 's counsel, the first respondent agreed that the statement of the witness should not be treated as part of the evidence. The trial proceeded, 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of S.M. as exhibits and adopted a definite line of cross examination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya. However on March 5, 1968, the first respondent 'applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Court allowed the amendment. The, High Court set aside the 'appellants election on its finding that the corrupt practice in relation to the command of Sri Shankaracharya was proved. In appeal to this Court on the questions (1) Whether the High Court should have allowed the amendment; and (2) Whether the appellant was guilty of any corrupt practice, HELD : The appellant 's election was rightly set aside. (Per Bachawat, J.) : (1) The High, Court erred in allowing the amendment. When a corrupt practice is charged against the returned candidate the election petition Must set forth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is. It must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not dis 7Sup CI/69 15 218 closed in the particulars. Section 86(5) of the Act, however, allows amendment of particulars, but the Court shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition, and normally, an application for amendment should be made within a reasonable time. Though the Court has power to allow an amendment even after commencement of the trial, leave to amend would not he granted if the petitioner was not acting in good faith or had kept back facts known to him. [221 B D, G H; 222 A B] In the present ease, the first respondent knew of both items of corrupt practice ' from his witnesses who were present at the speeches made by S.M. If S.M. had told the electors about the mandate of Sri Shankaracharya, the witnesses must have given information to the first respondent, and no explanation was given by the first respondent as to why he withheld the information at the time of filing the petition or when he first amended his petition. He was aware of the difference between the two charges of telling the electors about the sin of gohatya and that of telling the electors about the sin of disobeying the command of their religious leader. But the :first respondent deliberately refrained from taking the new charge earlier and moved the application for amendment in bad faith at a very late stage of the trial. Ordinarily, in an appeal under section 116A of the Act, this Court would not interfere with the discretion of the High Court in granting amendments, but since the order of the High Court has resulted in 'manifest injustice, this Court has the power and duty to correct the error. [222 B D, F H; 223,A E] (Per Hegde, J.) The High Court has given good reasons in support of its order allowing the amendment and no case was made out to interfere with it. [227 D] (2) (Per Bachawat, J.) There is ' no absolute ban on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban. Public criticism 'of the Congress party for not abolishing cow 'Slaughter was permissible, but the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under section 123(2) of the Act. Under section 123(2), proviso ( a) el. (ii), there is such undue influence if any person, with the consent of the candidate or his election agent, attempts to induce an elector to, believe that he will be tendered an object of divine displeasure or spiritual censure. [224 D F] In the present case, S.M. spoke at the meeting on February8, 1967 with the consent of the election agent of the appellant. S.M.was a Kirtankar of repute and well known and respected for his lectures on Hindu religion, while his audience consisted mostly of illiterate and ortho dox Hindus of rural areas who are filled with horror at the slaughter of a cow. The dominant theme of the speech was that those who commit the sin of gohatya would be visited with divine displeasure. Therefore, even apart from the charge relating to the command of Sri Shankaracharya, the speech was calculated to interfere with the free exercise of electroral right. The corrupt practice was thus committed at the meeting on February 8, 1967, with the consent of the election agent of the appellant. [224 G H; 225 G H; 226 F G 227 B C] Narbada Prasad vs Chhagan Lal, ; , followed. (Per Hegde, J.) Everyone of the speeches made by S.M., read as a whole, are fanatical outpourings and a direct challenge to the concept of a secular democracy, and fell within the vice of the proviso (a)(ii) of section 123(2) of the Act. [227 E] 219

iminal Appeals Nos. 150 and 185 of 1961. Appeals by special leave from the judgment and order dated June 19, 1961 of the former Bombay High Court in Criminal Appeals Nos. 218 and 242 of 1961 respectively. section Mohan Kumarmangalam, R. K. Garg and M. K. Ramamurthi, for the appellant (in Cr. A. No. 150/61). B. M. Mistry, Ravinder Narain and J. B. Dadachanji, for the appellant (in Cr. A. No. 185 of 1961). B. K. Khanna, B. R. G. K. Achar and R. H. Dhebar, for the respondent (in both the appeals). February 26, 1964. The Judgment of the Court was delivered by RAGHUBAR DAYAL J. Shiv Prasad Chunilal Jain, appellant in Criminal Appeal No. 150 of 1961 was accused No. 3 and Pyarelal Ishwardas Kapoor, appellant in Criminal Appeal No. 185 of 1961 was accused No. 2, at the Sessions Trial before the Additional Sessions Judge, Greater Bombay. Along with them was a third accused, Rameshwarnath Brijmohan Shukla who was accused No. 1 at the trial. As the two appeals arise from a common judgment, we would dispose of them by one judgment. The appellants would be referred to as accused No. 3 and accused No. 2 respectively. The facts leading to the conviction of the appellants are that a large quantity of iron angles was consigned early in February 1959 from Gobind Garh to Raypuram under railway receipt No. 597481, They were despatched in an open wagon bearing E.R. No. 69667. The labels of the wagon were changed at Itarsi railway station and it was diverted to Wadi Bunder under a label showing that the iron angles had been despatched from Baran to Wadi Bunder under railway receipt No. 43352 dated February 6, 1959. This wagon reached Wadi Bunder on February 16, 1959. On February 17 it was unloaded by Baburao 923 Gawade, P.W.I and Shridhar, P.W. 14. On February 18, accused No. 1 obtained the delivery sheet of the bill and signed it in the name of Shri Datta. He also obtained delivery of the iron angles from the railway and signed the Railway Delivery Book in the name of Shri Datta. The railway authorities delivered these on the presentation of the forged receipt No. 43352 and on payment of the charges amounting to Rs. 1,500/ . These iron angles were then transported to the godown of the National Transport Company at Sewri and stored there. The entries in the book showed their receipt in the account of accused No. 3 and also contained a further entry indicating the goods to be received in the account of accused No. 2. The latter entry was made on the receipt of a chit, Exhibit Z8, from accused No. 1 saying that the goods be entered in the name of accused No. 2. On February 24, 1959 the accused No. 2 signed an application, Exhibit K, addressed to the head office of the National Transport Company for delivering the goods. Accused No. 1 obtained the goods from the godown of that company on February 26 and March 3, 1959. A complaint by the original consignee about the nonreceipt of the iron angles sent from Gobind Garh led to an enquiry and eventual prosecution of the three accused. Six charges were framed. The first charge was against all the accused for an offence punishable under sections 471 and 467 read with section 34 I.P.C. and stated that in furtherance of their common intention to cheat the railway administration, accused No. 1 had fraudulently or 'dishonestly used the forged railway receipt No. 43352. The second charge was framed in the alternative. Firstly it charged all the accused for an offence under section 467 read with section 34 I.P.C. on account of accused No. 1 having forged the bill portion. In the alternative, accused No. 1 was charged with the offence under section 467 I.P.C. and the other accused Nos. 2 and 3 were charged under section 467 read with section 109 I.P.C. for having abetted accused No. 1 in the commission of that offence. 924 Charges Nos. 3 to 6 were similarly framed in the alternative, i.e., in the first instance all the three accused were charged with certain offences read with section 34 I.P.C. while in the alternative accused No. 1 was charged of the specific offence and the other two accused were charged with that offence read with section 109 I.P.C. The accused were tried by the Additional Sessions Judge, Greater Bombay, with the aid of a jury. The jury returned a unanimous verdict of guilty against all the accused for the various offences read with section 34 I.P.C. The verdict of the jury was not recorded with respect to the five alternative charges against accused No. 1 regarding substantive offences and against accused Nos. 2 and 3 with respect to the various offences read with section 109 I.P.C. The Sessions Judge accepted the verdict of the jury and convicted them of the various offences read with section 34 I.P.C. Their appeals to the High Court were unsuccessful and therefore accused Nos. 2 and 3 have preferred these appeals after obtaining special leave from this Court. The main contention for the appellants is that the learned Sessions Judge misdirected the jury with respect to the requirements of section 34 I.P.C. The contention is that the various offences were actually committed by accused No. 1 on February 18, that neither accused No. 2 nor accused No. 3 was present when he presented the forged railway receipt, did other criminal acts and took delivery of the iron angles and that therefore even if they had agreed with accused No. 1 for the cheating of the railway administration by obtaining the iron angles dishonestly by presenting the forged receipt, they might have abetted the commission of the various offences, but could not be guilty of those offences with the aid of section 34 I.P.C. whose provisions, it is contended, do not apply in the circumstances of the 'Case. It is contended that for the applicability of section 34 against an accused, it is necessary that that accused had actually participated in the commission of the crime either by doing something which forms part of the criminal act or by at least doing something which would indicate that be was a participant in the commission of that criminal act 'at the time it was committed. Reliance is placed on the 925 cases reported as Barendra Kumar Ghosh vs The King Emperor(1) and Shreekantiah Ramayya Munipalli vs The State of Bombay(2). The learned Sessions Judge in the instant case had told the jury : "In case you come to the conclusion that there was a common intention in the minds of all the three accused and accused No. 1 was acting in furtherance of that common intention, all the accused would be answerable for the offences proved against accused No. 1 by virtue of the provisions of section 34 of the Indian Penal Code, and it would be no answer to the charge to say that the acts were done by accused No. 1 alone. Therefore, you have first, to consider for yourselves what offences are proved against accused No. 1. You have next to ask yourselves whether it is proved (and it can also be proved by circumstantial evidence) that there was a common intention in the minds of all the three accused and the acts done by accused No. 1 were done in furtherance of that common intention. If your answer is 'yes ' all the three accused would be guilty of the charges proved against accused No. 1 by virtue of section 34 of the Indian Penal Code. " It is contended that in thus putting the case to the jury the learned Sessions Judge was in error as he did not take into consideration the fact that accused Nos. 2 and 3 were not present at all at the time when the various offences were actually committed by accused No. 1. The two cases relied upon by the appellants support their contention. In Shreekantiah 's case(2), three persons were convicted on several charges under section 409 read with section 34 I.P.C. for committing criminal breach of trust of certain goods entrusted to them as government servants in charge of the stores depot (1) L.R. 52 I.A. 40. (2) ; 926 at Dehu Road near Poona. The stores had illegally passed out of the depot and were handed over to a person who was not authorised to get them from the depot. It was alleged that those accused had conspired to defraud the Government of those properties and that it was in pursuance of that conspiracy that they had arranged to sell the goods to the other person. Accused No. 1 in that case was not present when the goods were loaded nor was he present when they were allowed to pass out of the gates, that is to say, he was not present when the offence was committed. Bose J., delivering the judgment of the Court, said at p. 1189 : "If he was not present, he cannot be convicted with the aid of section 34. He could have been convicted of the abetment had the jury returned a verdict to that effect because there is evidence of abetment and the charge about abetment is right in law. But the jury ignored the abetment part of the charge and we have no means of knowing whether they believed this part of the evidence or not. " In considering the misdirection in the charge to the jury and the requirements of section 34 I.P.C. the learned Judge said at p. 1188 : "The essence of the misdirection consists in his direction to the jury that even though a person 'may not be present when the offence is actually committed ' and even if he remains 'behind the screen ' he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention. This is wrong, for it is the essence of the section that the person must be physically present at the actual commission of the crime." Shreekantiah 's case(1) is practically similar to the present case. Both accused No. 2 and accused No. 3 deny their presence at the railway station on February 18 when the various offences were committed. None deposed that accused No. 3 was then present. The presence of accused No. 2 was, however, stated by Babu Rao Gawade, P.W. 1. (1) ; 927 He had not stated so in his statement before the police during investigation and the summing up by the learned Sessions Judge was that, under those circumstances, it was for the jury to consider whether to believe the statement of the s witness in Court or not. It cannot be said as there was other evidence against accused No. 2 as well about his connection with this criminal transaction whether the jury believed his presence at the railway station on February 18 or not. In Jaikrishnadas Manohardas Desai vs The State of Bombay(1), Shreekantiah 's case(2) came up for consideration and was distinguished, on facts. In that case, the two accused, who were directors of a company, were convicted of an offence under section 409 read with section 34 I.P.C. for committing criminal breach of trust with respect to certain cloth supplied to them. It was alleged that one of the accused was not working at that factory during the period when the goods must have been removed and that therefore he could not be made liable for the misappropriation of the goods by taking recourse to the provisions of section 34 I.P.C. Shah J., delivering the judgment of the Court, said at p. 326: "But the essence of liability under section 34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the common intention and presence of the offender sought to be rendered liable under section 34 is not, on the words of the statute, one of the conditions of its applicability. . A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of section 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence ' consists of diverse acts which may be (1) (2) ; 928 done at different times and places. In Shree Kantiah 's case(1), misappropriation was com mitted by removing the goods from a Government depot and on the occasion of the removal of the goods, the first accused was not present. It was therefore doubtful whether he had participated in the commission of the offence, and this Court in those circumstances held that participation by the first accused was not established. The observations in Shree Kantiah 's case(1) in so far as they deal with section 34 of the Indian Penal Code must, in our judgment, be read in the light of the facts established and are not intended to lay down a principle of universal application." Accused No. 1, in the present case, alone did the various acts on February 18, 1959 which constituted the offences of which he was convicted. Accused Nos. 2 and 3 took no part in the actual commission of those acts. Whatever they might have done prior to the doing of those acts, did not form an ingredient of the offences committed by accused No. 1. They cannot be said to have participated in the commission of the criminal act which amounted to those various offences. They cannot be therefore held liable, by virtue of section 34 I.P.C., for the acts committed by accused No. 1 alone, even if those acts had been committed in furtherance of the common intention of all the three accused. The result, therefore, is that the conviction of the appellants, viz., accused Nos. 2 and 3, for the various offences read with section 34 I.P.C. is to be set aside. We did not hear, at first, the learned counsel for the appellants, on the alternative offences of abetment being made out against the appellants and with respect to which the verdict of the jury was not recorded by the Sessions Judge. We did not consider it necessary to remit the case for further proceedings with respect to those charges and preferred to dispose of the case finally after giving a further hearing to the learned counsel for the appellants. We accordingly heard them on the charges relating to the appellants abetting accused No. 1 in the commission of the (1) ; 929 various offences, subject matter of charges Nos. 2 to 6 and now deal with that matter. We need not discuss the evidence on the record and would just note the various facts which are established from the evidence or which are admitted by the accused. The relevant facts having a bearing on the question of accused No. 2 abetting the commission of the offences com mitted,by accused No. 1 are : 1. Accused No. 1 is the servant of accused No. 3 at whose shop accused No. 2, who is a broker, sits. Accused No. 2 deals in non ferrous goods. Accused No. 2 went with Baburam Gavade, P.W. 1, a clearing agent, on February 17, 1959, to see the goods. The godown register showed the angle irons to be received in the account of Shiv Prasad Bimal Kumar and Pyare Lal, accused No. 2. Accused No. 2 wrote the letter Exhibit K to the National Transport Company for issuing, the delivery order with respect to the angle irons in order to enable him to take delivery thereof. Accused No. 2 was in possession of the note, Exhibit Z 7 which he delivered to the police during the investigation. The relevant facts having a bearing on the alleged abetment of the offences by accused No. 3 are 1. Accused No. 1 is an employee of accused No. 3. 2. The angle irons were stored at the depot of the National Transport Company at the instance of, accused No. 1. 3 The books of the godown noted their receipt in the account of accused No. 3, though the account Showed further that they were received in the, account of accused No. 2. This further entry was,made on receipt of Exhibit Z 8 from .lm0 134 159 S.C. 59 930 accused No. 1 when the last lot was delivered at the godown on February 18. The entire writing on Exhibit Z 7 except the signature of an unknown person and the date below it, was written by accused No. 3. That document reads: "To Piaraya Lal c/o M/s. Sheopershad Bimal Kumar, Bombay. No. 43351, dated 4 2 59 Ashoknagar to Carnac Bridge. No. 43352, dated 6 2 59 Baran to Wadi Bunder. I have received the material of the above RR which I have handed over to you for clearance. Sd./ Yashwant 24 2 1959. " Besides these circumstances, it is urged for the State that the effect of the diversion of the wagon from its right course at Itarsi railway station indicates that the people responsible for it must have a fairly large and influential organization with funds and that such a diversion could no$ have been merely at the instance of accused No. 1, all employee of accused No. 3, who is a substantial merchant About Rs. 1,5001/ were paid as charges to the railway authorities before the angle irons could be taken delivery of Accused No. 1 could not have been in a position to make that payment. It is further urged that accused No. 1 would not have stored the goods with the National Transport Company unless the storage was on account of his master, accused No. 3. Accused No. 2 admits his going to see the goods on February 17, but states that he lost his interest in the good$ as they were iron angles and his line of business was in non ferrous goods. He explains his singing the letter Exhibit 931 K by saying that he did so at the instance of accused No. 3 who represented to him that accused No. 1 had, by mistake, stored the goods in the name of accused No. 2 and of accused No. 3 showing him the document Exhibit Z 7 which he retained with himself. Accused No. 3 states that he had nothing to do with this matter and that he wrote Exhibit Z 7 at the instance of accused No. 2 who asked him to do so, he himself being unable to write in English or Hindi. We now discuss the evidence to determine whether the accused Nos. 2 and 3 abetted the commission of the offences committed by accused No. 1. Exhibit Z 7, as originally written, does not, appear to have had the first line, viz., the writing of 'To, Piaraya Lal C/o '. This was written subsequently. This is clear, as urged for accused No. 2, from the facts that it appears to have been written with a different pen and, possibly, with different ink also, and because the word 'C/o ' has been written at an unusual place. In ordinary writing, it should have been in line with the latter expression 'M/s. Sheopershad Bimal Kumar '. It follows therefore that this document was first written by accused No. 3 to show that a third person had entrusted him with the railway receipt No. 43352, dated February 6, 1959, and that that person had received the material to which the railway receipt related. In this original form, the only conclusion possible from the original contents of the document can be that M/s. Sheopersbad Bimal Kumar, of which accused No. 3 is the proprietor, received this receipt from the third person in order to clear the good. & from the railways. This would amply explain accused No. 1 taking delivery of the goods on February 18 and storing them with the National Transport Company in the account of accused No. 3 and the entries in the godown register. Himmatlal, P.W. 13, is the godown keeper. He issued the receipt Exhibit PI which records: "We have today received the under mentioned goods for storage with us in our godown No. IPL on behalf of and under lien to Shiv Prasad Bimal Kumar. " 932 This is a clear indication of the fact that the goods were stored on behalf of Sheopershad Bimal Kumar, i.e., accused No. 3. The words 'under lien ' are of great significance in this respect and show that the storage was not shown to be on behalf of accused No. 3 merely because the angle irons were sent by accused No. 1 who was an employee of accused No. 3. The expression 'under lien ' points to there being some specified transaction between accused No. 3 and the National Transport Company for the storing of the articles. This note further confirms the statement of Himmatlal that he had all first written in the accounts that the goods were received on account of Sheopershad Bimal Kumar and that it was on receipt of Exhibit Z 8 from accused No. 1 that he noted the words 'Account Pyare Lal ' in the entries with respect to those goods. The circumstance that accused No. 3 was in a better position to finance the transaction than accused No. 1, is also consistent with the aforesaid conclusion from the original contents of Exhibit Z 7. Apart from the apparent later noting of the first line in this document, Exhibit Z 7, there appears no good reason why the receipt should have been written in this form if it was to be written at the instance of accused No. 2. There was no reason to give the address of Pyare Lal as c/o M/s. Sheopershad Bimal Kumar. The later entry in this document must have been therefore for a purpose And that could have only been to show that the railway receipt No. 43352 was dealt with by accused No. 2 and not by accused No. 3. Mention may be made here of the fact that certain witnesses who had, during their police statements, referred to certain actions of accused No. 3, stated in Court that those acts were committed by accused No. 2. No reliance can be placed on any of the statements of those witnesses and this fact is just mentioned to show that it fits in with the very first attempt in converting the document originally prepared to show that accused No. 3 had dealt with this forged railway receipt into a document showing that it was 933 not accused No. 3 but accused No. 2 who dealt with that receipt. Accused No. 2 has been acting as a broker. He signed Exhibit K. He must be conversant with the language in which he signed. It was not necessary that the receipt Exhibit Z 7 should have been written in English or in Hindi even if accused No. 2 did not know any of those languages. We are therefore not prepared to accept the explanation of accused No. 3 with respect to his recording the document Exhibit Z 7. We hold, as admitted by him, that he had written this document. It makes reference to the forged receipt of which advantage was taken in getting delivery of the iron angles. Accused No. 3, writing such a receipt, clearly points to his being concerned with the taking delivery of the iron angles, by accused No. 1, his employee. Once the forged receipt is traced to accused No. 3, from his own writing, the natural conclusion is that it was he who passed it on to his employee accused No. 1 for the purpose of getting delivery of those goods from the railway authorities. He thus aided accused No. 1 in obtaining delivery of those goods, and in his committing the various offences for achieving that object. The further fact that the receipt was endorsed in the name of Datta and not in the name of accused No. 1, also proves that accused No. 3 must have known that the receipt he was dealing with was not a genuine receipt for the goods which were to be taken delivery of. If he had believed the receipt to be a genuine one, he would have endorsed it or got it endorsed in the true name of his employee. His employee too would not have taken delivery under a false name. We are therefore of opinion that it is established from these various circumstances and facts that accused No. 3 had abetted the commission of the offences, the subject matter of charges Nos. 2 to 6, by accused No. 1. The points in favour of accused No. 2 are that he does not deal in non ferrous metals and therefore he would not have taken any interest in the transaction after he had found out on February 17 that the goods were ferrous and not non ferrous. The fact that the goods were not stored in his name in the accounts of the godown of the National Trans 934 port Company, but were stored in the first instance in the name of No. 3, also goes in his favour. If accused No. 3 had nothing to do with it and accused No. 1 was simply acting for accused No. 2, he would have sent instructions in the very first instance to Himmatlal that goods were to be stored in the account of accused No. 2. He did not do so. He sent intimation for storing the goods in the name of Pyarelal with the last lorry transporting the iron angles to the godown. Pyarelal had no previous dealings with the National Transport Company. In this connection, the exact direction given by accused No. 1 is of some significance. The direction given by him in Exhibit Z 8 was 'Please give a receipt in the name of a/c Pyare Lal '. The request was not that the goods were of Pyare Lal and so be stored on his account. That should have been the natural direction. The receipt would have then been issued in the name of Pyare Lal and of nobody else. The direction given by accused No. 1 therefore indicates that for certain purposes he desired the receipt alone to be in the name of Pyare Lal. Naturally, Himmatlal had to make some entry in the books of the godown which would be consistent with a receipt issued in the name of Pyare Lal. Himmatlal therefore noted the words 'account Pyare Lal ' below the original note 'account Sheopershad Bimal Kumar ', but saw no reason to make a statement in the receipt Exhibit P that the goods were stored on behalf of Pyare Lal and noted in it that they were stored on behalf and under lien to Sheopershad Bimal Kumar. Accused No. 2 signed the letter Exhibit K for the issue of the delivery order. His explanation is that he did so when accused No. 3 insisted and told him that his employee had by mistake stored the goods in his name. Ordinarily, this should not have been believed by accused No. 2 as there was no reason why accused No. 1 should store the goods in his name by mistake. He could have and might have suspected something not straight, but could shake off such suspicion by his being shown the receipt Exhibit Z 7, which showed that the goods had been cleared by A 3 on behalf of certain person who had passed on that receipt. He was under an obligation to accused No. 3 and it is possible that he could 935 not have strongly resisted the request of accused No. 3 sign the letter Exhibit K. Accused No. 3 had necessar to obtain a letter signed by Pyare Lal when the goods has not been shown to be stored in his account but were not in the account of Pyare Lal or of both Sheopershad Bin Kumar and Pyare Lal. It is significant that accused No. 2 himself did not to take delivery of the goods. It was accused No. 1 was took the delivery in two lots and each time signed the receipt in the name of Pyare Lal. If accused No. 2 was also a party to the dishonest obtain ing of the goods from the railway, there would not ha been any occasion for such duplication of names on who behalf the goods were stored with the National Transport Company or for such a document as Exhibit Z 7 commitment into existence or for accused No. 2 keeping the document with himself. He kept it with himself for his protection an produced it for that purpose during investigation. It may be that when accused No. 3 tried to dispel his doubts wh. he was requested to sign the letter Exhibit K, accused No. himself suggested the receipt Exhibit Z 7 to be address, 'in his name, as only then that receipt could be of any he to him. In these circumstances, we are of opinion that the complicity of accused No. 2 in the commission of the varios offences by accused No. 1 is not established beyond reason able doubt. We therefore allow the appeal of Pyare Lal and acquired him of the offences he was convicted of. We dismiss tl. appeal of accused No. 3, Shiv Prasad Chunilal Jain, by alter his conviction for the various offences read with section 3, I.P.C. to those offences read with section 109 I.P.C., and mainta. the sentences. Appeal No. 185 allowed at, Appeal No. 150 dismisses Conviction altered and sentence maintained.

The appellants and the five respondents were displaced persons. The Deputy Custodian of Nizamabad District allotted about 60 acres of land to the five respondents. The allotment was by way of lease. There was no condition imposed upon them that they should cultivate the lands personally. While the lease was continuing in force, the Government of India issued a Press Note on November 13, 1953 by which they announced that they had decided to allot evacuee agricultural land in Hyderabad State to displaced persons whose claims for agricultural land had been verified under the Displaced Persons (Claims) Act, 1950. The appellants made an application in pursuance of this notifi cation and on May 4, 1954 the land now in dispute, though under a subsisting lease in favour of the respondents, was allotted to them. In the mean time the , came into force on October 9, 1954. Under Section 20 of this Act, the Regional Settlement Com missioner issued Sanads in favour of appellants in respect of these lands. Both the appellants and the respondents claimed these disputed plots. The matter went up to the Deputy Chief Settlement Commissioner. He referred the case of both parties to the Government of India for action under section 33 of the Act. The matter was considered under section 33 of the Act by the Deputy Secretary in the Rehabilitation Ministry who upheld the contentions of these respondents. The result was that the allotment made in favour of the appellants was set aside. It is the legality of this order that is challenged in this appeal. Held (i) The order of the Central Government was covered by section 33 of the Act as one dealing with and rectifying an error committed in relation to a "thing done or action taken" with respect to a rehabilitation grant to a displaced person. Not merely the order of the Regional Settlement Commission rebut the entire question as to whether the respondents as original allottees by way of lease were entitled to the relief of restoration was referred to the Central Government by reason of the order of the Deputy Chief Settlement Commissioner. Both the parties were heard on all the points by the Central Government before the orders were passed and it would not therefore be right to consider that the matter in issue before the Central Government was namely the correctness of the order of the Regional Settlement Commissioner, which read in vacuo might not be comprehended within section 39 of the Act. (ii) It is manifest that a Sanad can be lawfully issued only on the basis of a valid order of allotment. If an order of allotment which is the basis upon which a grant is made 104 is set aside it would follow, and the conclusion is inescapable that the grant cannot survive, because in order that grant should be valid, it should have been effected by a competent officer under a valid order. If the validity of that order is effectively put an end to, it would be impossible to maintain unless there were any express provision in the Act or in the rules, that the grant still stands. On the facts of this case it was held that where an order making any allotment was set aside the title which was obtained on the basis of the continuance of that order also fell with it. Partumal vs Managing Officer, Jaipur, I.L.R. , distinguished. Balwant Kaur vs Chief Settlement Commissioner (Lands), I.L.R. [1964] Punjab 36, approved.

: Criminal Appeal No. 45 of 1980 From the Judgment and Order dated the 17th October, 1979 of the High Court of Rajasthan in S.B. Criminal Appeal No. 39 of 1977. Frank Anthony and S.K. Jain, for the Appellant. Badri Dass Sharma for the Respondent. The Judgment of the Court was delivered by DESAI, J. Appellant Kishan Chand Mangal was convicted by the learned Special Judge (A.C.D. Cases), Jaipur, Rajasthan, for 571 having committed offences under section 161, Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/ , in default to suffer further rigorous imprisonment for one month on each count with a further direction that both the sentences will run concurrently. After an unsuccessful appeal to the High Court of Rajasthan, he has preferred this appeal by special leave. Appellant at the relevant time was serving as Factory Inspector, Ajmer and in that capacity he accompanied by his friend paid a visit on November 20, 1974, to the factory named 'Krishna Industries ' whose proprietor was one Rajendra Dutt. Appellant said that his visit being after a lapse of one and a half year, the proprietor should pay him pocket money. Rajendra Dutt replied that his establishment was not covered by the Factories Act and showed disinclination to grease the palms of the appellant. However, appellant persisted in his demand and told Rajendra Dutt if he did not pay Rs. 150/ he was likely to be entangled in some legal proceedings. So saying appellant and his companion left. Rajendra Dutt was not inclined to give the bribe demanded from him and, therefore, on November 22, 1974, he contacted Dy. S.P., A.C.D., Ajmer, P.W. 7, Mahavir Prasad and gave a written complaint Ext. P 12 complaining about the demand of illegal gratification by the appellant requesting for taking suitable action in the matter. He also produced 15 currency notes each of the denomination of Rs.10/ . P.W. 7 Dy. S.P. Mahavir Prasad directed P.W. 3 Prahlad Narayan to bring two persons to witness the search and accordingly P.W. 1 Ram Babu and P.W. 2 Keshar Mal were requested to join the raiding party. 15 currency notes produced by the complainant were smeared with phenolphthalein powder and a memorandum of the same was prepared. The raiding party led by P.W. 7 Dy. S.P. Mahavir Prasad and including the complainant Rajendra Dutt, two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal, P.W. 3 Prahlad Narayan, a clerk in the Office of the Anti Corruption Department, started by a jeep driven by P.W. 6 Bajrang Singh to go to the residence of the appellant. Office and residence of the appellant are situated in the same building. Complainant Rajendra Dutt and the two motbirs Ram Babu and Keshar Mal proceeded ahead and entered into the room used as residential portion of the building. Ram Babu and Keshar Mal stopped in the verandah and the complainant Rajendra Dutt went inside. Appellant was seen sitting on a cot. On inquiry by complainant Rajendra Dutt appellant replied that he was not well 572 and that he was suffering from cold Appellant then inquired whether complainant Rajendra Dutt had brought the money and the complainant replied that he had brought the money and handed over marked currency notes 15 in number each of the demonination of Rs. 10/ which the appellant accepted and put the same under his pillow. Rajendra Dutt came out in the verandah and as instructed, gave the agreed signal whereupon Dy. S.P. Mahavir Prasad, the two motbirs and others entered the room. Mahavir Prasad introduced himself as Dy. S.P. ACD, and asked the appellant whether he had accepted Rs. 150/ as and by way of bribe from complainant Rajendra Dutt. Appellant denied having accepted any bribe or any money from Rajendra Dutt whereupon a search of his person was taken. When the search of the person of the accused was being taken motbirs Ram Babu and Keshar Mal pointed towards the pillow indicating that the bribe taken by the appellant was kept underneath the pillow. P.W. 6 Driver Bajrang Singh was asked to lift the currency notes and the numbers were tallied with the memorandum prepared earlier. Hands of the accused were dipped in the solution of sodium carbonate which turned pink. After the memorandum was completed recording all these facts and after completing investigation sanction was obtained and the appellant was prosecuted for the aforementioned offences. By the time the case came up for trial complainant Rajendra Dutt was dead and his evidence was not available. Prosecution examined the two motbirs Ram Babu and Keshar Mal, Dy. SP, ACD Mahavir Prasad, Clerk Prahlad Narayan, Driver Bajrang Singh and two others. Statement of the accused was recorded under section 313 of the Code of Criminal Procedure and he offered himself as a witness in his defence. In his evidence he stated that on the date of occurrence around 4.30 p.m. when he was sitting in his cot complainant Rajendra Dutt came and took a seat in the chair placed nearby. Appellant enquired why he had come and whether he had brought any written complaint against Clerk Mr. Singhal. According to him, the complainant replied that action be taken against Singhal by recording his statement whereupon the appellant said that if the complainant has any grievance he should come with a written complaint. Appellant further stated that thereafter he went to the bath room for spitting cough and he came out and sat on the cot. Complainant Rajendra Dutt enquired whether he can drink water from a jug which was lying there. Thereafter Rajendra Dutt went 573 out of the room and soon thereafter 8 persons including Rajendra Dutt entered the room. He stated that two of the members of the raiding party caught his hands and when he tried to get himself released from the grip of those persons the grip tightened. One of the members of the raiding party then told him that he was Dy. SP, ACD, Ajmer and called upon him to produce Rs. 150/ he had taken from Rajendra Dutt. Appellant stated that he immediately told the Dy. SP that he had not accepted any money from Rajendra Dutt whereupon the Dy. SP came near him and put his hand in the pocket of the garment put on by the appellant. Appellant objected to any search being taken and insisted on keeping two respectable persons present. He further stated that Dy. SP quarrelled with him and then he sent a telephone message to S.P, Ajmer that a Factory Inspector has quarrelled with him and he should be provided with extra police help. Thereafter his hands were dipped in a solution but the colour of the solution did not change and remained white. Appellant then told the Dy. SP that Rajendra Dutt had come to complain against one Singhal, a Clerk and in support of this he produced Ext. D 2 marked collectively in respect of five letters. At this stage the Dy. SP according to the appellant asked Rajendra Dutt why he had given a false signal whereupon the complainant Rajendra Dutt informed the Dy SP that the bribe money was lying under the pillow whereupon the Dy SP removed the pillow and collected the currency notes. He further stated that he has been involved in this false case at the instance of K.C. Sogani, Factory Manager of Krishna Mills, Beawar. This was broadly the defence of the appellant as collected from his evidence. The learned special Judge noted the fact that the complainant Rajendra Dutt was not available and, therefore, the first demand at the Factory of Rajendra Dutt on November 20, 1974, has not been proved. The learned Judge, however, held that the evidence of two motbirs Ram Babu and Keshar Mal was reliable and was amply corroborated by the recovery of currency notes as well as the presence of phenolphthalein powder on the hands of the accused. The learned Judge rejected the defence version that the currency notes were planted when the appellant had gone into the bath room. The learned Judge accordingly convicted and sentenced the appellant as mentioned hereinbefore. The appellant having unsuccessfully appealed to the Rajasthan High Court, has filed this appeal by special leave. 574 Mr. Frank Anthony, learned counsel for the appellant contended that there are certain features of this case which would convincingly show that the prosecution case cannot be accepted. He enumerated the circumstances as: (i) absence of name of the appellant in the F.I.R. Ext. P 12; (ii) absence of evidence of demand as on November 20, 1974; (iii) absence of any prior arrangement where and when the complainant was to meet the appellant and, therefore, the trap could not be successfully arranged which might permit an inference that the whole story of acceptance of bribe money is concocted; (iv) further two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal were petty clerks specially selected by P.W. 3 Prahlad Narayan; (v) in their evidence they have tried to improve upon the prosecution version which shows their unconcealed interest in the success of the trap which would render them partisan witnesses; (vi) there are certain omissions in the evidence of the prosecution witnesses which may indicate that the defence version of planting the currency notes when the appellant had gone to bath room is probabilised; (vii) that no inference be drawn from the fact that when hands of the appellant were dipped in the sodium carbonate solution it turned pink because admittedly when hands of the accused were caught by the members of the raiding party one or the other of them may have transmitted phenolphthalein powder to the hands of the appellant. Complainant Rajendra Dutt on whose complaint a trap was arranged was dead by the time the case came up for trial and his evidence was not available to the prosecution. However, the complaint Ext. P 12 filed by him was admitted in evidence because P.W. 7 Mahavir Prasad, the Dy SP who recorded the same gave evidence about the same. The averments in the complaint even in the background of these facts would not provide substantive evidence and the only use to which it can be put is that a complaint of this nature was filed which tends to explain the subsequent actions taken by the Dy SP. High Court has examined the evidence of two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal, and also the evidence of P.W. 7 Mahavir Prasad and agreed with the findings recorded by the trial court. We need not examine the evidence afresh but limit our examination to specific contentions raised by Mr. Anthony. The first contention is that the name of the appellant Kishan Chand Mangal is not to be found in Ext. That is true, but 575 what is stated in Ext. P 12 is that a Factory Inspector accompanied by his friend visited the factory of the appellant and demanded a bribe. Now, the appellant in his evidence as DW 1 has stated that complainant Rajendra Dutt did come to his house on November 22, 1974, around 4.30 p.m. Appellant further proceeds to say that Rajendra Dutt had some grievance against a clerk Singhal and appellant insisted upon giving a written complaint at the time of the visit of Rajendra Dutt. If Rajendra Dutt as is now contended wanted to falsely implicate the accused there is no reason why he would not mention the name of the appellant in Ext. On the contrary the absence of the name of the appellant in Ext. P 12 would indicate that probably the appellant had visited the factory of Rajendra Dutt after a long time and that is what transpires from Ext. P 12 that the visit of the appellant was after a year and half. It is reasonable to infer that Rajendra Dutt did not know the name of the appellant but knew him by the designation of his office as Factory Inspector. Therefore, the absence of name of Kishan Chand Mangal in Ext. P 12 is hardly of any significance. It was next contended that once Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on November 20, 1974, and it is not open to the Court to spell out the demand from the contents of Ext. It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial. It is equally true that the F.I.R. lodged by him on November 22, 1974, cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant. Such an F.I.R. would not be covered by any of the clauses of sections 32 and 33 of the Evidence Act and would not be admissible as substantive evidence. The question still remains whether there is any evidence of demand of bribe on November 20, 1974, in this case. A fact may be proved either by direct testimony or by circumstantial evidence If appellant did not visit the Factory of Rajendra Dutt on November 20, 1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy. SP, ACD on November 22, 1974, his producing currency notes worth Rs. 150; a superior officer like the Dy SP, ACD, making all arrangements for the trap and the raiding party going to the house of the accused on November 22, 1974. The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted. Coupled with this, the fact that Keshar Mal, P.W. 2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on 576 entering the room asked the appellant, 'Hallo, how do you do '. He further stated that the appellant replied, 'I am sick and suffering from cold '. He deposed that thereafter the appellant asked, 'Have you brought the money ', whereupon complainant Rajendra Dutt replied, Yes, I have brought the money '. He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by P.W. 2 Keshar Mal. But Mr. Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation. Simultaneously it was pointed out that the other motbir Ram Babu is totally silent in his evidence about this conversation between the appellant and the complainant. Undoubtedly, the omission in the police statement of Keshar Mal and non mentioning all these facts by the co motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant. Therefore, it is not proper to say that there is no evidence of the demand of bribe as on November 20, 1974. It was next contended that if a bribe is demanded and agreed to be paid and if the complainant was contemplating not to pay the bribe but was thinking of initiating action against the officer demanding the bribe, obviously for the success of the trap to be arranged the time and place of meeting would be arranged and if it be so it would be mentioned in the F.I.R. It was said that the very absence of it would show that there was neither a demand of bribe nor any action was contemplated on November 20, 1974, as is now sought to be made out and, therefore, the court should not accept any evidence with regard to the trap. In view of the admission of the appellant in his evidence that Rajendra Dutt followed by a raiding party came to his house also used as residence cum office around 4.30 p.m. on November 22, 1974, omission to mention about the time and place of future meeting in the F.I.R. Ext. P 12 loses all significance. It is equally possible that on the very day when the appellant visited the factory of Rajendra Dutt and demanded bribe, Rajendra Dutt may 577 not have immediately planned to rush to the Anti Corruption Department. He had declined to give the bribe. In his view his factory was not covered by the Factories Act. These are the averments in Ext. They are not being relied upon as substantive evidence but are used to explain the conduct of Rajendra Dutt which has evidentiary value. If Rajendra Dutt did not negotiate giving the bribe and did not agree to give the bribe though the appellant persisted in the demand and threatened to involve him in court cases the question of any arrangement for any time and place for giving the bribe does not arise and obviously it could not have found its place in the F.I.R. Such things find mention in a F.I.R. only when the victim agrees to grease the palms of the officer. Absence in such a situation of such averments in Ext. P 12 in this case is both natural and obvious. The next contention is that once Rajendra Dutt is not available to give evidence not only of the first demand but also the payment of bribe pursuant to the demand, the evidence of two motbirs assumes considerable importance. It was urged that both the motbirs are some petty clerks and it would be both unwise and dangerous to place implicit reliance on their testimony to convict the Government servant. Factually it is not correct to say that both the motbirs are petty clerks. Ram Babu was serving as a clerk in the Central Bank of India and Keshar Mal was serving as a teacher in Middle School at the relevant time. It is unfortunate that thirty five years after independence and in this age of common man, there is still not the eclipse of the high brow. Sanctity of word made dependent upon the office held or wealth acquired is a nauseating phenomenon. Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons. In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to officewise, wealthwise lower strata of society are to be disbelieved or rejected as unworthy of belief solely on the ground of their humble position in society. The converse unfortunately appears to be true. The submission was sought to be buttressed by reference to Khairati Lal vs The State(1). A learned single judge of the High Court rejected the testimony in that case of P.W. 2 Brij Nandan and P.W. 3 Krishan Kumar observing that they are petty clerks and cannot be styled as independent witnesses. We have moved far away in seventeen years and this 578 approach does not commend to us. We say no more. Therefore, without further discussing this aspect, we are utterly disinclined to reject the testimony of the two motbirs accepted as wholly reliable by the learned Special Judge and the High Court on the sole ground that they are petty clerks as if that by itself is sufficient to reject their testimony. That is a wholly irrelevant consideration. As a second string to the bow it was urged that Ram Babu was serving at the relevant time as a Clerk in the Central Bank of India and Keshar Mal was a teacher in the middle school at Ajmer and both of them were, therefore, by virtue of their service, likely to be under the police influence. It is difficult to appreciate this contention. Undoubtedly Ram Babu was a Clerk in a nationalised bank and it may be that officers of Anti Corruption Department may have jurisdiction to investigate lapses on the part of clerks in nationalised banks. It is not clear whether Keshar Mal who was serving in a Middle School was a Government employee or the school itself was a Government School. It may be that the school may be receiving grant but if all institutions which receive grant from Government and are, therefore, styled as Government Departments, and have to be treated under the police influence then the net will have to be spread so wide not to exclude any one as independent of police influence. We find no justification in the submission that the two motbirs were persons not likely to be independent of police influence. Both of them have been accepted as independent witnesses and they do satisfy the test of witnesses independent of police influence. Reference in this connection was made to Raghbir Singh vs State of Punjab(1), wherein this Court adversely commented upon selecting one Makhan, a sweeper in the whole time employment of police, as a witness in a trap case observing that the Anti Corruption Department should insist on observing the safeguard of selecting independent persons as witnesses as scrupulously as possible for the protection of the public servants against whom a trap may have to be laid. Makhan, a sweeper in the whole time employment of police can obviously not be said to be independent of police influence but how does he compare with a clerk in a nationalised bank and a teacher in a middle school ? It, therefore, cannot be said that the two motbirs could not be styled as independent witnesses. In passing it was submitted that Rajendra Dutt and Ram Babu must have intimately known each other because Rajendra Dutt had an account in the same branch in which Ram Babu was working as 579 clerk. If a Bank Clerk is supposed to be intimately connected with each account holder in the bank, banking service would receive encomiums from the society. But it is difficult to accept the submission that on this account Ram Babu could not be said to be independent witness and let it be recalled that by the time Ram Babu came to give evidence Rajendra Dutt was already dead. The next contention is that even if Ram Babu and Keshar Mal are independent witnesses there are certain inherent infirmities in their evidence which would render their evidence untrustworthy of belief. Before we examine this submission in detail let it be reiterated that the learned special judge who tried the case and had seen both these witnesses giving evidence has observed that P.W. 1 Ram Babu and P.W. 2 Keshar Mal are independent witnesses and there is nothing in their testimony which may induce any distrust about the facts stated by them and their evidence was relied upon. The learned judge of the High Court observed that both the witnesses are independent witnesses and there is no reason why their evidence should not be relied upon. It is now time to briefly refer to some of the omissions and contradictions brought to our notice with a view to persuading us to reject the testimony of both these witnesses. It was pointed out that according to Ram Babu both he and Keshar Mal told the Dy SP that the currency notes were under the pillow while according to Keshar Mal it was Ram Babu who pointed out that the currency notes were under the pillow. We find no contradiction in this statement because if plural used by Ram Babu was to be relied upon as a contradiction, cross examination ought to have been directed on this point. It is necessary to point out that the cross examination of both the witnesses is scrappy, jumpy and not pursuant to any set theory of defence. It is worthwhile to note that there is not the slightest challenge to the statement of both these witnesses that while waiting in the lobby outside the room both of them saw Rajendra Dutt giving marked currency notes to the appellant and appellant accepting the same and keeping them underneath the pillow. It was also urged that both the witnesses in their respective statements in the course of investigation have not referred that they pointed out that the currency notes were kept under the pillow. A further omission was pointed out that while Mahavir Prasad has stated that accused started quarrelling with him which necessitated summoning additional police help, both the witnesses while referring to the 580 quarrel picked up by the appellant so as to support the evidence of Mahavir Prasad have failed to refer to this aspect in their statements in the course investigation. These are omissions of trivial details and have hardly any bearing on the main part of the prosecution case. Along with this the earlier omission in the statement of Keshar Mal already discussed was reiterated. In our opinion the so called inner variations between the evidence of these two witnesses and omissions of trivial details would not cause any dent in the testimony of these two witnesses. Mr. Anthony after referring to Darshan Lal vs Delhi Administration(1), urged that if Mahavir Prasad took search of the appellant for recovering the bribe it would show that neither Ram Babu nor Keshar Mal had seen appellant keeping marked currency notes under the pillow. Such an inference cannot be drawn. Ordinarily the police officer would start searching the person of appellant and while he was doing that act, he was told where the currency notes were kept by the appellant. Therefore, no such inference is permissible. It was lastly urged that the court should not be influenced by the fact that when the hands of the appellant were dipped in a solution of sodium carbonate it turned pink which would affirmatively show the presence of phenolphthalein powder on the tips of fingers of the hands of the appellant. The fact remains that the solution did turn pink when the hands of the appellant were dipped in it. The explanation of the appellant is that both his hands were caught by the members of the raiding party and it is possible that the members of the raiding party whose hands must have already been soiled with the phenolphthalein powder when the arrangements were being made for laying the trap they must have transmitted the same to the hands of the accused. This contention stands belied by the evidence on record. Mahavir Prasad has deposed that he asked one Ganga Singh to demonstrate the phenolphthalein powder test. After that he was directed to wash his hands. No other member of the raiding party touched the phenolphthalein powder at the time of demonstration. Ganga Singh was a member of the raiding party but when the hands of the accused were sought to be dipped in the solution this task was assigned to SI Satya Narain. Undoubtedly there is nothing to show that his hands were soiled with phenolphthalein powder. The hands of Rajendra Dutt must have been soiled with 581 phenalphthalein powder because he took out the currency notes from his diary and passed them on to the appellant. But it is not suggested that Rajendra Dutt caught the hands of the appellant. Therefore, it is not possible to accept the submission that when the hands of the appellant were caught in the ensuing quarrel between him and the Dy SP Mahavir Prasad, phenolphthalein powder must have been transmitted by persons holding the hands of the appellant. This tell tale circumstance would lend ample independent corroboration if there be any need to the evidence of Ram Babu and Keshar Mal that they saw Rajendra Dutt giving marked currency notes to the appellant and the appellant accepting the same and putting them underneath the pillow. Mr. Anthony urged that there are certain tell tale circumstances in the case which would render the defence plausible. It was urged that the appellant did not disclose any guilty syndrome when the raiding party entered his room and at the first question he denied having accepted any bribe from Rajendra Dutt. How would these two circumstances be sufficient to reject the otherwise reliable testimony ? A person with a strong will would not be upset and may remain cool and collected. The appellant did pick up a quarrel with the Dy SP. Why ? His suggestion that he insisted on two independent witnesses being kept present appears to be an afterthought. The fact that the appellant picked up a quarrel is borne out from the evidence of the persons present there and by the action of the Dy SP in summoning additional police help. Therefore, we find no circumstances which would impinge upon the prosecution case. We read the entire evidence of two motbirs Ram Babu and Keshar Mal, evidence of Dy SP Mahavir Prasad, Ext. P 12, the F.I.R., and we are in agreement with the High Court that the case has been proved beyond a shadow of reasonable doubt. The evidence of appellant himself does not raise a plausible defence and has been rightly negatived. Mr. Anthony further urged that the appellant did not demand bribe because there is no such evidence and that even if Rajendra Dutt appears to have given some currency notes the appellant was an unwilling victim and the court must frown upon such attempts of the police to make government servants commit offence. He relied 582 upon the oft quoted passage in Brannan vs Peek(1). In that case the finding was that when the second time the police constable attempted to give a bet the accused showed his reluctance to accept the same. That was also the finding of the justices. The Court frowned upon the police officers in the absence of an Act of Parliament going to the place of the accused so as to induce him to commit an offence. We fail to see how this observation has any relevance in the facts of this case. Once the suggestion that there was a demand of bribe is accepted the appellant could not be said to be an unwilling victim nor a fence sitter who was induced to fall a victim to the trap. Lastly it was urged that the court would not be justifiedni raising a presumption under section 4 (1) of the Prevention of Corruption Act, 1947. In the facts of this case and in the absence of presumption even if Rajendra Dutt gave some money to the appellant that by itself would not establish the offence and the case must fail. Reliance was placed on Bansi Lal Yadav vs State of Bihar(2). In that case the defence of the accused was that currency notes were thrust in his pocket. Taking cue from this statement, the court held that the acceptance of an amount other than legal remuneration having been admitted the presumption would arise under section 4(1) and the burden would shift to the accused. It is in this context that this court held that where the accused says that involuntarily the amount was thrust in his pocket he could not be said to have accepted or obtained for himself any gratification other than legal remuneration which alone permits the presumption to be raised. Facts in this case being a demand and voluntarily acceptance, the presumption would squarely arise and has been rightly raised. Reliance was also placed on the decision of this Court in Sultan Singh vs State of Rajasthan(3). In that case the explanation of the appellant was that Rs. 100 was paid to him towards the arrears of revenue and in the absence of reliable evidence to the contrary the explanation was held acceptable. This is a decision on the facts of that case and would be hardly of any assistance in dealing with the points raised in this case. 583 Therefore, the charge is brought home to the accused and he has been rightly convicted and the sentence awarded being the minimum, no case is made out for interfering with the same. Accordingly this appeal fails and is dismissed. The bail bond of the appellant is cancelled and he must surrender to serve out the sentence. H.L.C. Appeal dismissed.

Seven or eight armed dacoits entered a bank at Bayana, terrorised and beat up its employees, looted currency notes worth Rs. 15, 253/ , put the same in a black box and drove away with the booty in an Ambassador car. The F.I.R. was lodged within half an hour of the dacoity and wireless messages were sent out for interception of the car. Soon thereafter, an Ambassador car having seven persons seated in it and being driven in panic arrived near Weir from the direction of Bayana and met with an accident. The police and the public surrounded the occupants of the car when they came out but they tried to escape by firing from their pistols. They were chased and arrested but not before some members of the public received injuries on account of the firing. The prosecution case was that it was the respondents who looted the bank, escaped in the car and were chased and arrested; that each of them was carrying a bundle of hundred currency notes of Rs. 10/ each; that the black box found in the car contained currency notes of the value of Rs. 6,800 belonging to the looted bank; and that live cartridges and knives had been recovered from the possession of some of the respondents. At the trial, the respondents admitted that they had been arrested near Weir but denied any hand in the dacoity. The Sessions Judge rejected their plea and convicted them under section 395, I.P.C. The High Court acquitted the respondents on three grounds: (i) that the evidence regarding identification of the respondents was not convincing as some of the witnesses who had identified the dacoits in jail had failed to identify them before the trial court; (ii) that the evidence regarding recovery of stolen property was not acceptable as the recovery memos were not genuine, the knives and cartridges had not been produced before the court, and the story that each of the respondents was carrying currency notes worth Rs. 1000 while running away after leaving a sum of Rs. 6,800 in the black box was unnatural; and (iii) that the allegation that the respondents had escaped in the Ambassador car and had come out of that car after it met with an accident was not acceptable in the absence of an entry relating to the number of the car in the General Diary of the Police. Allowing the appeal, ^ HELD: If two views of the evidence were reasonably possible in this appeal by special leave against acquittal, the court would not have substituted 54 its own assessment of the evidence for that of the High Court. But it is impossible on any hypothesis to accept the conclusion of the High Court. It is difficult in an incident of this kind to have evidence as strong and clinching as it is before the Court. The only conclusion which one can come to upon that evidence is that the charge has been brought home to the accused. [57 E F; 60 B] (b) The judgment of the High Court is severely laboured and unrealistic. Evidence which is incontrovertible has been rejected on suspicion and surmises. Witnesses who had no axe to grind and had no personal motive to implicate the accused on a false charge have been disbelieved on feeble considerations. And the recovery of incriminating articles has been by passed and disbelieved by characterising it as unnatural and incredible. Different crimes have different patterns and the offenders improvise their strategy according to the exigencies of the occasion. The prosecution story has been rejected as not fitting in with the common course of events on the supposition and insistence that a crime of the present nature had to conform to a pattern of the kind which the High Court harboured in its mind. [57 F H] (i) The High Court gave exaggerated importance to the infirmities attaching to the ability of the witnesses to identify the respondents and overlooked the fact that they had been arrested red handed and on the spot. The incident which took place in the bank, the attempt made by the offenders to escape and their pursuit by the police and the public, which had all been proved by the most clear and cogent evidence, were but links in the same chain of causation and were parts of one and the same transaction. [58 A B & F] (ii) There was no infirmity attaching to the evidence of the Station House Officer, Bayana who was examined as a court witness by the High Court itself, regarding the recovery of the black box from the car and the High Court was not justified in rejecting his evidence. The submission that the box could have been easily planted by the police after the respondents were arrested is wholly unjustified. The box was not left in the car as a matter of sweet volition. The respondents had no option save to abandon it in the car when they were surrounded by the police and the public. What is natural by the test of common experience is that thieves, while running away in order to escape from those who are chasing them, would leave a biggish article containing the loot where it lies. [59 D E] (iii) The circumstance that the number of the car was not mentioned in the police diary was a petty matter in the midst of a large mass of good evidence connecting the respondents with the crime. [59 G]

Appeal No. 1345 of 1986. From the Judgment and Order dated 29.8.1984 of the Madhya Pradesh High Court in Misc. Petition No.613 of 1983. Avadh Behari Rohtagi. S.K. Gambhir, Vivek Gambhir and K.K. Mohan for the Appellants. U.R. Lalit, S.S. Khanduja, Y.P. Dhingra, B.K Satija and Surinder Karnai for the Respondents. The Judgment of the Court was delivered by 260 KASLIWAL, J. In all the above appeals the parties are the same and the controversies raised are intimately con nected and dependent on each other, hence all the cases are disposed of by one single order. Land measuring 19 bighas was granted by the ruler of the erstwhile State of Ratlam in favour of ancestors of respond ents Shantilal and Poonam Chand Pitaliyas (hereinafter referred to as 'Pitaliyas ') for installation of a Ginning factory. Ancestors of Kantilal Jhalani and other appellants (hereinafter referred to as 'Jhalanis ') entered into part nership with Pitaliyas and the partnership started a Ginning factory on a portion of the above 19 bighas of land. The names of Jhalanis and Pitaliyas were recorded in the revenue records in respect of the entire land. The above 19 bighas of land had some different survey numbers but subsequently at the time of settlement in Ratlam in the year 1956 57, the numbers were changed to survey numbers 120 and 121. Survey No. 120 comprised of 2 biswas and survey No.121 of 18 bighas and 18 biswas. According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhala nis purchased the said land in an auction. Thereafter, an application was moved by the Jhalanis on 13th April, 1951 for mutation of their names before the Tehsildar in respect of the entire lands bearing survey Nos. 120 and 121 leaving such portion of the land on which the Ginniing factory was standing. The Tehsildar vide his order dated 20th February, 1953 allowed the application and passed an order mutating the names of Jhalanis on the entire 19 bighas of land. The said mutation was allowed on the basis of compromise between Pitaliyas and Jhalanis and also on the basis of a sale certificate issued by the Civil Court. The Town Improvement Trust, Ratlam (hereinafter referred to as 'the Trust ') started acquisition proceedings for a housing scheme under the provisions of the Town Improvement Trust Act, 1960 (hereinafter referred to as 'the Act ') and issued a notification on 28th August, 1964 under Sec.68 of the Act. Survey Nos. 120 and 121 were shown in the notifica tion leaving out some area of survey No.121. In the acquisi tion proceedings, the Trust obtained possession of the acquired land on 21st March, 1968. The Collector started svomotu proceedings under Sec.50 of the Madhya Pradesh Land Revenue Code, 1959 and issued a notice on 17th December, 1970 to the Jhalanis stating that the mutation proceedings did not appear to be legal. It is not necessary to state the details of other proceedings by which the Jhalanis went to the higher authorities as ulti mately the matter came back to the Collector by remand. The Jhalanis contested the proceedings before the Collector and prayed for the cancellation of the 261 notice dated 15th February, 1972 which was issued afresh by the Collector after the remand of the case to him. The Collector ultimately by an order dated 31st March, 1977 set aside the order of mutation passed by the Tehsildar and gave a direction that the Tehsildar, Ratlam will again make the same entry in the revenue records which was done previously in respect of disputed land. It was further directed that thereafter the Tehsildar will do proper investigation and analyse all the concerned facts and events which had hap pened in the case and take steps for making the record upto date. Particularly he will see by which lease and on what conditions originally how much land was given for factory purpose by the State and whether that lease is effective or lapsed. An appeal filed by the Jhalanis to the Additional Commissioner was dismissed by order dated 11th December, 1981. The Jhalanis then filed an appeal before the Board of Revenue. This appeal filed by the Jhalanis was allowed in their favour by the Board of Revenue by order dated 26th March, 1983. The Board inter alia held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar. The Pitaliyas then filed a writ petition before the High Court for setting aside the order of the Board of Revenue. The High Court by order dated 29th August, 1984 allowed the Writ Petition and set aside the order of the Board of Revenue and restored the orders of the Additional Commissioner and the Collector. Aggrieved against the aforesaid judgment of the High Court, the Jhalanis have filed Civil Appeal No. 1345 of 1986 by grant of Special leave. In the acquisition proceedings the question of compensa tion was decided by the Tribunal constituted under Sec.73 of the Act. The Tribunal by its order dated 30th November, 1973 held that Pitaliyas had no right to claim compensation and the Jhalanis alone were entitled to the entire amount of compensation. The Order of the Tribunal was challenged by Pitaliyas, for apportionment of the amount of compensation, also by Jhalanis for increasing the amount of compensation and by the trust for reducing the amount of compensation by filing separate appeals in the High Court. The High Court by its order dated 29th July, 1984 allowed the appeal filed by the Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis. The High Court dismissed the appeal filed on behalf of the Trust. The High Court allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 0.65 paisa per Sq. 10 0.75 paisa per Sq. Aggrieved against the afore said judgment of the High Court in acquisition proceedings, the Jhalanis have filed Civil Appeal No. 1346 of 1986 and the Trust has flied appeal No.3426 of 1987 by grant of special leave. 262 We have heard learned counsel for the parties and have thoroughly perused the record. The land in question was given by the Ruler of erstwhile State of Ratlam for establishing a Cotton Ginning factory at Ratlam. The deed of partnership between the Pitaliyas and Jhalanis has not been produced on the record of this case but the admitted position is that the Janlabandi entries in the revenue records of the year 1921 22 show tllat survey Nos. 1326 to 1336, 1337/2 and 1340 to 1342 (subsequently changed to Survey Nos. 120 and 121), stood in the name of Keshrimal Vardhman Pitaliya and Keshrimalji Dhanrajji Jhala ni in equal shares. Keshrimal Vardhman Pitaliya proprietor of firm Vardhman Keshrimal died sometime prior to 1932 and he left behind two sons Sagarmal and Vinayakrao Pitaliya who became the proprietors of Hindu Undivided Family firm Vard human Keshrimal. Sagarmal and Vinayakrao Pitaliyas did not apply for the mutation of their names in the revenue re cords, after the death of their father Keshrimal Pitaliya. Keshrimal Dhanraj Jhalani had to recover some amount from the firm Vardhman Keshrimal and he filed a civil suit for the recovery of the money against Sagarmal and Vinayakrao Pitaliyas. A degree was passed in favour of Keshrimal Dhan raj Jhalani and they filed an application for execution of the decree. In the execution case No. 161/42 the right, title and interest of Pitaliyas in the Ginning Factory were sold in auction for Rs.6541 and which was purchased by Keshrimal Dhanraj Jhalani on 2nd November, 1946. A sale certificate was also issued in favour of Keshrimal Dhanraj Jhalani by the Civil Court Ratlam on 3rd October, 1950. On the basis of this sale certificate Keshrimal Dhanraj Jhalani applied for mutation in the revenue records on 3rd April, 1951 before the Tehsildar, Ratlam. Alongwith the application Keshrimal Jhalani filed a copy of the sale certificate and a certified copy of the Jamabandi of the land of Samwar year 20,35 (1948 49 A.D). During the pendency of this mutation application Vinayakrao Pitaliya died leaving no heirs. Sagarmal who was Karta of the Joint Hindu Family filed objections to the mutation application on 17th March. It is important to note that in these objections Sagannal clearly raised the ground that in the auction proceedings only movable property of the factory was sold and as such Keshrimal Dhanraj Jhalani had no right to clam mutation of the entire agricultural land in his favour. Thereafter an agreement took place between Sagarmal Pitaliya and Keshrimal Dhanraj Jhalani on 16th October. This agreement made in writing was filed before the Tehsildar in which Sagarmal Pitaliya agreed to with draw his objections for the mutation of his share in 19 bighas of land. in favour of Shri Keshri mal Dhanraj Jhalani in lieu of Shri Keshrimal Dhanraj JhaIa ni having agreed not to recover Rs.4941. being the balance amount of decree passed in suit No.2 of 1932 against Pita liyas. Apart from the 263 aforesaid compromise application the statement of Sagarmal Pitaliya was also recorded on 16th October, 1952 itself and Sagarmal clearly made a statement that he was withdrawing his objections as regards mutation in respect of his share in the land of 19 bighas and that he had no objection to the mutation of Shri Keshrimal Dhanraj Jahalani 's name in re spect of the land in dispute. Thereafter, the Teshsildar rejected the objections filed by Sagarmal and passed an order on 20th February, 1953 granting mutations in the name of Shri Keshrimal Dhanraj Jhalani. After this order of mutation passed by the Tehsildar on 20th February, 1953 Sagaramal or any other member of the family of Pitaliyas did not take any steps for challenging the aforesaid order of the Tehsildar. It is further proved on record that thereaf ter names of Jhalanis alone was continued in the revenue records in respect of the entire 19 bighas of land. The land acquisition proceedings then commenced in the year 1964 and possession over the land was taken by the Trust on 21st March, 1968 from Jhalanis. The Collector took suo motu proceedings in 1970 and passed an order on 31st March, 1977 setting aside the order of the Tehsildar. In the above set of circumstances Pitaliyas came forward and claimed half share in the compensation amount in land acquicition pro ceedings before the Tribunal. The Tribunal rejected the claim of the Pitaliyas but High Court by order dated 29th August,1984 granted half share in favour of Pitaliyas taking the view that they were persons interested under the Town Improvement Trust Act. On the same day by a separate judg ment the High Court set aside the order of Board of Revenue and maintained the order of the Additional Commissioner and the Collector passed in mutation proceedings. After going through the entire record , 'red hearing the arguments at length, we are clearly of the view that the High Court went wrong in passing the impugned orders. As already mentioned above from the year 1922 onwards the entries in the Revenue records in respect of 19 bighas of land was made in favour of Jhalanis and Pitaliyas both in equal share. Jhalanis had a decree against Pitaliyas and in execution of said decree share of Pitaliyas was auctioned and was purchased by Jhalanis for a sum of Rs. 6541. Sale certificate was also issued in favour of Jhalanis. According to Jhalanis the half share of Pitaliyas in the land was also sold and on that basis an application was filed before the Tehsildar for ranration of the entire land in their favour. According to Sagarmal Pitaliya who was also Karta of Joint Hindu Family, no such land was sold in auction. 11 may be noted that the bid in auction was for an amount of Rs.6541 but it did not satisfy the entire decretal amount and the balance of Rs.4941 still remained due against the Pitaliyas Judgment debtors. In view of these circumstances a compromise took place between the parties according to which Sagarmal agreed to withdraw his objections in consid eration of 264 satisfaction of the aforesaid amount of Rs.4941 outstanding against him. On 16th October, 1952 the compromise applica tion was filed in writing and statement of Sagarmal. was also recorded in which he clearly agreed that he will not claim any right in the land and withdraw his objections and the amount of Rs.4941 was taken as satisfied and Jhalanis agreed not to recover the aforesaid amount of Rs.4941. It is an admitted position that the order passed by the Tehsildar on 20th February, 1953 rejecting the objections of Sagarmal Pitaliya and mutating the name of Jhalanis for the entire land, was not challenged and the same became final. Mr.U.R.Lalit, learned Sr. Advocate appearing on behalf of Pitaliyas did not argue, that the compromise application filed on 16th October, 1952 and the statement recorded on the same day were forged or not genuine. The only submission made by Mr. Lalit was that any order passed in mutation proceedings cannot confer any legal title in favour of Jhalanis nor such order can divest the ownership rights of Pitaliyas in the agricultural land. We do not find any force in this submission. Admittedly, there was a decree of a Civil Court and in execution of the same the properties were auctioned. Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auc tion proceedings, the same was settled at rest by making a compromise between the parties. Not only that after the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and also continued to remain in possession. It is also proved that the Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings. It is no where proved on record that the Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compensation before the Tribunal. The Collector in our view had no justification at all to have initiated such proceed ings suo motu in 1970 after 17 years of the order passed by the Tehsildar. Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation. There was also no Justification for entering the names of pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th Febru ary,1953 after 17 years, As already mentioned above, Tehsil dar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement of Sagarmal marie before him on 16.10.52. Now, we shall deal with Civil Appeal No.3426 of 1987 filed by the Trust. It was argued on behalf of the appel lant Trust that in the erstwhile State of Ratlam one bigha was equivalent to 21511 Sq. as per Jantri 265 Milan Bigha Va Ekad prepared in 1911 and the lower courts wrongly calculated the area acquired by treating one bigha equivalent to 22500 Sq. as now prevalent according to the prescribed standards. We do not find any force in the abvoe contention. No such argument was raised before the Tribunal and it was raised for the first time before the High Court. The High Court rejected the aforesaid argument on the ground that admittedly at present one bigha was equivalent to 22500 Sq. and no contention was raised before the Tribunal that one bigha was equivalent to 21511 Sq. prevalent in the erstwhile State of Ratlam. This being a controvercial question of fact and the other side having given no chance to lead any evidence on this point it was difficult to rely on the Jantri Milan Bigha Va Ekad. The High Court thus held that the compensation for one Bigha of land would be calculated as equivalent to 22500 Sq. We do not find any error in the aforesaid view taken by the High Court. It was next contended on behalf of the Trust that the Tribunal had awarded compensation at the rate of 0.65 paisa per Sq. and there was no ground or justification for the High Court to have increased the same at the rate of 0.75 paisa per sq. There is some force in the above conten tion raised on behalf of the Trust. The High Court in in creasing the rate of compensation to 0.75 paise per Sq. Ft. has given no reason. The High Court in this regard observed as under: "Thus, after going through the oral as well as documentary evidence and material placed on record and after beatifing the learned counsel for the Trust as also appellant No. 1 and also after going through the case law cited, the question arises at what rate compensation should be paid for the land which is compulso rily acquired. It cannot be disputed that either party No. 1 nor party No.2 was making any use of the land at the time of acquisi tion. On the contrary it was being treated as a waste and fallow land having no importance. There is no satisfactory evidence placed on record to prove that in fact the land was being used as an agricultural land from which certain income was derived. It appears this land gained importance only when the trust proposed to acquire the same. Therefore, though the principles enunciated in the various authorities cited and referred to above are not disputed, we are of opinion that considering the facts and circumstances of the case it would be just, proper and reasonable to award compensation for the land at the rate of 0.75 p. per square feet and not more be cause the price fetched for the developed lands also the price fetched for the small plots of land cannot be taken 266 into consideration for purposes of comparision in respect of such big lands. After all for a developed plot of land the cost of development has also to be taken into consideration which cannot be said to be quite meagre, Besides, admittedly there is a big nala in the land in question, that there was no direct independent road to approach this land and that even the factory was also not working for several years before the acquisition. All these facts indi cate that the potential value of the land even as a building site was not so high. " Learned Distt. Judge after considering large number of documentary evidence placed on record by both the parties arrived to the conclusion that the fair market price of the acquired land on 22nd August, 1964 was 0.65 p. per Sq. The finding recorded by the Distt. Judge in this regard was based on adequate material placed on record and supported by good reasons. In our view the High Court went wrong in increasing the rate from 0.65p. to 0.75p. without any valid reasons whatsoever. As a result of the findings recorded above, the appeal Nos. 1345 and 1346 of 1986 filed by Kanti lal & Ors. are allowed. The appellants therein would alone be entitled to claim the entire amount of compensation. The orders of the High Court, Addl. Commissioner and Collector in the matter of mutation proceedings are set aside and that of the Board of Revenue is upheld. The appeal No.3426 of 1987 filed by the Trust is allowed in part. The market value determined by the High Court at the rate of 0.75p. per Sq. is set aside and the rate determined by the District Judge at 0.65p. per Sq. Ft. is maintained. In the facts and circumstances of the case, there would be no order as to costs. G.N. Appeals allowed.

The land in question was granted by the Ruler of erst while State of Ratlam in favour of ancestors of respondents (Pitaliyas) for installation of a ginning factory. Ancestors of appellants (Jhalanis) entered into a partnership with Pitaliyas and started a ginning factory on a portion of the said land. In the revenue records, in respect of the entire land the names of Jhalanis and Pitaliyas were entered. According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhalanis purchased the said land in an auction. On an application moved by the Jhalanis, the Tehsildar passed an order mutat ing the names of Jhalanis in respect of the entire land. The said mutation was allowed on the basis of compromise between the parties and on the basis of a sale certificate issued by the Civil Court. The Town Improvement Trust started acquisition proceed ings for a housing scheme and acquired certain lands includ ing the land in question. The Collector started suo motu proceedings, issued notice to the Jhalanis and set aside the order of mutation passed by the Tehsildar. An appeal pre ferred by the Jhalanis before the Addi 258 tional Commissioner was dismissed. The Board of Revenue allowed the further appeal and held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar. The Pita liyas then filed a writ petition before the High Court, which was allowed and the order of the Board of Revenue was set aside. Against the said judgment of the High Court, the Jhalanis have preferred an appeal before this Court. In the acquisition proceedings the Tribunal gave a finding that Pitaliyas had no right to claim compensation and Jhalanis alone were entitled to the entire amount of compensation. The order of the Tribunal was challenged by the parties by filing separate appeals before the High Court. The High Court allowed the appeal filed by Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis; it dismissed the appeal filed on behalf of the Trust for reducing compensation and allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 65 paise per sq.ft to 75 paise per sq.ft. Aggrieved against the aforesaid judgment of the High Court in acquisition proceedings, the Jhalanis and the Trust have filed the other two appeals before this Court. Allowing the appeals on the questions of validity of the mutation made and entitlement to receive compensation, and partly allowing the appeal on the question whether enhance ment of compensation was justified, this Court, HELD: 1.1. There was a decree of a Civil Court and in execution of the same the properties were auctioned. Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auction proceedings the same does not survive after the compromise between the parties. In the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and they continued to remain in possession. The Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings. There is nothing on record to show that Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compen sation before the Tribunal. [264 D, E] 1.2. The Collector had no justification at all to have initiated the proceedings suo motu in 1970 after 17 years of the order passed 259 by the Tehsildar. Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation. There was also no justification for entering the names of Pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th February, 1953, after 17 years. The Tehsildar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement made before him on 16.10.1952. [264 F, G] 2. One bigha is equivalent to 22500 sq. and no contention was raised before the Tribunal that one bigha was equivalent to 21511 sq. ft. prevalent in the erstwhile State of Ratlam. For the first time, this point was raised before the High Court. This being a controversial question of fact and the other side did not have the chance to lead any evidence on this point, the High Court rightly negatived it and held that the compensation for one bigha of land would be calculated as equivalent to 22500 sq. [265 A C] 3. The District Judge after consideriug large number of documentary evidence placed on record by both the parties arrived at the conclusion based on good and valid reasons that the fair market price of the acquired land on 22nd August, 1964 was 65 paise per sq. The High Court went wrong in increasing the rate from 65 paise to 75 paise without any valid reasons whatsoever. In the circumstances, enhancement ordered by the High Court is set aside and the compensation determined by the District Judge at the rate of 65 paise per sq. ft. is maintained. [266 C E]

nd the writ petitions of the appellants will have to be heard by the High Court on merits. Since the appellants have applied for amendment of their respective writ petitions and the Court feels that the amendments sought to be made are of such a nature that they require to be considered and dealt with by the High Court, the same are allowed. [400G H; 401A D; F H] 387 3(i). It is difficult to reconcile to the decision in Trilok Singh & Co, 's case. The Court 's attention was not drawn in that case to Rule 8 of the said Rules. Rule 8 to which the court has adverted earlier is the one as substituted by Notification No. 1995/XXIX E 55 (A) 75 dated May 25, 1977. The original rule, however, was to the same effect and under it also the conclusion reached by the Rent Control Inspector contained in his report of the inspection of the building was required to be posted on the notice board of the office of the District Magistrate for the information of the general public, and the order of allotment could not be passed before the expiration of three days from the date of such posting and, if in the meantime any objection was received, not before the disposal of such objection. The District Magistrate was, therefore, not justified in immediately directing the vacancy to be notified and this act on his part was a clear violation of the statutory requirements of Rule 8 and had the result of depriving the appellant firm of an opportunity of hearing which Rule 8 conferred upon it. On this ground alone the appellant firm should have succeeded. The observation of this Court in Trilok Singh & Co.s Case that it was unnecessary for the District Magistrate to hear the appellants before notifying the vacancy does not, therefore, appear to be correct. It equally does not, appear to be correct to hold that an order notifying the vacancy did not injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to and if any objections were filed, they would have to be decided after considering the evidence that the objector or any other person concerned might adduce and that after an order of allotment or release was passed following upon the notification of vacancy, the aggrieved person could file a review application or an appeal under s.18. In so holding the court appears to have overlooked that the stage for objecting to a vacancy being notified was not after it was notified and that under the said Rule 8 the notification of vacancy could only be after the objections were heard and disposed of. [398H; 399A F] 3(ii). It is also difficult to understand how a party who has no right to appear at the original hearing of an application could be said to have a right of review or an appeal against an order passed on that application. From the very nature of things, a right to defend an application in the first instance is a very different matter from a right to seek a review of the order on that application or a right of appeal against that order. In its very nature and scope, an original hearing differs substantially from a review or an appeal party applying for review or an appellant cannot as of right lead evidence Further, it is he who comes before the authority challenging an order passed to his prejudice and is not in the same position as the party against whom an order is sought in the first instance. The correctness of Trilok Singh & Co. 's case is, therefore, open to doubt. [400 B C] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3552 of 1983 From the Judgment and order dated 5.10.1982 of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No, 14310 of 1981. 388 Civil Appeal No. 8553 of 1983 From the Judgment and order dated 5.10.82 of the High Court of Allahabad in Civil Misc. Writ No. 1058 of 1982. Shanti Bhushan, R.K. Jain, R.P. Singh, Advs. with him for the Appellants in C. A. No. 8552/83. Mr. S.N. Kacker, Sr. Adv., Mr. R.B. Mahrotra, Adv. with him for the Respondents in C. A. No. 8552/83. Mr. Soli J. Sorabjee, Sr. Adv., Mr. E.C. Agarwala, Adv. with him for the Appellants in C. A. No. 8553/83. Mr. Anwar Ahmed, Sr. Adv., Mr. Ali Ahmed & Miss Halida Khatoon, Advs. with him for the Respondents in C. A. No. 8553/83. The following Judgment of the Court was delivered by MADON, J. The Appellants in each of the above two Appeals by Special Leave granted by this Court filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India challenging an order notifying a deemed vacancy under sub section (2) of section 12 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972). This Act will hereinafter be referred to in short as "the Act". The High Court dismissed both these petitions holding that they were premature. In coming to this conclusion the High Court relied upon a judgment of a two Judge Bench of this Court in Trilok Singh & Co. vs District Magistrate, Lucknow, & Ors.(1) The said decision of this Court was given prior to the amendment of the Act by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976(U.P. Act No. 28 of 1976) (hereinafter in short referred to as "the 1976 Amendment Act"). The 1976 Amendment Act came into force on July 5, 1976. It is unnecessary for the purpose of deciding these Appeals to set out the facts in great detail The subject matter of Civil Appeal (1) [1976] 3 S.C.R.942 389 No. 8552 of 1983 is a shop bearing Municipal No. 24/34, situate at Mahatma Gandhi Marg, Civil Lines Market, Allahabad. According to the Appellants in this Appeal, the premises were let out to their father, Sheobux Roy, in 1937 and the Appellants ' father commenced carrying on business in the said premises in the name and style of Messrs B.N. Rama & Co. The Appellants ' father died on or about February 3, 1941, and according to these Appellants the tenancy was inherited by them being his sons. Thereafter, there was a partition amongst the Appellants but in spite of it all the three brothers continued to carry on their businesses separately in the same premises though under different names. While according to the Appellants the tenancy continued jointly with all of them, according to the contesting Respondents, who are the landlords, the tenancy rights belonged to the First Appellant, Ganpat Roy, alone, who is carrying on business in the said premises as Messrs B.N. Rama & Co. (Stores) and who paid the rent and used to recover rent from his other brothers in respect of the businesses carried on by them in the said premises. Under section 12 (2) of the, Act, a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition Of "family" given in clause, (g) of section 3 of the Act does not include a son in law or a daughter in law. By a Deed of Partnership dated August 10, 1976, the First Appellant entered into a partner ship with his son, Ramesh Roy, and his son in law, Swarup Kailash, to carry on business as authorized retail dealer of the Mafatlal, Group of Mills under the firm name and style of Messrs B.N. Rama & Co. (Textiles) According to the Appellants, the said partner ship is Occupying less than one seventh area of the said premises. Thereafter in 1979, the landlords filed a suit for eviction against the First Appellant on the ground that he had sublet the said premises to his son in law. For some reason not apparent on record, the First Appellant 's defence in the suit was struck out. The First Appellant filed a revision application to the Allahabad High Court and further proceedings in that suit were stayed by an interim order. That suit was withdrawn some time before the hearing of these Appeals. On or about March 19, 1981, one Ramesh Nath Kapoor and Radhey Shyam Kapoor, who are related to the landlords. filed an application for allotment of the said premises to them on the ground that there was a deemed vacancy under section 12 (2) of the 390 Act in respect of the said premises. Thereupon the Rent Control and Eviction Officer got the said premises inspected by a Rent Control Inspector who made his report on May 23, 1981, to the effect that as the matter relating to the said premises was pending in the High Court and a stay order had been granted by the High Court, there was no need to take any action. It thereafter appears that in order to clarify the position with respect to the stay order, the Rent Controller issued notices to the parties. The Appellants did not appear on the date fixed for hearing and the Rent Controller by his order dated August 13, 1981, held that there was a deemed vacancy in respect of the said premises and ordered such deemed vacancy to be notified and fixed the hearing of the application for allotment on September 2, 1981. Thereafter a fresh inspection report was made on September 1, 1981, by the Rent Control Inspector to the effect that the requirement of the applicants for allotment of the said premises was genuine. It further appears that an application for release of the said premises was also made by the landlords. On September 2, 1981, the Rent Controller fixed September 11, 1981, for the hearing of the said application for allotment as also of the said application for release. On September 11, the said order directing notification of deemed vacancy and for permission to urge their objections and to contest the said application for release. By an order dated September 30, 1981, the Rent Controller set aside the order notifying the deemed vacancy but refused permission to the Appellants to contest the said application for release of the said premises on the ground that if it were held that there was no vacancy, the question of release would not arise and if it were held that there was a vacancy, the occupant would go out of the picture and thereafter the matter would lie between the District Magistrate and the landlord and that no other person could contest the release of the premises to the landlord according to a judgment of the Allahabad High Court. Thereafter, by his order dated November 11, 1981, the Rent Controller negatived the contentions of the Appellant and held that there was a deemed vacancy in respect of the said premises and ordered such vacancy to be notified. The Appellants thereupon filed the said writ petitions in the High Court which, as mentioned earlier, was dismissed. During the pendency of this Appeal, further proceedings with respect to the release or allotment of the said premises have been stayed by this Court. The subject matter of Civil Appeal No. 8553 of 1983 is also 391 non residential premises consisting of a house bearing Nos. 51 and 52, known as West Mount and West View Estates situate on Survey No. 256 in Santhat Cantonment, Ranikhet, District Almora, Uttar Pradesh. By a registered Indenture of Lease dated November 10, 1964, the said property was leased to the First Appellant in this Appeal, Smt. Kaushal Rekhi, for a period of few years with two options for renewal for a like period. The First Appellant has been conducting a hotel in the said premises known as "West View Hotel". Respondents Nos. 2 to 4 to the said Appeals are the present landlords of the said property. On or about June 1, 1968, the First Appellant entered into a deed of partnership with her son. Thereafter the First Appellant exercised two Options given to her. According to the First Appellant, as her son went to the United States for advanced training in hotel managements the said partnership was dissolved and she took her daughter in law, Smt. Sunita Rekhi, the Second Appellant in this Appeal, as a partner in the said business by a Deed of Partnership dated October 22, 1975. According to the first Appellant, she had intimated the fact of this partnership to the District Magistrate who is the prescribed authority under the Act. On October 4, 1980, the landlords made an application to the prescribed authority for release of the said property in their favour on the ground that there was a deemed vacancy in respect thereof. By his order dated May 6, 1981, the Rent Controller and Eviction Officer held that there was a deemed vacancy in respect of the said premises. According to the Appellants, the Rent Controller had earlier by his order dated January 20, 1981, held that there was no deemed vacancy in respect of the said premises but had thereafter without any jurisdiction suo moto held a fresh inquiry and passed the said order dated May 6, 1981. According to the contesting Respondents, the earlier order was passed on some of the objections raised by the Appellants on the said application for release and the other objections were disposed of by the said order dated May 6, 1981. The Appellants thereafter filed their said writ petition in the High Court which, as aforesaid was dismissed. In their respective writ petitions, the Appellants had raised various contentions. Several of them were contentions of law relating to the interpretation of the definition of the word "family" in clause (g) of Section 2 and of other Sections of the Act. The Appellants in Civil Appeal No. 8552 of 1983 had also contended that sub sections (1) and (2) of Section 12 of the Act were discrimi 392 natory and unconstitutional as infringing Articles 14 and 19 of the Constitution of India. None of these contentions were dealt with by the High Court because, as mentioned earlier, it held that the writ petitions were premature. It was urged on behalf of the Appellants in Civil Appeal No. 8552 of 1983 that in any event the point of constitutionality raised by them ought to have been decided by the High Court because an authority constituted by an Act has no power to determine the constitutionality of that Act or of any provision thereof. This does not appear to be a just criticism of the judgment of the High Court. Apart from stating that the said sub sections were unreasonable, discriminatory and unconstitutional and, therefore, violated Articles 14 and 19 of the Constitution, no, reason was given nor any ground set out in support of the said contention and most probably either the attention of the High Court was not drawn to this ground or it was not urged before the High Court at the hearing of the writ petition. At the hearing of these Appeals, the said Appellants have made an application to amend their writ petition setting out elaborately their grounds and reasons in support of the said contention and have applied for leave to amend their said writ petition in case their Appeal succeeds and their writ petition is sent back to the High Court for reconsideration. They have also prayed for the State of Uttar Pradesh to be added as Respondent No. 5 to the said writ Petition. The Appellants in the other Appeal have also similarly prayed for the amendment of their writ petition in case they succeed in their Appeal. The question whether these applications should be granted or not falls to be considered only if these Appeals are allowed. It will be convenient to see the relevant provisions of the Act before we turn to the Trilok Singh & Co. 's Case. Clause (g) of Section 3 defines "family" as follows: "(g) 'family ', in relation to a landlord or tenant of a building, means, his or her (i) spouse, (ii) male lineal descendants, 393 (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her. and includes, in relation to a landlord, any female having a legal right of residence in that building". What is pertinent to note about this definition is that a son in law and a daughter in law are not expressly included in this definition. Section 11 of the Act prohibits a person from letting any building except in pursuance of an allotment order issued under Section 16. Sub Sections 2 and 4 of Section 12 provide as follows: "(2) In the case of a non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. "(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub section (1), or sub section (2), or sub section (3), sub section (3 A) or sub section (3 B), shall, for the purposes of this Chapter, be deemed to be vacant," Section 13 provides that where a landlord or tenant ceases to occupy a building or part thereof, no person is to occupy it in any capacity on his behalf or otherwise than under an order of allotment or release under Section 16 Section 15 casts a duty on every landlord or tenant to give intimation of vacancy to the District Magistrate. Under Section 16, the District Magistrate may, by an order, require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building, to any person specified in the order (called the allotment order) or may release the whole or any part of such building in favour of the landlord. Under the proviso to Section 16(1), in the case of a vacancy referred to in section 12(A), the District Magistrate is to 394 give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a) of section 16(1), that is before making an allotment order. This proviso was inserted by the 1976 Amendment Act. Strangely enough, in the case of release of the premises to the landlord the proviso does not require any such opportunity to he given to the tenant who would be the person affected by that order. Sub section (2) of section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord Under sub section (4) of section 16, where the allottee or the landlord has not been able to obtain possession of the building allotted or released to him, as the case may be, the District Magistrate, on an application made to him in that behalf, may by order evict or cause to be evicted any person named in that order as well as every other person claiming under him or found in occupation, and may for that purpose use or cause to be used such force as may be necessary and put or cause to be put the allottee or the landlord in possession of the building or part thereof. Sub section (5) of Section 16 provides as follows: "(5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b), as the case may be, of sub section (l), the District Magistrate may review the order: Provided that no application under this clause shall be entertained later than seven days after the eviction of such person. (b) Where the District Magistrate on review under this sub section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and, may for that purpose use or cause to be used such force as ; may be necessary. " Under sub section (7) of Section 16, every order made under that Section, subject to any order made under Section 18, is to be . final, Under Section 18, as substituted by the 1976 Amendment 395 Act, no appeal lies against any order of allotment, reallotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge on any one or more of the following grounds, namely: (a) that the District Magistrate has exercised a jurisdiction not vested in him by law: (b) that the District Magistrate has failed to exercise a jurisdiction vested in him by law; (c) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity. On such application being made, the revising authority may confirm or rescind ` the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks fit. Sub section (3) of section 18 provides that where an order of allotment or reallotment or release is rescinded, the District Magistrate shall, on an application made to him in that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has y been rescinded, and may for that purpose use or cause to be used such force as may be necessary. Prior to the substitution of section 18 by the 1976 Amendment Act, that section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, reallotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. Under section 34(8), for the purpose of any proceedings under the Act and for purposes connected therewith the authorities under the Act are to have such power and follows such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed by rules made under the Act. The Uttar Pradesh Urban Buildings (Regulation of Letting, 396 Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under section 12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The inspection of the building, so far as possible, is to be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of such objection. Any objection received is to be decided after consideration of any evidence, which the objector or any other person concerned may adduce. Rule 10 prescribes the procedure for allotment of a building where an application for allotment is made. The material portion of sub rule (6) and of proviso (a) to that subrule are relevant and may be reproduced. These provisions are as follows: "(6). a person who is deemed to have ceased to occupy a building within the meaning of Section 12(2), shall not be allotted that or any other non residential building for a period of two years from the date of such. deemed cessation: Provided that (a) If the District Magistrate is satisfied in a case referred to in Section 12(2) that the admission of partner or new partner is bona fide transaction and not a mere cover for subletting, he shall, if any application had been made in that behalf before the admission of such partner or new partner, allot the non residential ; building in question afresh to the newly constituted or reconstituted firm; X X X 397 Under Rule 19, where an allotment or release of a building or part thereof is ordered under section 16(1) on the ground inter alia of deemed vacancy within the meaning of section 12, no such order is to be executed until after the expiration of fifteen days from the service upon the occupant of a notice to vacate that building or part thereof, as the case may be. We will now turn to Trilok Singh & Co. 'section case. The facts in that case were that an application for release was made by the landlords in respect of certain residential premises of which the appellant firm claimed to be the tenant. A Senior Inspector was directed to inspect the premises and make a report. According to the report, the premises were in occupation of three persons, two of whom claimed to be the partners of the appellant firm. The report stated, "After hearing the parties it would be proper to take further action". On receipt of the report, the Rent Controller passed an order "Let the vacancy be notified" without granting any hearing to the appellant firm. The appellant firm thereupon filed a writ petition in the High Court of Allahabad challenging the said order on the ground that it was passed in violation of the principles of natural justice. The said writ petition was rejected summarily on the ground that it was premature and the proper remedy for the appellant firm was to approach the Rent Controller under section 16(5) (a) of the Act for review of the said order. In appeal, this Court upheld the order of the Allahabad High Court. This Court held that by reason of section 16(2) no order bf release could be passed under clause (b) of section 16(1) unless the District Magistrate was satisfied that the building was required by the landlord bona fide for occupation by himself or any member of his family or for any of the purposes specified in sub section (2) of section 16. The Court further stated P that under clause (a) of section 16(5), where the landlord or any other person claiming to be a lawful occupant of the building comprised in the order of allotment or release satisfied the District Magistrate that such an order was not made in accordance with clause (a) or clause (b) of section 16(1), the District Magistrate could review his order and if on review he set aside or modified the order of allotment or release, he was empowered to put the applicant, if already evicted back into possession. The Court further observed that section 18 gave a right of appeal against an order of allotment or release and that any person aggrieved by such an order could prefer an appeal to the District Judge and if the order of allotment or release was varied or rescinded by the District Judge in appeal the 398 District Magistrate had under section 18(2) the power to place the parties back in the position which they would have occupied but for such order. The Court further pointed out that the Act did not provide for a hearing at the stage when the District Magistrate passed an order of allotment or release but any person aggrieved by such an order was entitled to ask the District Magistrate to review his order and if in the meanwhile any person in possession of the building had been evicted, the District Magistrate had the power, if he set aside or modified the order of allotment or release, to put the applicant back in possession The Court held (at page 945): "Thus, in the first place, it was unnecessary for respondent ; I to hear the appellants before notifying the vacancy be cause ' under the scheme of the U P. Rent Act, an order notifying the vacancy does no injury and causes no prejudice to the interests of any party. A notification of the vacancy is a step in aid of an order of allotment or release and it is only when such an order of allotment or release is passed that the landlord or the tenant, as the case may be, can have a grievance. Orders of allotment and release are, in the first instance, reviewable by the District Magistrate himself an`d an order passed by the District Magistrate under section 16 is appealable under section 18." The Court then summarized the conclusion it had reached as follows: "The Act thus contemplates successive opportunities " being afforded to persons whose interests are likely to be affected by any order passed by the District Magistrate. Putting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment , or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can file a review application. Thirdly, as against an order passed under section 16, there is a right of appeal under section 18. " We find it difficult to reconcile ourselves to the decision in Trilok Singh & Co. 's Case. The Court 's attention was not drawn 399 in that case to Rule 8 of the said Rules Rule 8 to which we have adverted earlier is the one as substituted by Notification No. 1995/XXlX E 55 (A) 75 dated May 25, 1977. The original rule, however, was to the same effect and under it also the conclusion reached by the Rent Control Inspector contained in his report of the inspection of the building was required to be posted on the notice board of the office of the District Magistrate for the information of the general public, and the order of allotment could not be passed before the expiration of three days from the date of such posting and, if in the meantime any objection was received, not before the disposal of such objection. The District Magistrate was, therefore, not justified in immediately directing the vacancy to be notified and this act on his part was a clear violation of the statutory requirements of Rule 8 and had the result of depriving the appellant firm of an opportunity of hearing which Rule 8 conferred upon it. On this ground alone the appellant firm should have succeeded. The observation of this Court in Trilok Singh & Co 's case that it was unnecessary for the District Magistrate to hear the Appellants before notifying the vacancy does not, therefore, appear to be correct. It equally does not appear to be correct to hold that an order notifying the vacancy did no injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to and if any objections were filed, they would have to be decided after considering the evidence that the objector or any other person concerned might adduce and that after an order of allotment or release was passed following upon the notification of vacancy, the aggrieved person could file a review application or an appeal under section 18. In so holding the Court appears to have overlooked that the stage for objecting to a vacancy being notified was not after it was notified but, as provided by Rule 8, before it was notified and that under the said Rule 8 the notification of vacancy could only be after the objections were heard and disposed of. This Court itself pointed out in that case that the Act did not provide for a hearing at the stage when the District Magistrate passed an order of allotment or release. In such an event, it can hardly be said that a review or an appeal against an order of allotment or release was an adequate remedy. As the very provisions for review and appeal show, if the order appealed against or sought to be reviewed is varied or rescinded, the appellant or the person seeking review, if evicted is the meanwhile, is to be restored back in possession. How the fact of being evicted or even the danger of 400 it can cause no prejudice, particularly in these days of acute shortage of accommodation, is something we are not able to appreciate. It is also difficult to understand how a party who has no right to appear at the original hearing of an application could be said to have a right of review or an appeal against an order passed on that application. From the very nature of things, a right to defend an application in the first instance is a very different matter from a right to seek a review of the order on that application or a right of appeal against that order. In its very nature and scope, an original hearing differs substantially from a review or an appeal. A party applying for review or an appellant cannot as of right lead evidence. Further, it is he who comes before the authority challenging an order passed to his prejudice and is not in the same position as the party against whom an order is sought in the first instance. The correctness of Trilok Singh & Co. 's case is, therefore, open to doubt. Apart from this, the position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by section 18 has been substituted by a right of revision on the grounds set out in the substituted section 18 and which are the same as those on which a revision lies to the High Court under section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under section 18 is, therefore, much narrower than in the case of an appeal. Under the proviso to section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub section (4) which includes a deemed vacancy under section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an 401 order of release made under clause (b) of section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. In fact, as would appear from the order dated September 30, 1981, of the Rent Control and Eviction Officer in Civil Appeal No. 8552 of 1983, the Allahabad High Court has held that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. The tenant has thus no adequate or effective remedy against an order notifying a vacancy. Further, it should be borne in mind that under Rule 10 (6) a tenant who is deemed to have ceased to occupy a building under section 12(2) is not entitled for a period of two years from the date of such deemed vacancy to the allotment of the same or any other non residential building. In our opinion, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under Article 226 or 227 of the Constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be premature. In the view that we take, those Appeals will have to be allowed and the writ petitions of the Appellants will have to be heard by the High Court on merits. As mentioned earlier, the Appellants have applied for amendment of their respective writ petitions. Without expressing any opinion on the merits of the contentions sought to be raised in the proposed amendments, we feel that the amendments sought to be made are of such a nature that they require to be considered and dealt with by the High Court. 402 In the result, we allow both these Appeals and reverse the judgment and set aside the order passed by the High Court. We further direct the High Court to rehear on merits the writ petitions filed by the Appellants. We also allow the application for amendment of both these writ petitions. The Appellants will amend their respective writ petitions in terms of the applications for amendment made by them within one month of the receipt by the High Court of the order of this Court. The High Court will thereupon issue notice in each of these two writ petitions to the newly added State of Uttar Pradesh. The State of Uttar Pradesh will be at liberty to file a counter affidavit within four weeks of the receipt of such notice. The original respondents to the writ petitions will also be at liberty to file a supplementary counter affidavit within four weeks from the date of receipt by them of the notice that the writ petitions have been amended. The High Court will thereafter endeavour to dispose of these writ petitions as expeditiously as possible. Pending disposal of the writ petitions by the High Court, there will be a stay of further proceedings for allotment or release of the concerned premises and the Appellants will not be dispossessed from the premises they are occupying. In the circumstances of the case, there will be no order as to the cost of these Appeals. M.L.A. Appeals allowed.

That Constitutional validity of the Karnataka Tax on Entry of Goods into Local Areas for consumption , use or sale therein Act , 1979 , which came into force with effect from 1 6.1979 was challenged in the Karnataka High Court by a large number of traders though a batch of 1590 writ petitions including writ petition No. 7039/79 by M/s. Hansa corporation Bangalore. A Division Bench of the Court, by a common judgment dated 24.8.79 reported in ILR 1980 (1) Karnataka 165 allowed all the writ petitions and issued writs of mandamus against the State Government forbearing it from taking any proceedings under the Act. The State took the matter in appeal in this Court. However , only one appeal was filed , numbered as 3049 of 1979 against writ petition No. 170 39 of 1979 filed by M/s Hansa Corporation , impleading this Corporation alone as respondent. This Court by its judgment dated 25.9.80 which is reported in ; , allowed the appeal , set aside the judgment of the Karnataka High Court and upheld the validity of the Act. During the pendency of the civil appeal No 3049 of 1979 Governor of Karnataka enacted the Karnataka Tax on Entry of Goods into a Local Area 660 for Consumption , use or sale therein (Act with retrospective effect from 8.6.80 removing the infirmities in the 1979 Act. After the judgment of the Supreme Court in the Hansa Corporation 's case the Governor of Karnataka promulgated another ordinance , Ordinance No. 11 of 1980 on 25.10.1980 repealing the Entry Tax Act , 1980 from its inception with certain other directions regarding adjustment of tax if any paid. This was followed by Karnataka Tax on Entry of Goods into Local Areas , Use or Sale therein Act , of 1981 , and Karnataka Act No. 10 of 1981 , repealing the 1980 Act. however , did not repeal ordinance No. 11 of 1980. In the meantime , Karnataka Ordinance No. 3 of 1981 came into force which was followed by Karnataka Act 12 of 1981 I which repealed Ordnance No. II of 1980. As a result of the combined operation of ordinance No. 3 of 1981 and Act No 12 of 1981 , the 1979 Act was made to be Operative but only from 1.10.80 and not from 1.6.79 as originally enacted After the judgment of the Hansa Corporation 's case upholding the validity of the 1979 Act , the authorities appointed under the Act , issued notices under the Act to all the dealers including those who had filed writ petition earlier , calling upon them to register themselves under the Act , to file returns and to pay the amounts of tax due by them under the original Act of 1979. Aggrieved by the said notices , the original writ petitioners again filed writ petitions before the High Court of Karnataka contending that the notices issued to them were bad in as much as the writ of mandamus issued in their favour by the High Court in the earlier judgment survived and was effective since no state appeals were performed against them and that the judgment of the Supreme Court could rescue the State from taking proceedings only against the Hansa Corporation and not against them. The Statement this contention with the plea that the judgment of the Supreme Court was binding on all and no one could escape from it. The writ petitions were dismissed by a single judge holding among other things , that section 3 of the Act No 10 of 1981 revived the 1979 Act and that action taken against the petitioners in the writ petitions was , therefore , valid. Appeals were filed against the judgment and a Division Bench of the Karnataka High Court dismissed the appellants holding that section 3 of the re pealing Act of 1981 re enacted the 1979 Act and that , therefore , the appeals were not well founded i 1 their challenge against the action taken by the State. Hence the appeals by special leave and also writ petitions under Article 32 of the Constitution. Dismissing the appeals and the writ petition , the Court ^ HELD: 1.1 The judgment of the Supreme Court in Hansa Corporations ' case reported in ; is binding on all concerned whether they were parties to the judgment or not To contend that the conclusion therein applies only to the partly before the Supreme Court is to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory. By setting aside the common judgment of the High Court , the mandamus issued by the High Court is rendered ineffective not only in one case but in all cases.[675; 673 H] 1.2 In the instant case , though a large number of writ petitions were filed challenging the Act , all those writ petitions were grouped together , heard 661 together and were disposed of by the High Court by a common judgment. No petitioner advanced any contention peculiar or individual to his petition , not common to others. To be precise , the dispute in the cause or controversy between the State and each petitioner had no personal or individual element in it or anything personal or peculiar to each petitioner. The challenge to the Constitutional validity of 1979 Act proceeded on identical grounds common to all petitioners. This challenge was accepted by the High Court by a common judgment that was the subject matter of appeal before Supreme Court in Hansa Corporations ' case. When the Supreme Court repealed the challenge and held the Act constitutionally valid it in terms disposed of not the appeal in Hansa Corporation 's case alone , but all petitioners in which the High Court issued mandamus on the non existent ground that the 1979 Act was constitutionally invalid. Therefore , to contend that the law laid down by Supreme Court in that judgment would bind only the Hansa Corporation and not the other petitioners against whom the State of Karnataka had not filed any appeal , is to ignore the binding nature of a judgment of Supreme Court under Article 141 of the Constitution. [673B C) 1.3 A mere reading of Article 141 bring into sharp focus its expanse and its all pervasive nature. In cases like this , where numerous petitions are disposed of by a common judgment and only one appeal is filed , the parties to the common judgment could very well have and should have intervened and could have requested the court to hear them also. They cannot be heard to say that the decision was taken by the Supreme Court behind their back or profess ignorance of the fact that an appeal had been filed by the State against the common judgment.[673B C] 2. There is no inconsistency in the finding of the Supreme Court in Joginder 's case and Makhanlal Waza 's case the ratio Is the same and the appellants cannot take advantage of certain decisions made by this Court in the earlier case. Both the decisions in Joginder 's and Makhanlal Waza 's case lay down identical principles and there is nothing to distinguish between the two. in the earlier case, the Supreme Court , on its facts , overruled the preliminary objection that absence of appeals against the three petitioners let out. would not render the appeal before the Supreme Court incompetent , holding thereby that the effect of decision in that appeal would be binding on the appellant therein. In the latter case , the Supreme Court in unmistakable terms laid down that the law laid down in the earlier case , namely , Triloknath 's case, applied even to those who were not parties to the case. These two decisions were given by two Constitution Benches of the Supreme Court , the fact that Joginder Singh 's case was not noted by the Bench that decided Makhanlal Waza 's case does not create any difficulty. The two decisions , on the principles laid down by them , speak the same voice, that is the law laid down by the Supreme Court is binding on all , notwithstanding the fact that it is against the State or a private party and that it is binding on even those who were not parties before the court , State of Punjab vs Joginder Singh. ; Makhanlal Waza vs J & K. State. ; discussed and followed. 662 OBSERVATION: In the fitness of things , it would be desirable that the State Government also took out publication in such cases to alert parties bound by the judgment , of the fact that an appeal had been preferred before Supreme Court by them. Here the State Government cannot be find fault with for having filed only one appeal. It is , of course , an economising procedure. [673C D] 3.1 A writ or an order in the nature of mandamus has always been understood to mean a command issuing from the Court , competent to do the same , to a Public servant amongst others , to perform which leads to the initiation of action. 3.2 In this case , the petitioners appellants assert that the mandamus in their case was issued by the High Court commanding the authority to desist or forbear from enforcing the provisions of an Act which was not validity enacted. In other words , a writ of mandamus was predicated upon the view that the High Court took that the 1979 Act was constitutionally invalid. Consequently the Court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the petitioners; The Act was subsequently declared constitutionally valid by the Supreme Court. The Act , therefore , was under an eclipse , for a short duration; but with the declaration of the law by the Supreme Court , the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full the constitutional invalidity held by the High Court having been removed by the judgment of the Supreme Court. If the law so declared invalid is held constitutionally valid , effective and binding by the Supreme Court , the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The declaration of the law is binding on everyone. And therefore , the mandamus would not survive in favour of those parties against whom appeals were not filed. [774B E] 3.3 Further , assuming that the mandamus in favour of the appellants survived not withstanding the judgment of this Court , the normal procedure to enforce the mandamus is to move the court in contempt when the parties against whom mandamus is issued disrespect it and if contempt petitions are filed and notices are issued to the State, the States ' obvious answer will be a reference to Article 141 and taking protection thereunder. No Court can punish a party for contempt under these circumstances , because the mandamus issued by the High Court becomes ineffective and unenforceable when the basis on which it has issued falls, by the declaration by the Supreme Court of the validity of 1979 Act. [674E; G H]

tion (Civil) No. 1695 of 1987 Etc. (Under Article , ' 23 of the Consitution of India). Govind Mukhotey, J.D. Jain and B.B. Sinha for the Petition ers. Dr. Y.S. Chitale, Mahabir Singh, K.B. Rohtagi and Sha shank Shekhar for the Respondents. The Judgment of the Court was delivered by OJHA, J. The petitioners in these writ petitions are licenced dealers having factories and manufacturing units at Panipat in the State of Haryana and consume sheep hair for manufacturing woollen fabrics and blankets. In order to carry on their trade they purchase sheep hair to get yarn manufactured out of it for being used in its turn for manu facturing woollen fabrics and blankets. The only question urged in these writ petitions is as to whether sheep hair was an agricultural produce within the meaning of the said 295 term as defined under Section 2(a) of the Punjab Agricultur al Produce Markets Act, 1961 (hereinafter referred to as the Act) so as to attract the provisions of the said Act to it. The term "agricultural produce" according to its definition contained under Section 2(a) of the Act means all produce, whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to the Act. On its plain meaning, therefore, only such produce as is specified in the Schedule to the Act shall fall within the term "agricultural produce". Section 38 of the Act confers power on the State Government, by notification, to add to the Schedule any other item of agricultural produce or amend or omit any item of such produce specified therein. The relevant items in the Schedule on which reliance has been placed by learned counsel for the petitioners in sup port of the contention that sheep hair was not an agricul tural produce are items 41. Wool (Oon), 75. Goat hair and 76. Camel hair. It has been urged by learned counsel for the petitioners that even though Goat hair and Camel hair have been included in the Schedule, Sheep hair had not been so included and consequently sheep hair was not an agricultural produce within the meaning of the Act and the insistence of the authorities that the petitioners should obtain a licence and pay market fee with regard to their transaction in respect of sheephair was unjustified. With regard to item No. 4 l namely Wool (Oon), it was urged firstly that wool is the manufactured item of sheep hair and not sheep hair itself and secondly the word 'wool ' according to its dictionary meaning is the soft undercoat of various animals including sheep. Reference in this behalf has been made to the Dic tionary of Scientific and Technical Terms M.C. Graw Hill. According to it wool is a textile fibre made from raw wool characterised by absorbency, resiliency and insulation. It further states that wool is the soft undercoat of various animals such as sheep, angora, goat, camel, alpaca, llamma and vicuna. Having heard learned counsel for the parties, we are not inclined to agree with the submission made by learned coun sel for the petitioners. Before dealing with the matter further it would be useful to notice at this place that item No. 41 of the Schedule after the word 'wool ' uses the word '0on ' also within brackets which indicates as to what was really intended by the use of the word 'Wool '. Indeed, in the Hindi version of the Act, item No. 41 of the Schedule uses the word '0on ' only and does not at all use the word 'wool '. Now to the submissions made by learned counsel for the petitioners, the first submission made by him that the word 'wool ' contemplated manufactured item of 296 sheep hair and not sheep hair itself, it believed even by the dictionary meaning of the said word relied on by him. Firstly, the raw material out of which a textile fibre is made is also described as raw wool. Secondly, not only the textile fibre but also the soft undercoat of various animals including sheep has itself been described as wool. It is, therefore, apparent that not only the textile fibre made out of raw wool but even the soft undercoat of the various animals including sheep, according to the dictionary afore said, would be wool. Encyclopaedia Britannica, under the heading wool in vol. 23, states: "Animal fibres are usually spoken of as hair, with the exception of the coat of the sheep which is usually termed wool". A perusal of what has been stated under the heading wool therein would indicate that wool has almost invariably been used in the context of sheep hair. In Indian Aluminium Cables Ltd. vs Union of India, [1985] 3 SCC page 284 after referring to several earlier decisions of this Court it was held that in determining the meaning or connotation of words and expressions describing an article in a tariff schedule those words and expressions should be construed in the sense in which they are under stood in the trade by the dealer and the customer when goods are marketable. The same rule of interpretation was reiter ated in Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., [1989] 1 SCC page 150. It was held: "It is well settled, as mentioned before, that where no definition is provided in the statute itself, as in this case for ascertaining the correct meaning of a fiscal entry reference to a dictionary is not always safe. The correct guide, it appears in such a case, is the context and the trade meaning XXXXX The trade meaning is one which is prevalent in that particular trade where the goods is known or traded. If special type of goods is subject matter of a fiscal entry then that entry must be understood in the context of that particu lar trade, bearing in mind that particular word xxxxx It is a well settled principle of construc tion, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common par lance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clear ly expressed by the legislature. This princi 297 ple is well settled by a long line of deci sions of Canadian, American, Australian and Indian cases. Pollock, J. pointed out in Grenfell vs I.R.C., 248 that if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed accord ing to the strict or technical meaning of the language contained in it, but is to be con strud in its popular sense, meaning of course, by the words "popular sense" that which people conversant with the subject matter with which the statute is dealing would attribute to it. The ordinary words in every day use are, therefore, to be construed according to their popular sense. The same view was reiterated by Story, J. in 200 Chests of Tea (1824) 9 Whea ton US 435,438 where he observed that the legislature does not suppose our merchants to be naturalists, or geologists, or botanists. " In our opinion, the aforesaid rule of interpretation would apply even to the interpretation of the items of the Schedule to the Act keeping in view the nature and purpose of the enactment. Interpreting item No. 41 Wool(Oon) of the Schedule in this light there seems to be no mannner of doubt that the word 'wool ' has been used therein only in the sense in which the word '0on ' is understood in the trade by the dealer and the consumer in the popular sense namely that which people conversant with the word '0on ' would attribute to it. If anyone goes to the market to purchase wool (0on) he would be offered only sheep hair and not goat hair or camel hair or for the matter of that the hair of any other animal. Indeed, there is intrinsic evidence in the Schedule itself of the fact that in the English version the word 'Wool (0on) ' and in the Hindi version '0on ' only at item No. 41 has been used in the same popular sense namely that of sheep hair. This intention is apparent from the circum stances that care has been taken to specifically include goat hair and camel hair at items 75 and 76 of the Schedule. Had Wool (0on) been used at item No. 41 in the comprehensive sense as canvassed by the learned counsel for the petition ers it would have automatically included Goat hair and Camel hair also and the specific inclusion of Goat hair and Camel hair at items 75 and 76 would have been wholly unnec essary. Consequently, their specific inclusion at items 75 and 76 is a clear indication of the awareness of the fact that the trade meaning of the word 'Wool (0on) ' which is prevalent in the popular sense would be sheep hair alone and as such unless goat hair and camel hair are included as specific items in the Schedule they will not be treated as agricultural produce. The word 298 'Woo1 (0on) ' has obviously been used at item No. 41 of the Schedule in the aforesaid popular sense and not in the sense used in scientific and technical terminology which the traders and the consumers are not normally supposed to know. In view of the foregoing discussion, we are clearly of the opinion that sheep hair falls under the item No. 41 of the Schedule namely "Wool (0on)" as contained in the English version and "0on" only as contained in the Hindi version of the Act. Sheep hair is consequently an agricultural produce within the meaning of the Act so that the various provisions therein with regard to agricultural produce are applicable to sheep hair also. In the result, we find no merit in these writ petitions. They are accordingly dismissed but in the circumstances of the case there shall be no order as to costs. G.N. Petitions dis missed.

For selling an immovable property, respondent entered into an agreement with the appellant. Appellant paid part of the consideration and he was put in possession of the property. Since the respondent failed to execute the regis tered sale deed, the appellant filed a suit. There was no specific averment in the suit that the appellant was and had always been ready and willing to perform his part of the agreement. Respondent contended inter alia that the suit was not maintainable for non compliance with the provisions of Section 16(c) of the . This issue was directed to be tried as a preliminary issue. At that stage, the appellant applied for leave to amend the plaint by incorporating an averment that he was always and had been ready and willing to perform his part of the agreement. The trial court rejected the application. The revision petition filed in the High Court was dis missed. The High Court took the view that the application for amendment was filed beyond the period of limitation and cannot be granted, as a vested interest of the respondent would be disturbed. This appeal is against the judgment of the High Court. Allowing the appeal, this Court, HELD: 1.1 Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that. where a plaintiff seeks to amend by setting up a fresh 475 claim in respect of a cause of action which, since the institution of the suit, had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. Courts would as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limita tion on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether application for amendment should be granted and does not affect the power of the Court to order it, if that is required in the interest of justice. [477A D] 1.2 In the present case, no fresh cause of action was sought to be introduced by the amendment applied for. All that the appellant sought to do was to complete the cause of action for specific performance and add an averment which required to be added in view of the provisions of sub sec tion (c) of Section 16 of the . There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing any injustice to the respondent on that account arose. [477E F] Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil and Ors., ; and L.J. Leach & Co. and Anr. vs Messrs Jardine Skinner & Co., ; , relied on. Ouseph Varghese vs Joseph Aley & Ors., , distinguished.

Appeals Nos. 358 and 359 of 1957. Appeals by special leave from the judgment and decree dated April 4, 1956, of the Patna High Court in M. J. C. Nos. 546 and 590 of 1955. J. N. Banerjee and R. C. Prasad, for the appellant (In both appeals). Basanta Chandra Ghose I and P. K. Chatterjee, for respondents Nos. 1 10 & 12 57 in C. A. No. 358/57. M. C. Setalvad, Attorney General of India, Nooni Chakraverty and B. P. Maheshwari, for respondent No. 59 in C A. No. 358/57 and Respdt. No. 1 in C. A. No. 359/57. R.Patnaik, for respondent No. 63 in C.A. No. 359/57. August 22. The Judgment of the Court was delivered by 1193 GAJENDRAGADKAR J. Where an industrial dispute has been referred to a tribunal for adjudication by the appropriate government under section 10 (1) (d) of the , (XIV of 1947), can the said government supersede the said reference pending adjudication before the tribunal constituted for that purpose ? That is the short question which falls to be considered in these two appeals by special leave. The question arises in this way: On October 8, 1954, by Notification No. III/DI 1602 /54 L 15225, the government of Bihar referred an industrial dispute between the management of the Bata Shoe Co. Ltd., Digbaghat (Patna), and their 31 workmen, mentioned in annexure I A ', in exercise of the powers conferred on the said government by section 7 read with section 10(1) of the Act. The dispute was whether the dismissal of the workmen in question was justified; if not, whether they were entitled to reinstatement or any other relief For the adjudication of this dispute, an industrial tribunal with Mr. Ali Hassan as the sole member was consti tuted. This was reference No. 10 of 1954. Then, on January 15,1955, by Notification No. III/DI 1601/55 L. 696, a similar industrial dispute between the same Bata Company and its 29 other workmen was referred by the government of Bihar to the same tribunal. This was reference No. I of 1955. While the proceedings in respect of the two references, which had been consolidated by the tribunal, were pending before it and had made some progress, the government of Bihar issued a third Notification No. III/Di 1601/55 L 13028 on September 17, 1955, by which it purported to supersede the two earlier notifications, to combine the said two disputes into one dispute, to implead the two sets of workmen involved in the two said disputes together, to, add the Bata Mazdoor 'Union to the dispute, and to refer it to the adjudication of the industrial tribunal of Mr. Ali Hassan as the sole member. The dispute thus referred to the . tribunal was, " Whether the dismissal of the 60 workmen, mentioned in annexure 'B ', was justified or unjustified; and to what relief, if any, those workmen are entitled ?" On receipt of this notification, the tribunal passed an 1194 order on September 19, 1955, cancelling the hearing of the two prior references which had been fixed for October 3, 1955, and directing that the files of the said references should be closed. The Bata Company and its workmen then filed two separate applications before the High Court of Judicature at Patna under articles 226 and 227 of the Constitution and prayed that the last notification should be quashed as being illegal and ultra 'vires. These. two applications were numbered as M. J. C. Nos. 546 and 590 of 1955 respectively. On April 4, 1956, the High Court held that the government of Bihar had no power or authority to supersede the earlier notifications, allowed both the applications and issued a writ in the nature of certiorai quashing the impugned notification of September 17, 1955, and also a writ in the nature of mandamus requiring the industrial tribunal to proceed expeditiously with reference cases Nos. 10 of 1954 and I of 1955 and to bring them to a conclusion in accordance with law. Against this order the government of Bihar applied for and obtained leave from this court on June 26, 1956. That is how the two present appeals have come for disposal before US. In both the appeals, the appellant is the State of Bihar and. the respondents are the Bata Company and its workmen respectively. On behalf of the appellant, it is urged before us that the High Court at patna was in error in holding that the government of Bihar had no power or authority to set aside the two earlier notifications and to refer the dispute in question for adjudication to the industrial tribunal under section 10(1) of the Act. In order to appreciate the background of the, impugned notification, it would be relevant, to mention some material facts. It appears that the workmen of the company 's factory at Digha formed a, union at the close of the last World War. The president of the said union was Mr. John and its general secretary was Mr. Fateh Narain Singh. On June 22, 1947, the company entered into a collective agreement with the said union and by mutual consent the Standing Orders and 1195 Rules, certified under the Industrial Employment (Standing Orders) Act of 1946, were settled. The union was recognised as the sole and exclusive collective bargaining agency for the workmen of the company. Towards the end of 1954, two groups of the union were formed and rivalry grew between them. One group was led by Mr. Fateh Narain Singh and other by Mr. Bari. On January 22, 1954, the union ' through its general secretary Mr. Fateh Narain Singh served on the company a " slow down notice " with effect from February 24, 1954, and on February 6, 1954, Mr. Bari purporting to act as the president of the union asked his followers to go on strike as from February 23, 1954. The demands made by Mr. Fateh Narain Singh gave rise to conciliation proceedings under the Act and ended in the settlement which was duly recorded on February 8, 1954. In spite of the said settlement some workmen, including the sixty workmen in question who supported Mr. Bari, went on an illegal strike on February 23, 1954, although as members of the union they were bound by the ,settlement. The majority of the workmen were opposed to the strike and in fact on February 16, 1954, a letter signed by 500 workmen who dis associated themselves from the strike, was received by the company. The company was requested to make suitable arrangements to enable these workmen to attend their duties. The strike succeeded only partially because out of 854 workmen employed in the company 's factory at Digha nearly 500 workmen attended the factory in spite of the threats of the strikers. The strike was declared illegal by the appellant under section 23 (c) of the Act. Subsequently, the company served the strikers with charge sheets and in the end, 274 workmen, including the sixty workmen in question, were dismissed from service by the company. Thereafter the union entered into negotiations with the company, as a result of which it was agreed that 110 strikers would be employed by the company in the same manner in which 76 strikers had already been employed by it. It was further 152 1196 agreed that 30 strikers were to remain dismissed and not considered eligible for employment or for any benefits. In regard to the remaining 30 strikers, the company agreed to consider their cases later on for reemployment. During these negotiations, the sixty workmen in question did not make any demand to the management for reinstatement either individually or collectively. nor was their case raised by any other Organisation or body of workmen. In the result, so far as the union was concerned the dispute regarding the whole body of strikers who had been dismissed by the company came to an end by virtue of, the agreement between the company and the union. Notwithstanding this agreement, Mr. Sinha, the conciliation officer, wrote to the company on September 3, 1954, that he desired to hold conciliation proceedings inrespectof,some of the dismissed workmen. The dispute raised by the sixty workmen was not sponsored by any Organisation or body of workmen. In fact the secretary of the union wrote to the Commissioner of Labour on September 22, 1954, that he strongly objected to the alleged dispute of sixty workmen being referred to adjudication. It was under these circum stances that the appellant issued the first two notifica tions on October 8, 1954 and January 15, 1955. On May 30, 1955, the union made an application before the tribunal alleging that the ' majority of the workmen were opposed to the reinstatement of the sixty workmen in question and consequently it had interest in the proceedings before the tribunal. Two applications were made before the tribunal by other workmen to be joined to the proceedings on the ground that they were opposed to the reinstatement of the workmen whose cases were pending before the tribunal. All these applications were rejected by the tribunal. It would appear that Mr. Fateh Narain Singh then moved the Department of Labour Government of Bihar, and it was apparently pursuant to the representation made by him that the third notification was issued by the appellant superseding the first two notifications and referring the whole dispute afresh to the 1197 industrial tribunal with the union of Mr. Fateh Narain Singh added as a party to the proceedings. That in brief is the genesis of the impugned notification in the present case. Dr Bannerjee for the appellant has urged before us that in dealing with the question about the powers of the appropriate government under section 10(1) of the Act, it would be necessary to bear in mind the facts which led to the cancellation of the first two notifications and the issue of the third impugned notification. He contends that in issuing the third notification the appellant has acted bona fide and solely in the interests of fair play and justice ; it came to the. conclusion that it was necessary that the union should be heard before the disputes in question are. adjudicated upon by the Industrial Tribunal and that it would be more convenient and in the interest of industrial peace and harmony that the dispute should be referred to .the tribunal 'in a more comprehensive and consolidated form bringing before the tribunal all the parties interested in it. In our opinion, the bona fides of the appellant on which reliance is placed by Dr. Banerjee are really not: relevant for determining the appellant 's 'powers under section 10(1) of the Act. If the appellant has authority to cancel the notification issued under section 10(1), and if the validity of the cancelling notification is challenged on the ground of mala fides, it may be relevant and material to inquire into the motives of the appellant. But if the appellant has no authority to cancel or revoke a notification issued under section 10(1), the bona fides of the appellant can hardly validate the impugned cancellation. That is why, we think, the appellant cannot base its arguments on the alleged bona fides of its conduct. it is conceded by Dr. Bannerjee that the Act does not expressly confer any power on the appropriate government to cancel or supersede a reference made under section 10(1) of the Act. He, however, argues that the power to cancel or supersede such a reference must be hold to be implied, and in support of his argument he relies on the, provisions of section 21 of the (X of 1897). Section 21 provides 1198 that " where, by any Central Act or Regulation, a. power to issue notifications, orders, rules or bye laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or byelaws so issued ". It is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject matter, context, and the effect, of the relevant provision,% of the said statute. In other words it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by section 21, the appellant 's contention is justified that the power to cancel the reference made under section 10(1) can be said to vest in the appropriate government by necessary implication. If we come to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, the appellant would not be entitled to invoke the assistance of the said section. We must, therefore, proceed to examine the relevant provisions of the Act itself. It is clear that the policy of the Act is to secure and preserve good relations between the employers and their workmen and to maintain industrial peace and harmony. It is with this object that section 3 of the Act contemplates the establishment of the Works Committees whose duty it is to promote measures for securing and preserving amity and good relations between the employers and the workmen. If the Works Committee is unable to settle the disputes &rising between the employer and his workmen, conciliation officers and the boards of conciliation offer assistance to the parties to settle their disputes. Sections 3, 4, 5, 12 and 13 refer to the working of this machinery contemplated by the Act. It is only where the conciliation machinery fails to bring about settlement between the parties that the Act contemplates compulsory adjudication of the industrial disputes by labour courts and 1199 tribunals as the last alternative. The appropriate government is authorised to constitute labour courts and tribunals under and subject to the provisions of a. 7 and section 7A respectively. It is in respect of the compulsory adjudication that under section 10, the appropriate government is given wide discretion to decide whether or not the dispute between the employer and his employees should fie referred to the board, court or ' tribunal. Section 10 (1) (d) provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a tribunal for adjudication. The condition precedent for the reference to the industrial tribunal is that the appropriate government must be satisfied that an industrial dispute exists or is apprehended. It is not in every case where the parties allege the existence of an industrial dispute that a reference would be made under section 10 (1); it is only where the test of subjective satisfaction of the appropriate government is satisfied that the reference can be made. Thus it is clear that the appropriate government is given an important voice in the matter of permitting industrial disputes to seek adjudication by reference to the industrial tribunal. But once an order in writing is made by the appropriate government referring an industrial dispute to the tribunal for adjudication under section 10 (1), proceedings before the tribunal are deemed to have commenced and they are deemed to have concluded on the day on which the award made by the tribunal becomes enforceable under section 17A. This is the effect of section 20(3) of the Act. This provision shows that after the dispute is referred to the tribunal, during the continuance of the reference proceedings, it is the tribunal which is seized of the dispute and which can exercise jurisdiction in respect of it. The appropriate government can act in respect of a reference pending adjudication before a tribunal only under section 140(5) of the Act, which authorises it to add other parties to the pending dispute subject to the conditions mentioned in the said provision. It would therefore be reasonable to hold that except for cases 1200 falling under section 10(5) the appropriate government stands outside the reference proceedings, which are under the control and jurisdiction of the tribunal itself. Even after the award is made it is obligatory on I the appropriate government under section 17(1) to publish the said award within a period of thirty, days from the date of its receipt by the, appropriate government. 'Sub section (2) of section 17 says that subject to the provisions of section 17A, the award published under (1) of section 17 shall be final and shall not be called in question by any court in any manner whatsoever Section 19(3) provides that an award shall, subject to the other pro visions of section 19, remain in operation for a period of one year from the date on which it becomes emforceable under section 17A. It is true that as. 17A and 19 confer on the appropriate government powers to modify the provisions of the award or limit the period of its: operation but it is unnecessary to refer to these provisions in detail. The scheme of the provisions. in Chapters III and IV of the Act would thus appear to be . to leave the reference proceedings exclusively within the jurisdiction of the tribunals constituted under the :Act and to make the awards,of such tribunals binding between the parties, subject to the special powers conferred of the appropriate government under as. 17A and 19. The appropriate government undoubtedly has the initiative in the matter. It is only where it makes an order in writing refering an industrial dispute to the adjudication of the tribunal that the reference proceedings can commence but the scheme of the relevant provisions would prima facie seem to be inconsistent with any power in the appropriate government to cancel the reference made under section 10 (1). The power claimed by the Happening to cancel a reference made unders. 10(1) seems also to be inconsistent with some other provisions of the Act. The proviso to section 10 lays down that the appropriated government shall refer a dispute relating to the public utility service when a notice under section 22 has been given, unless it considers that the notice has been frivolously or vexatiously given, or that it would be inexpedient so to refer the dispute. This proviso, indicates that in regard 1201 to a dispute relating to public utility concerns normally the government is expected to refer it for adjudication. In such a case if ' the government makes the reference it is difficult to appreciate that it would be open to the government pending the proceedings of the said reference before the Industrial Tribunal to cancel the reference and supersede its original order in that behalf. Section 10, sub section (2) deals with the case where ' the parties to are industrial dispute apply to the appropriate government in the prescribed manner, either jointly or separately, for a reference of the dispute to the appropriate authority, and it provides that in such a case if the appropriate government is satisfied that the persons applying represent the majority of each party it shall make the reference accordingly. ln such a case all that the government has to satisfy itself about is the fact that the, demand for reference is made by the majority of each party, and once this condition is satisfied, the government is under obligation to refer the dispute for industrial adjudication. It is inconceivable that in such a case the government can claim power to cancel a reference made under section 10(2). Indeed in the course of his arguments, Dr. Banerjee fairly conceded that it would be difficult to sustain a claim for an implied power of cancellation in respect of a reference made under section 10(2). There is another consideration which is relevant in dealing with this question. Section 12 which deals with the duties of the conciliation officer, provides in substance that the conciliation officer should try his best to bring about settlement between the parties. If no settlement is arrived at, the conciliation officer has to make a report to the appropriate government, as provided in sub section (4) of section 12. This report must contain a full statement of the relevant facts and circumstances and the reasons on account of which in the opinion of the officer the settlement could not be arrived at. Sub section (5) then lays down that if, on a consideration of the report, the appropriate government is satisfied that there is a case for reference to a board, labour court, tribunal or national tribunal, it may make such a reference. Where the appropriate 1202 government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. This provision imposes on the appropriate government an obligation to record its reasons for not making a reference after receiving a report from the conciliation officer and to communicate the said reasons to the parties concerned. It would show that when the efforts of the conciliation officer fail to settle a dispute, on receipt of the conciliation officer 's report by the appropriate government, the government would normally refer the dispute for adjudication ; but if the government is not satisfied that a reference should be made, it is required to communicate its reasons for its decision to the parties concerned. If the appellant 's argument is accepted, it would mean that even after the order is made by the appropriate government under section 10(1), the said government can cancel the said order without giving any reasons. This position is clearly inconsistent with the policy underlying the provisions of section 12(5) of the Act. In our opinion, if the legislature had intended to confer on the appropriate government the power to cancel an order made under section 10(1), the legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations on the exercise of the said power. It is, however, urged that if a dispute referred to the industrial tribunal under section 10(1) is settled between the parties, the only remedy for giving effect to such a compromise would be to cancel the reference and to take the proceedings out of the jurisdiction of the industrial tribunal. This argument is based on the ,assumption that the industrial tribunal would have to ignore tile settlement by the parties of their dispute pending before it and would have to make an award on the merits in spite of the said settlement. We are not satisfied that this argument is well founded. It is true that the Act does not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of O. XXIII, r. 3 of the Code of Civil Procedure. But it would be very 1203 unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties. We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary object of this Act. Settlements reached before the conciliation officers or( boards are specifically dealt with by sections 12(2) and 13(3) and the same are made binding under section 18. There can, therefore, be no doubt that if an industrial dispute before a tribunal is amicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties. It was stated before us at the bar that innumerable awards had been made by industrial tribunals in terms of the settlements between the parties. In this connexion we may incidentally refer to the provisions of section 7 (2)(b) of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), which expressly refer to an award or decision of an industrial tribunal made with the consent of the parties. It is true that this Act is no longer in force; but when it was in force, in providing for appeals to the Appellate Tribunal set up under the said Act, the legislature had recognised the making of awards by the industrial tribunals with the consent of the parties. Therefore, we cannot accept the argument that cancellation of reference would be necessary in order to give effect to the amicable settlement of the dispute reached by the parties pending proceedings before the industrial tribunal. In this connexion it may be relevant to refer to some other provisions of the Act, which impose restrictions on the parties (luring the pendency of the reference proceedings. Under section 10(3), where an industrial dispute has been referred to an industrial tribunal, the appropriate government may by order prohibit the continuance of any strike or lock out in connexion with such dispute which may be in existence on the date of the reference. Similarly, under section 33, during the pendency of the proceedings before an industrial tribunal, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice 153 1204 of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. Failure to comply with the provisions of section 33(1) is made punishable under section 31 of the Act. These provisions show that during the pendency of the proceedings before the industrial tribunal the parties to the dispute are expected to maintain status quo and not to take any action which would disturb industrial peace or prejudice a fair trial before the industrial tribunal. If the power to cancel a reference made under section 10 (1) is held to be implied, the proceedings before the industrial tribunal can be terminated and superseded at any stage and obligations and liabilities incurred by the parties during the pendency of the proceedings would be materially affected. It is because all these provisions are intended to operate as a self contained Code governing the compulsory adjudication of industrial disputes under the Act, that section 15 enjoins upon the industrial tribunals to hold their proceedings expeditiously and to submit their awards as soon as it is practicable on the conclusion of the proceedings to the appropriate government. Thus time is usually of essential importance in industrial adjudications and so the Act imposes an obligation on the industrial tribunals to deal with their proceedings as expeditiously as possible. If the appropriate government has by implication the power to cancel its order passed under section 10(1), the proceedings before the industrial tribunal would be rendered wholly ineffective by the exercise of such power. Apart from these provisions of the Act, on general principles it seems rather difficult to accept the argument that the appropriate government should have an implied power to cancel its own order made under section 10(1). If on the representation made by the employer or his workmen the appropriate government considers the matter fully and reaches the conclusion that an 1205 industrial dispute exists or is apprehended and then makes the reference under section 10(1), there appears to be no reason or principle to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by itself In dealing with this question it is important to bear in mind that power to cancel its order made under section 10(1), which the appellant claims, is an absolute power; it is not as if the power to cancel implies the obligation to make another reference in respect of the dispute in question ; it is not as if the exercise of the power is subject to the condition that reasons for cancellation of the order should be set out. If the power claimed by the appellant is conceded to the appropriate government it would be open to the appropriate government to terminate the proceedings before the tribunal at any stage and not to refer the industrial dispute to any other industrial tribunal at all. The discretion given to the appropriate government under section 10(1) in the matter of referring industrial disputes to industrial tribunals is very wide; but it seems the power to cancel which is claimed is wider still; and it is claimed by implication on the strength of section 21 of the . We have no hesitation in holding that the rule of construction enunciated by section 21 of the in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of section 10(1) of the . It would now be necessary to refer to the decisions to which our attention was invited in the course of arguments. For the appellant Dr. Bannerjee has strongly relied on the decision of this court in Minerva Mills Ltd. vs Their Workmen (1). He contends that Mahajan J. who delivered the judgment of the court, has expressly observed in his judgment that from the relevant provisions of the Act "It could not be held that it was implicit in section 7 that the government could not withdraw a dispute referred to a tribunal or make the appointment of a tribunal for a limited period of time. " The argument is that this observation shows that the government can withdraw a pending reference from one tribunal and refer it to another tribunal, and, (1) ; 1206 according to the appellant, that is exactly what has been done by it in the present case. In the case of Minerva Mills Ltd. (1), however, the question about the implied power of the appropriate government to cancel its order made under section 10 did not arise for consideration. The point which was raised by the appellant was that the government had no power to appoint a tribunal for a limited duration ; and the argument was that if industrial disputes are referred to a tribunal, all the said disputes must be determined by the said tribunal and not by any other tribunal, notwithstanding that the appointment of the original tribunal was for a limited duration. The first tribunal in the said case had been appointed on June 15, 1952, and some industrial disputes had been referred to it. The tribunal was appointed for one year. During its tenure the tribunal disposed of some of the disputes referred to it, but four disputes still remained undisposed of. For disposing of these references, a second tribunal was appointed on June 27, 1952. The validity of the constitution of the second tribunal was impugned by the appellant and it was urged that it is the first tribunal alone which can and must try the remaining disputes. This argument was rejected by this court, and it was held that it was perfectly competent to the appropriate government to appoint a tribunal for a limited duration. It would be noticed that in this case there was no question of cancelling an order made under section 10(1). The said order remained in force, and the only step which the government took was to make an order constituting a fresh tribunal to dispose of the references which had not been adjudicated upon by the first tribunal. It was on these facts that this court took the view that it was competent to the government to refer the said remaining disputes for adjudication to the second tribunal. Strictly speaking there was no occasion to withdraw any dispute from the first tribunal; the first tribunal had ceased to exist; and so there was no tribunal which could deal with the remaining disputes already referred under section 10(1). That is why the government purported to appoint a second tribunal to deal with the said dispute. In our opinion, the decision in the Minerva Mills Ltd. (1) cannot be (1) ; 1207 cited in support of the proposition that the appellant has power to cancel the order of reference made by it under section 10(1). The decision of this court in Strawboard Manufacturing Co. Ltd. vs Gutta Mill Workers ' Union (1), is then cited in support of the proposition that the appellant has implied power to cancel its order made, under section 10(1). In this case, the government of the State of Uttar Pradesh had referred an industrial dispute to the Labour Commissioner on February 18, 1950, and had directed the Commissioner to make his award not later than April 5, 1950. While the proceedings were pending before the Commissioner, two additional issues were referred to him. Ultimately, the award was made on April 13, and it was sought to be validated by the issue of a notification by the Governor of Uttar Pradesh on April 26, by which the time for making the award was retrospectively extended up to April 30, 1950. This court held that the notification retrospectively extending the period to make the award was invalid. Since the award had been made beyond the period prescribed by the original notification, it was void. It is, however, argued that in dealing with the (question of the validity of the award it was observed by Das J. (as he then was), " In the circumstances, if the State Government took the view that the addition of those two issues would render the time specified in the original order inadequate for the purpose it should have cancelled the previous notification and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award. The State Government did not adopt that course." As we read the judgment, we are not inclined to accept the appellant 's assumption that the passage just cited expresses the view accepted by this court. Read in its context the said passage appears to state the argument urged by Dr. Tek Chand on behalf of the appellant. The appellant appears to have urged in substance that if the State Government thought that the addition of new issues referred to the Commissioner by subsequent notification made it difficult for him to submit his award (1) ; 1208 within the specified time, the local government should have cancelled the original reference, made a fresh comprehensive reference and given him requisite time for making his award. Since that was not done, the position could not be rectified by the issue of the impugned notification retrospectively extending the time originally fixed. It is in connexion with this argument that the statement on which reliance is placed was apparently made by the learned counsel for the appellant. If that be the true position, no argument can be based on these observations. It is conceded that the question about the power of the appropriate government to cancel an order of reference made under section 10(1) did not arise for discussion or decision in this case. The third decision to which reference has been made in support of the appellant 's case is the decision of Bishan Narain J. in The Textile Workers ' Union, Amritsar vs The State of Punjab and others (1). Bishan Narain J. appears to have taken the view that the power to cancel an order of reference made under section 10(1) can be implied by invoking section 21 of the , because he thought that by the exercise of such a power, the appropriate government may be able to achieve the object of preserving industrial peace and harmony. The judgment shows that the learned judge was conscious of the fact that " this conclusion may have the effect of weakening a trade union 's power of negotiation and may encourage the individual firms to deal directly with its (their) own workmen but it is a matter of policy with which I have nothing to do in these proceedings. " In dealing with the present question, we would not be concerned with any questions of policy. Nevertheless, it may be pertinent to state that on the conclusion which we have reached in the present case there would be no scope for entertaining the apprehensions mentioned by the learned judge. As we have already indicated, the scheme of the Act plainly appears to be to leave the conduct and final decision of the industrial dispute to the industrial tribunal once an order of reference is made under section 10(1) by the appropriate government. We must accordingly hold that Bishan Narain J. was (1) A.I.R. 1957 Pun. 1209 in error in taking the view that the appropriate government has power to cancel its own order made under section 10(1) of the Act. The decision of the Kerala High Court in Iyyappen Mills (Private) Ltd., Trichur vs State of Travancore Cochin (1), is not of much assistance because in this case the learned judges appear to have taken the view that the first tribunal before which the industrial dispute was pending had ceased to exist at the material time when the dispute was referred by the local government for adjudication to the second tribunal. If that be the true position, the conclusion of the learned judges would be supported by the decision of this court in Minerva Mills Ltd. (2). Then, in regard to the observations made by Sinha J. in Harendranath Bose vs Second Industrial Tribunal (3), it is clear that the learned judge was in error in seeking to support his view that the appropriate government can cancel its order made under section 10(1) by the observations found in the judgment of this court in Strawboard Manufacturing Co. Ltd. (4). We have already stated that the said observations are really a part of the arguments urged by the appellant before this court in that case and are not obiter observations made by the learned judge. The last case to which reference must be made is the decision of Rajamannar C. J. and Venkatarama Aiyar J. in South India Estate Labour Relations Organisation vs The State of Madras (5). In this case the Madras Government had purported to amend the reference made by it under section 10 of the Act and the validity of this amendment was challenged before the court. This objection was repelled oil the ground that it would be open to the government to make an independent reference concerning any matter not covered by the previous reference. That it, took the form of an amendment to the existing reference and not an additional reference is a mere technicality which does not merit any interference in the writ proceedings. The objection was one of form and was without substance. It would thus appear that the question before (1) (2) ; (3) (4) ; (5) 1210 the court was whether the appropriate government can amend the reference originally made under section 10 so far as the new matters not covered by the original reference are concerned, and the court held that what the appropriate government could have achieved by making an independent reference, it sought to do by amending the original reference itself. This decision would not assist the appellant because in the present case we are not considering the power of the govern ment to amend, or add to, a reference made under section 10(1). Our present decision is confined to the narrow question as to whether an order of reference made by the appropriate government under section 10(1) can be subsequently cancelled or superseded by it. We must, therefore, confirm the finding made by the learned judges of the High Court at Patna, that the notification issued by the appellant cancelling the first two notifications is invalid and ultra vires. That takes us to the question as to the form in which the final order should be passed in the present appeals. The High Court has purported to issue a writ of certiorari against the State Government quashing the impugned notification. It has, however, been held by this court in The State of Madras vs C. P. Sarathy (1) that in making a reference under section 10(1) tile appropriate government is doing an administrative Act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. That being so, we think it would be more appropriate to issue a writ of mandamus against the appellant in respect of the impugned notification. We would also like to add that since the first two industrial disputes referred by the appellant under the first two notifications have remained pending before the tribunal for a fairly long time, it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible. In the result, the appeals fail and must be dismissed with costs. Appeals dismissed.

The appellant is a manufacturer of various types of food products known as Sapaghetti, Macaroni, Vermicelli, etc., failing under Heading No. 1902.10 of the Central Excise Tariff Act. The said goods had been made dutiable only by the Finance Bill 1987 88 with effect from Ist March, 1987. The appellant claimed that their pre budget stocks of fully manufactured non excisable goods were entitled to duty free clearance. The Assistant Collector of Central Excise, the Collector of Central Excise (Appeals) and the Tribunal rejected the claim of the appellant. Before this Court it was contended on behalf of the appellant that the relevant date would be the date of manu facture and in this case the manufacture was complete before the introduction of the budget. Dismissing the appeal, this Court, HELD: (1) Excise is a duty on manufacture or production. But the realisation of the duty may be postponed for admin istrative convenience to the date of removal of goods from the factory. Rule 9A of the Central Excise Rules merely does that. [314C] (2) The scheme of the Act read with the relevant rules framed under the Act, particularly rule 9A, reveals that the taxable even is the fact of manufacture or production of an excisable article, the 312 payment of duty is related to the date of removal of such article from the factory. [313F] (3) On the basis of rule 9A of the Central Excise Rules, the Central Excise authorities were within the competence to apply the rate prevailing on the date of removal. [314E] Karnataka Cement Pipe Factory vs Supdt. of Central Excise, and Tamil Nadu (Madras State) Handloom Weavers Co operative Society Ltd. vs Assistant Collector of Central Excise, [1978] ELT J. 57, referred to.

ivil Appeal Nos. 583 and 686 of 1974. Appeal from the Judgment and Order dated 28 2 74 of the Andhra Pradesh High Court in Election Petition No. 1/72 and Civil Appeal No. 686 of 1974. From the Judgment and Order dated 28 2 74 of the Andhra Pradesh High Court in Election Appeal No. 52/73. M.C. Bhandare, K. Krishna Rao, K. Rajindra Choudhary and Mrs. Veena Devi Khanna for the Appellant in CA 583/74. 492 A.K. Sen, I. Kotireddy and G.N. Rao, for Respondent No. 1 in C.A. 583/74 and also for the Appellant in C.A. 686/74. The Judgment of the Court was delivered by UNTWALIA, J. These are two appeals under section 116A of the Representation of People Act, 1951 hereinafter referred to as the Act, arising out of an election dispute concerning the election held on the 5th and 8th of March, 1972 to the Andhra Pradesh Legislative Assembly from Purchur Constituency. Six persons had filed nominations for stand ing as candidates at the election. Four of them, who were impleaded as respondents 2 to 5 in the election petition, withdrew in time and did not contest the election. The only two persons left in the field for a straight contest were the two appellants in the two appeals namely M. Narayana Rao, appellant in Civil Appeal No. 583 of 1974 hereinafter referred to as Rao or respondent No. 1 (for brevity, the respondent) according to his position in the election peti tion and G. Venkata Reddy, appellant in Civil Appeal 686 of 1974 hereinafter to be called Reddy or the election peti tioner. Rao was declared elected on the 11th March, 1972 by a margin of a few hundred votes. Reddy challenged his election by filing an election petition under the Act on several grounds of corrupt practices said to have been committed by or on behalf of Rao as also on the ground that several malpractices and mistakes had taken place in the counting of the votes. Reddy in his election petition besides asking for the setting aside of the election of Rao, also claimed that he should be declared elected in his place. A learned single Judge of the Andhra Pradesh High Court in a very long, elaborate, exhaustive, which at times was exhausting, judgment has accepted the case of the election petitioner in regard to one type of corrupt prac tice having been committed on behalf of the respondent and set aside his election. Rao has preferred the appeal from the said order. A recount of the votes polled was ordered by the learned Judge and even after re examination of the validity or invalidity of certain votes, he found on re count, that Rao had still majority of votes in his favour although the margin was further reduced. In that view of the matter, Reddy 's prayer for being declared elected was refused by the High Court. Hence Reddy 's appeal. Both the appeals arising out of the same election petition have been heard together and are being disposed of by this common judgment. We would like to state at the outset that even in regard to the limited questions which fell for our deter mination in these appeals, the judgment of the High Court is so lengthy and cumbersome, at times suffering from unneces sary repetitions and discussions, that while discussing the main issues in these appeals, we have not thought it neces sary to meet and deal with all the reasonings of the High Court although in arriving at the decision we have taken them into consideration. If we do so, our judgment will also be unnecessarily very long. But we must record our appreciation for the tremendous labour put in the High Court by lawyers on either side and the very great pains which the learned Judge has taken in preparing a careful and exhaustive judgment both on facts and in law. 493 Reddy contested the election as a candidate of the Indian National Congress Party and Rao was an Independent candidate. Reddy 's election symbol was "Cow and Calf" while that of Rao was a "Tractor". The polling in the Constituen cy was held on the 5th of March, 1972. Due to disturbances at the 8 polling booths at Chinna Ganjam with which we shall be concerned in Rao 's appeal, polling had to be postponed to the 8th of March, 1972 on which date the polling was com pleted at Chinna Ganjam. At the counting of votes done on the 11th of March, 1972 the Sub Collector, Ongole, who was the Returning Officer of the constituency, found that Rao had polled 31,038 votes while the votes polled by Reddy were only 30,728. Approximately 1,398 votes were declared as invalid by the Returning Officer. It may just be stated here that the total number of electorates in Purchur Constituency was 77,932. Votes polled were quite a good number amounting to 63,164. In short the election petitioner 's case was that being a sitting member of the Assembly from the Purchur Constituency he was very popular and had great chances of success in the election in question. The respondent, his supporters and agents felt that the election petitioner could be defeated only by use of undue influence, force and violence on a large scale and not by a fair election. With that end in view it was averred by Reddy in his election petition that one Sri Mandava Sitaramayya, an influential worker of his was assaulted at Purchur on the 2nd of March, 1972 by Yarla gadda Subbarao, brother in law of the respondent. Although the beating of Sitaramayya and the illegal activities of the respondent were brought to the notice of the Deputy Superin tendent of Police and Sub Collector, Ongole at 7.00 P.M. on the 4th of March, 1972 when they were camping at Purchur and they were requested to take adequate precautions for a fair and free poll, the Deputy Superintendent of Police failed to do so. By the 4th of March, 1972, according to the case of Reddy, the atmosphere was thick with rumours that he and his men would be beaten and done to death, his supporters and voters would be prevented from exercising their fran chise and that in these endearvours of Rao he and his agents had the full support and cooperation of the Police Depart ment headed by Shri A. Gopal Reddy, Deputy Superintendent of Police. Chinna Ganjam and its surrounding villages, Reddy claimed, lay in his stronghold area. Rao and his agents under the umbrella of protection of the police started an orgy of violence particularly in Chinna Ganjam and its surrounding villages. On the 4th of March, 1972 the re spondent collected his agents and supporters at his election office at Chinna Ganjam and instructed them to go ahead by using undue influence, violence and force to prevent the voters from casting their votes and not to allow peaceful conduct of the poll at Chinna Ganjam. The case of Reddy, the election petitioner, further was that on the morning of the 5th of March, 1972 Rao 's support ers, about 200 in number, gathered from various villages with the active assistance of J.S. Krishnamurthy (respond ent No. 2 in the election petition one of the candidates who had withdrawn) and Muddana Rangarao of Alankar Theatre, Inkollu, started threatening, beating and stone pelting 494 of the voters and supporters of Reddy in Chinna Ganjam near the polling station and elsewhere. This mob, amongst oth ers, included the 18 persons mentioned in paragraph 8(f) of the election petition. As a result of the violent activities of the supporters of the respondent and the panic created thereby, the polling at Chinna Ganjam which had started at 7.30 A.M. on the 5th of March, 1972, was stopped between 9.00 A.M. and 11.30 A.M. When it was resumed again 11.30 A.M. the electors were all scared and there was poor re sponse from them. Rao 's agents again started an orgy of violence at about mid day. Voters who were waiting at the polling booths were threatened and dispersed and when Reddy 's supporters including Marri Subba Reddy of Munnamva ripalem were attempting to infuse confidence in the voters, the mob consisting of persons wearing badges with "Tractor" symbol, rushed upon the innocent voters and forced them to flee for their lives. This was all done with the active support of the police. During the afternoon disturbances, Reddy 's case has been, the police most unjustly opened fire upon the dispersing and fleeing persons killing outright Marri Subba Reddy and seriously injuring, Komatla Rama chandra Reddy, a resident of Pedda Ganjam, an innocent passerby. Reddy 's case further runs thus. He went to Chinna Gan jam at about 2.00 p.m. on the 5th of March, 1972 and when he was taking coffee in a hotel, the hooligans numbering in all about 300 engaged by Rao including the 18 persons named in paragraph 8(f) of the election petition armed with sticks, iron rodes and other weapons surrounded the hotel, forced Reddy to come out and severely assaulted him. Reddy had to be removed first to Chirala Government Hospital gad finally to Guntur Hospital where he remained under treatment for a few days. As a result of the violent disturbances created by Rao 's agents and supporters at Chinna Ganjam the voting was postponed to March 8, 1972 and completed on that date. The election petitioner had also taken a stand in his election petition that the respondent and his supporters went round canvassing from 3.00 p.m. on the 5th of March, 1972 that Reddy was dead or was sure to die and there was no use casting votes in his favour. The panic created by the respondent and his men prevented several voters from exer cising their franchise or coerced them to cast their votes in favour of the respondent. Certain other allegations were made in the election petition alleging that the respondent had utilised the services of a Government servant, and had indulged in other various types of malpractices. It is not necessary to refer to them in any detail as the Trial Judge has not accepted the election petitioner 's case in regard to the said allegedly corrupt practices. The findings of the High Court were not challenged by Reddy before us. We may, however, state in passing that reckless allegations were made by Reddy against Rao alleging the commission of corrupt practices within the meaning of almost every sub section of section 123 of the Act. But the only one found by the High Court against Rao is the commission of corrupt practice of undue influence within the meaning of sub section (2) of section 123. Reddy in his election petition alleged Commission of several malpractices, mistakes and irregularities in the counting of the votes. 495 Several of his valid votes were said to have been wrongly rejected, several of the invalid votes were wrongly counted for Rao and so on and so forth. He asserted that the Retur ing Officer had wrongly turned down his request for a re count and if recount is ordered by the Court it would be found that he had polled the majority of votes. Upon such allegations, the details of some of which but not of all, were given in the election petition, Reddy claimed a decla ration for himself of having been elected to the Legislative Assembly from Purchur. On the pleadings of the parties the High Court framed several issues and the relevant ones for the disposal of these appeals are the following: "1 (a) Whether the allegations made in para graph 8(a) to (k) of the petition constitute cor rupt practice of and 'Undue Influence ' envisaged under Sec. 123(2) of the Representation of the People Act, and the I st respondent himself or his agent or any other person with his consent or that of his election agent committed the same ? (b) If the allegations made in paragraph 8(a) to (k) of the petition be true, is the election of the I st respondent liable to be set aside on the ground of commission of corrupt practice, namely exercise of 'Undue Influence ' envisaged under section 123(2) of the Representation of the People Act? (c) Whether any such corrupt practice if proved to have been committed by an Agent of the 1st respondent, other than his Election Agent, has materially affected the result of the Election in so far as it concerns the 1st respondent? 6(a) Whether the allegation that the Return ing Officer and his staff committed several mis takes and irregularities in the matter of counting, bundling, rejection and reception of votes as alleged in paragraph 9(a) to (k) of the petition is true ? (b) Whether 472 votes said to have been cast in favour of the petitioner were rejected on the ground that the mark was put on the back on the ballot papers and whether such rejection is improp er and void ? (c) Whether the pleading in paragraph 9(b) of the petition is liable to be struck down for not fur nishing the particulars such as serial numbers of ballot papers etc. , ? (d) Whether the allegations regarding the irregularities and violations in the rejection or reception or counting of votes made in paragraph 9(c) to (k) of the petition are vague and are liable to be struck down for want of material particulars ? 496 (e) Whether the improper reception of void votes or improper rejection of valid votes and mistakes if any in counting of votes has materially affected the result of the election ? 7 (a) Whether the order of the Returning Officer rejecting the request of the petitioner for recount of votes is erroneous and contrary to law ? If so what is its effect ? (b) Whether in the circumstances mentioned in paragraphs 9(a) to (k) of the petition the peti tioner is entitled to scrutiny of ballot papers and recount of votes by this Court ? 8. Whether the election of the 1st respondent is liable to be set aside on any of the grounds alleged in the petition ? 9. Whether the petitioner is entitled to be declared duly elected candidate to the Purchur Constituency ?" The High Court states in its judgment: "Issues l(a), (b) and (c) relate to the allegations in paragraphs 8(a)to (k) of the election petition. They cover several allegations of corrupt practice of undue influence envisaged by section 123 (2) of the Act. " For the sake of convenience the learned Judge split up issue 1 (a) incidence wise with reference to each of the alleged ones. It would be useful to quote the split up issues from the judgment of the High Court. 1 (a)(i)Whether the allegation made in paragraph 8(c) of the election petition viz., the attack on Mandava Seetaramayya, an influential worker and supporter of the petitioner on 2 3 1972 by Yarlagadda Subbarao of Karamchadu is true ? 1 (a) (ii) Whether the allegations made in paragraph 8(f) of the election petition that on the night of 4 3 1972 the 1 st respondent collected his agents and supporters in Chinna Ganjam at his election office and instructed them to use undue influence, violence and force in preventing the voters from exercising their franchise and peaceful conduct of the poll is true ? 1(a)(iii) whether the 'allegation contained in paragraph 8(g) of the election petition that the 1st respondent 's agents, workers and supporters including the 18 persons named in the said para graph started threatening, beating and pelting stones on the voters and supporters of the peti tioner at Chinna Ganjam Polling Stations and as a consequence thereof the polling was stopped and the voters were prevented from casting their votes between 9.00 A.M. and 11.30 A.M. 1 (a)(iv) Whether the polling was resumed at 11.30 A. M. and the 1st respondent 's agents again started an. orgy of violence by the 1st respond ent 's agents, workers and supporters including those named in paragraph 8(f) of the 497 election petition and several others wearing "Tractor Badges" and disturbed the polling and forced the voters to flee away without casting their votes and the police most unjustly opened fire upon the fleeing persons as alleged in para graph 8(h) of the election petition ? 1 (a)(v) Whether the petitioner was attacked by the 300 persons as alleged in paragraph 8(i) of the election petition ? 1(a)(vi) Whether as alleged in paragraph 8(i) of the petition a little later some of the petitioner 's voters were threatened and beaten by the 1st respondent 's supporters including the persons mentioned in paragraph 8(f) of the petition ? 1(a) (vii) Whether the allegation in para graph 8(j) that the I st respondent and his agents workers and supporters went round canvassing from about 3.00 P.M. on 5 3 1972, that the petitioner was dead or was sure to die and as such there was no use of casting votes in his favour, is true ? 1(a)(viii) Whether as a result of the above incident several voters failed to cast their votes even at the repoll held on 8 3 1972 ?" Although the High Court has found that Yarlagadda Subbarao and four others beat Mandava Seetaramayya, it could not be established that they were the agents of Rao or had attacked him with his consent. Issue No. 1(a)(i) was decid ed against the election petitioner. The finding of the High Court on Issue No. 1 (a)(ii) is as follows: "From the above discussion, it is established that the 1st respondent came to his election office at Chinna Ganjam on the night of 4 3 1972 accompa nied by R.W. 13, Ravipudi Venkatadri, Respondent No. 2, and one Muddana Rangarao. It is also estab lished that at his election office, Koyi Mohanarao, Karanam Balaram, Karanam Nayudamma, Karanam Ankamma, Muddana Madana Mohana Rao, Parvathareddy Narasimharao, Parvathareddy Satyanarayana, Parva thareddy Sriramayya, Ghanta Subbayya, Thumalapenta Venkateswandu, Thummalapenta Venkateswamy, Ghunta Venkateswarulu, Narahari Venkatasubbarao, Chunduri Radhakrishna Murty, B.P.R. Vittal were present alongwith some other persons whose names are not specially mentioned by any of the witnesses. It is also proved as alleged in paragraph 8(f) of the election petition that in the presence of the abovementioned persons, the I st respondent instructed and advised those persons and others present there "to go ahead by using undue influ ence, violence and force in preventing the voters from exercising their right of franchise and the peaceful conduct of the poll as otherwise. he had little chance of success." 498 Issue No. 1 (a)(iii) was also decided against the respondent and it was held: "Though the petitioner 's deposition in this behalf is based only on the information furnished by the other witnesses whose evidence has already been discussed, the other evidence discussed above clearly establishes that Koyi Mohana Rao, Karnam Nayudarnma, Karanam Balaram, Karanam Ankamm, R.W. 13, Ravipudi Venkatadri, B.P.R. Vittal, Chunduri Radhakrishna Murty, Muddana Madann Mohana Rao, Parvathareddy Narasimha Rao, Munsif of Sobhirala and his sons, Satyam, Sriramnlu his grandson Ghanta Subbayya and Thummalapenta Venka taswamy, Narahari Venkata Subbarao and Thummala penta Venkateswarlu and some other people of Chirala and other villages over 100 in number pelted stones and disturbed the voters in the queues at the polling booths of Chinna Ganjam as a result of which polling was suspended from 9.30 A.M. to 11.30 A.M. While deciding this issue presence of a few persons names in paragraph 8 (f) of the election petition was not found as persons taking part in the disturbance. On Issue No. 1 (a) (iv) the finding of the High Court is: "From the evidence discussed above, I find that the polling which was resumed at about 11.30 A.M., continued peacefully till about 2.00 P.M., thereafter the polling was was disturbed by the persons who are found under Issue No. 1 (a)(iii) to have disturbed the polling in the morning by violence alongwith others which consti tuted a mob of nearly 300 persons armed with sticks and stones, they pelted stones at the queues of the voters standing near the polling booths causing injuries to one Kanna Nagayya and thus scared them away. The Police apprehending fur ther danger opened fire resulting in the death of Marri Subba Reddy and injuries to Komatla Ramachan dra Reddy (P.W. 33). The persons among others whose identity is clearly established by the evidence discussed above in the commission of the act of undue influence are (1) Koyi Mohana Rao, (2) Karanam Nayadamma, (3) Karanam Balaram, (4) Karanam Ankamma, (5) R.W. 13, Ravipudi Venkata dri, (6) B.P.R. VittaI, (7) Chunduri Radhakrishna Murty, (8) Muddana Madhans Mohana Rao, (9) Parva thareddy Narasimha Rao, Munsif of Sobhirala and his sons, (10) Satyam, (11) Sriramulu, (22) his grandson Ghanta Subbayya, (13) Thummalapenta Venkwataswamy, (14) Narahari Venkata Subba Rao and (15) Thummalapenta Venkateswarlu." Issue No. 1 (a)(v) was also decided against Rao the re spondent and it was found: "From the evidence discussed above, in my view, it is established beyond all reasonable doubt that the petitioner 499 was attacked after he ran out of P.W. 12 's hotel and covered a distance of about 10 to 12 yards towards the Railway level crossing; he was attacked by an armed mob of over 100 persons some of whom were wearing "Tractor badges" and among the assailants of the petitioner were (1) Koyi Mohana Rao of Nagendla, Mangali Krishna of Chira la, Karnam Balaram of Thimma Samudram, Parva thareddy Narasimha Rao, Village Munsif of Sobhira la, Thummalapenta Venkataswamy of Sobhirala, Parvathareddy Sriramayya and parvathareddy Sat yanarayana the sons of Parvathareddy Narasimha Rao, the Village Munsif of Sobhirala. " Case against two of the alleged assailants namely Karnam Nayudamma and Pallapolu Venkateswarlu were not accepted. In regard to Issue No. 1 (a)(vi) the learned Judge held against the election petitioner stating "In this state of evidence, I am reluctant to act on the solitary statement of P.W. 41 and bold this allegation proved." Issue No. 1 (a) (vii) was also decided against the election petitioner and the learned Judge stated: "I, therefore, hold that the petitioner has failed to prove that the 1st respondent or his supporters spread the rumour of the attack on and the death of the petitioner and that thereby number of Congress voters left the queues at the polling booths without casting their votes. " Under Issue No. 1 (a)(viii) the findings recorded by the High Court against the election petitioner are: In view of the above discussion, it cannot be held that several hundred voters failed to cast their votes even at the re poll on 8 3 72 on ac count of the fear engendered by the violence perpe trated. by the 1st respondent or his agents or supporters on 5 3 72." Having thus recorded the findings under the various sub issues under Issue No. 1 (a) the Court proceeded to advert to the discussions of (b) and (c) and came to the conclu sion: "In view of the above discussion, I hold that the acts of 'corrupt practice ' were committed by the per sons above named with the consent of the 1st respondent and therefore the election of the 1st respondent is liable to be declared void under section 100 (1)(b) of the Act. His election is also liable to be declared void because his election agent, R.W. 13 is found guilty of corrupt practice of undue influence. The elec tion of the 1st respondent is liable to be declared void without the further proof that the result of the election has been materially affected. Issue 1 (b) is answered accordingly. " In regard to Issue No. 1 (c) the High Court came to the conclusion that though some of the persons who committed the corrupt practice 500 of undue influence on 5 3 1972 were agents of the respond ent, if R.W. 13, Rao 's election agent, would not have been among them and if Rao 's consent to the acts of those others were not established, the election of the respondent could not have been set aside because there was no proof that the result of the election had been materially affected on account of the commission of those corrupt practices. But since the Court found that undue influence on the 5th March had been committed not only with the consent of the respond ent but also by his election agent himself he being present at Chinna Ganjam on that date, the election of Rao was frt to be declared void without any proof of the result having been materially affected. The High Court, if correct on facts, was undoubtedly right in law. The High Court had decided issue No. 7 in favour of the election petitioner and ordered recount. After a detailed discussion of the various allegations made in connection with the malpractices and mistakes committed in the counting of the votes under the various subissues of issue No. 6, the final conclusion of the High Court was that out of 31,038 votes counted for Rao by the Returning Officer, two had to be deducted as on recount the number was found less and on various grounds mentioned in the judgment, 129 more were directed to be deducted from Rao 's count thus leaving the net result of 30,907 valid votes in favour of Rao as per the decision of the High Court. For the reasons given in its judgment the High Court held that 27 votes ought to have been counted for Reddy which were wrongly not counted. Thus adding those 27 to his original figure of 30,728 the total valid votes, according to the High Court polled by Reddy were 30,755 sti11 short by 100 and odd from those of Rao. We first take up Civil Appeal 583 of 1974 filed by Rao. The principles of law governing election disputes and espe cially in regard to the charge of a commission of corrupt practice are well established by several decisions of this Court many of which have been noticed in the judgment of the High Court also. We do not propose to refer to any. We shall, however, keep the following principles in view in relation to this appeal: (1 ) That the charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi criminal charge but not exactly in the manner of establish ment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum. The charge has to be proved on appraisal of the evidence ad duced by both sides especially by the elec tion petitioner. (2) That the election held and results declared on the choice of the voters should not be lightly interfered with or set aside by a court of law. After all, in the holding of a fresh election are involved numerous botherations, tremendous ex penses, loss of public time and money and the uncertainty of the public representation from a particular Constituency. 501 (3) A charge of corrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, court should be very careful in scrutinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged. (4) That, this Court ordinarily and generally does not, as it ought not to, interfere with the findings of fact recorded by the High Court unless there are compelling reasons for the same, espe cially findings recorded on appreciation of oral evidence. (5) This Court, however, does not approve of the finding recorded by the High Court on a misreading or wrong appreciation of the oral evidence espe cially when it is unsupported or runs counter to the contemporaneous documentary evidence. (6) It must always be borne in mind that the consequences of setting aside of an election on the ground of corrupt practice are very serious for the candidate concerned as well as others involved in it. A court, therefore, should reach its conclusion with care and caution taking into consideration the broad probabilities, the natural conduct of the persons involved and the special situation in which a corrupt practice is alleged to have been committed. In the background of the above principles we proceed to examine whether the finding of the High Court against appel lant Rao on some parts of issue No. 1 resulting in the declaration of his election as void is sustainable. Broadly speaking, the findings against him are (1) that he had created a tense situation to bring about the defeat of Reddy before the holding of the poll on the 5th March, 1972; (2) that he had come to Chinna Ganjam in the night of the 4th March at about 9.00 p.m. in the company of his election agent Venkatadri and had instructed his workers to create violence, use force and not allow a free poll at chinna Ganjam; (3) that Rao 's election agent Venkatadri was present in Chinna Ganjam on the 5th March and had taken active part in the disturbances created on the date of the poll; (4) that Rao 's election agents, workers and supporters including more than 100 from outside Chinna Ganjam were responsible for creating violent disturbances both in the morning as also in the afternoon on the date of poll i.e. 5th March, 1972; (5) that as a result of the police firing one person on the side of Reddy was killed and another was seriously injured. But it may pointedly be stated here that there is no finding recorded by the learned Judge that the police was in league with Rao and had deliberately fired on the fleeing party of Reddy; (6) Reddy was assaulted by the workers and supporters of Rao at about 2.00 p.m. near the Railway crossing in the hotel of P.W. 12 Satyanarayana; (7) the respondent had not been able to establish that he had not come 502 Chinna Ganjam in the night of 4th of March and had gone somewhere else or that his case of the genesis of the occur rence which led to the disturbances on the 5th March was true. Apart from some witnesses being different, here or there, most of the witnesses to prove the case of Reddy apropos the findings above, are common and they are P.Ws 12, 29, 30, 31, 32, 42 besides P.W. 27 Reddy himself. Shorn of details we shall examine the main ingredients of the case to see how far they have been proved to bring home the charge of commission of corrupt practice on the part of Rao. As usual there must have been some tension in the Constituency because it was a straight contest and neck to neck fight, as the results show, between Reddy and Rao. Chinna Ganjam was not the only place where Reddy hoped to get an absolute majority of votes. The results indicate, although there is no separate counting of the votes polled at each booth these days, that in some parts of the Constit uency Reddy must have polled majority of the votes and in some parts Rao must have done 80. How is it then that Rao took into his head to create disturbances at Chinna Ganjam only ? Sitaramayya, as the finding of the High Court is, was assaulted by some person on the 2nd of March, That must have put Reddy on his guard to meet any eventuality of force. After all he was a sitting member belonging to the ruling party who, we are told, was in power in the State of Andhra Pradesh at the time of the election in question. It is difficult to accept or imagine that any police officer especially a person of the rank of a Deputy Superintendent of Police or the police in general would have gone against Reddy and favoured and sided with Rao. On the face of it, it was almost an absurd story and the High Court could not persuade itself to accept it. On 2 3 1972 Reddy had asked for police bundobust at several places (vide Ext. A 97, letter dated 2 3 1972) but had not included Chinna Ganjam in the list of those places. In the evening of the 4th March, 1972, as the evidence adduced on behalf of Reddy shows, he was present in the travellers bungalow at Purchur wherein were also staying the Returning Officer, the Deputy Superin tendent of Police and others. There is no evidence to show, that on receipt of the information from P.W. 31 as to what had happened in the election office of Rao in the night of the 4th March, Reddy contacted the Returning Officer or the Deputy Superintendent of Police and informed them about the alleged design of Rao and the instructions issued by him in that regard. It is no doubt true that there were some persons working for Rao at Chinna Ganjam who did not belong to that village but were outsiders. That by itself does not justify the inference that Rao had collected a mob of out siders to create violence. Rao was ill advised to deny in his written statement that the 18 persons named in paragraph 8(f) of the election petition were his workers or support ers. But they were so working from before at Chinna Ganjam as admitted by P.Ws 12, 29, 31 and 32. One thing is clear from the evidence in this case that inhabitants Sobhirals, a hamlet of Channa Ganjam, which is mostly inhabited by Telgas, had enmity with Reddy. Chinna Ganjam lay within the 503 Panchayat Samithi of Jetapalom of which Ronda Ramaswami Reddy was the President. He was an influential man on the side of Reddy. He had created several enemies including Balaram. Sobhirala people were inimically disposed towards him as he had not allowed them to have a separate Gram Panchayat. In this background, we proceed to examine the documentary evidence first to find out whether the allega tions made by Reddy against Rao as to the alleged happenings on the 4th and 5th of March, '72 are correct or not. If correct, they were very important events and they must have found place in one document or the other. But conspicuously they are absent. In this connection we would first refer to Ext. A 271 the Returning Officer 's Report dated 5 3 1972. In the report it is mentioned that Chinna Ganjam village is a troublesome village and not that Rao had made it troublesome just before the day of poll. Additional police bundobust was asked for in this village. It further mentions that at about 10.00 A.M. there were clashes outside the polling station when agents of both the candidates were present and on account of the disturbances, voters were not turning up. After the voting was resumed, for sometime, it went on peacefully, but at 3.45 P.M. the Returning Officer received a phone message from the Election Deputy Tehsildar, Chirala from Chinna Ganjam that polling was adjourned by all the Presiding Officers at 2.45 P.M. "consequent on the opening of fire by the police on an unruly mob gathered at the Polling Stations which has resulted in injuries to two persons of whom one was reported to have been seriously injured". This report further mentions that the election to Purchur Assembly was a straight contest between Reddy and Rao and on a complaint made by two boys of Rao 's group at about 10.00 A.M. that Sri Ramaswami Reddy, President, Pan chayat Samithi, Vetapalem and a few of his followers had assaulted them, "both sides gathered in large numbers and prepared for a clash. " Relating to the afternoon incident the report states: "The people belonging to both the par ties are said to have begun to reassemble near the Polling Stations with sticks and stones. They exchanged blows with sticks and hurled stones at each other." Then the report proceeds "Apprehending danger to the Polling Material and polling personnel the Presiding Officers are reported to have closed the doors of the polling Stations". The report further states "Apprehending danger to his life as also to the Polling parties, and danger to the polling material, the Inspector opened fire on the mob". It is to be emphasised that if the story set up by Reddy as to the happening in the election office of Rao in the night of the 4th March had any semblance of truth, the Returning Officer must have learnt if from Reddy either the same night at travellers ' bungalow at Purchur or on the 5th March before he sent his report to the Election Commission. It was neither alleged nor found that the Returning Officer had any animus against Reddy or was favourably disposed towards Rao. The version given in the report speaks a volume. We would now refer to Ext. A lO6 the First Information Report drawn on the statement of the Inspector of Police, Chirala, camping at Chinna Ganjam, in connection with the firing case. This was drawn 16 1104SC1/76 504 up at 5.15 P.M. on the 5th of March, 1972. Before we advert to some portions of this First Information Report, an admitted position of the topography may be stated which emerged from the evidence. There were 8 polling booths in Chinna Ganjam situated in two school buildings. On the Western side of the building is a road and the Railway line. On the Northern side of the Railway line is a railway crossing west of which is village Sobhirala and near the Railway crossing is the hotel of P.W. 12. Workers and supporters of Reddy admittedly were on the eastern side at or near about the time of disturbances and those of Rao were on the western side mostly on the road. In this background, let us see what the Inspector states in Ext. A 106. He says that on receipt of the information about the disturbances at Chinna Ganjam D.S.P. Ongole and he started from Purchur and picked up a striking force on the way. When they reached China Ganjam they "found a large gathering on the road and also on the eastern side of the High Court beyond the High School premises. " One Balaram of Thimmasamudram was leading the gathering, which was on the west of the High School compound. On being enquired by the Inspector he said that men of Reddy had assaulted their people. This was in conection with the assault on Maddana Madana Mohan Rao and Maddana Ramasinga Rao the two boys on the side of Rao:Statement of Ramasinga Rao recorded by the Inspector is Ext. B 27. entry on the basis of this statement in the police papers is B 28. The F.I.R. then states: "At about 2.45 p.m. the mob began gathering in large numbers on both the sides and hurling stones at each other. Ramaswamy Reddy was in the mob, which was hurling stones . . The mob belonging to both the candidates viz, Sri Gade Venkata Reddy and Maddukun Narayana was determined in their violent attitude and advanced towards the polling station to break open the same to enter into it to commit all unruly acts. " This report states that in all three rounds were fired. In the first Information Report as drawn originally 4 persons are named as accused, 3 belonging to the party of Rao and Ramaswamy Reddy a staunch and influential helper of Reddy. The case diary Ext. A 107 of the same date shows the total number of accused as 42, including the four mentioned earlier. Mr. M.C. Bhandare, counsel for Rao and Mr. A.K. Sen, counsel for Reddy drew our attention to this list of 42 persons which almost evenly included as members of the mob persons of both sides. It is remarkable that though Ronda Ramaswami President of the Panchayat Samithi, Vetapalem is shown as one of the leading member in the firing case, no where is to be found in any paper the name of Venkatadri the election agent of Rao. No paper mentions even his presence at Chinna Ganjam on the 5th of March. Now comes the most important document__statement of Reddy himself recorded at 5.55 p.m. on 5.3.1972 by a Second Class Judicial Magistrate which could be treated as a dying declaration, if unfortunately, Reddy would not have survived, but the injuries inflicted on him were not so severe as to result in his death. On the basis of this statement, later, a formal First Information Report was drawn up. This is 505 Ext. A 100. In answer to the Magistrate 's question as to how did Reddy receive injuries he narrated the story that when he came to Chinna Ganjam and Ongole road junction he heard that some 200 persons were brought for hire from Chirala, Thimmasamudram and other villages to disturb poll ing as he commanded 85% of electorate there. The persons who are said to have Collected the mob are Mohan Rao, Mangali Krishna Balaram, Krishna Murthy Babu of Chirala, Raghavaiah, Radha Krishnamurthy of Thimmasamudram, Rangarao, Cinema hall proprietor of Inkollu and Nayudamma, President of Chintagumpalli village. Neither Rao is mentioned nor Ven katadri 's name is mentioned as the persons who had collected the mob there. If there was any semblance of truth in the Reddy 's version of what happened on the night of the 4th in the election office of Rao, Reddy could not have missed to refer to that incident. If Venkatadri was present at Chinna Ganjam on the 4th or the 5th March, his name would have found first in the statement of Reddy. We deplore and deprecate the assault on Reddy a fact which has been found to be true by the High Court. We were informed and copies of the judgments were tried to be filed before us showing that all the cases have ended in acquittal and no person has been convicted of the alleged offences. But that apart, we reiterate, even at the risk of repetition, that the main story set up by Reddy as to what happened on the 4th night as also on the morning of the 5th and afternoon does not find support from any of the contemporaneous documents not even from the statement of Reddy himself. The statement of Ramasinga Rao was entered in the Station House General Diary, Vetapalem and it is Ext. A 128. The entry is Ext. The Entry of report is Ext. Although it is unfortunate that on behalf of Rao neither of the two boys said to have been assaulted nor any body else was examined to prove the incident of assault on them which led to the further disturbances on the 5th of March, 1972 at Chinna Ganjam, the contemporaneous documents do indicate that the genesis of the disturbance was the alleged assault on the two boys. It does not appear to be a case where a false story of assault on two boys was made a pre tence to start assault at Reddy 's workers and voters. Hardly any voter was injured or examined to state that a planned attempt was made on behalf of Rao to prevent the voters from casting their votes in favour of Reddy. Let us now see what kind of oral evidence is there to prove the incident. As to what happened in the Rao 's elec tion office at Chinna Ganjam in the night of 4th March, P.W. 32 Raju Bali Reddy is the primary witness of the alleged episode. He had a bunk near the election offices of the two candidates. We regret to find that Rao had in the beginning denied that he had any election office at Chinna Ganjam but he was constrained to admit that such an office had been opened by his supporters. We also do not appreciate the attempt on the part of Rao in challenging the claim of P.W. 32 of his running a beedi bunk at Chinna Ganjam near the houses where the election offices of the two candidates had been set up. Nevertheless 506 the story told by P.W. 32 is too imaginative and unreal to inspire any confidence. The High Court, in our opin ion, was wholly wrong in accepting his evidence to be true. He (P.W. 32) says that he saw the respondent coming in a car on the 4th of March, 1972 to Chinna Ganjam between 8.30 and 9.00 p.m. to his election office. He was asked to bring sodas to his election office. He took two dozens of soda bottles to Rao 's office and there he heard him saying "If Congress votes are polled I am sure to lose and requested them to see that votes are not polled if necessary even by violence". He names certain persons present there. There after he was asked to take some soda bottles to the Congress election office of Reddy. There P.W. 31 asked him "You had been to the election office of the first respondent, what is going on there ?". The said sodawala replied "that the first respondent was telling that if all the votes in Chinna Ganjam are polled he was sure to be defeated and even by resorting to violence they should see that votes are not polled". Is it a natural story ? Is it at all believable ? Was this conspiracy for creating violence at Chinna Ganjam suddenly and so openly hatched up in the Rao 's election office at Chinna Ganjam and in the presence of so many persons ? Was it so done uttering every relevant word of the conspiracy in the presence of the sodawala and making it audible to him ? Is it possible to believe that the sodawala passed on the words of the conspiracy to create violence at Chinna Ganjam in a cavalier and casual manner on the query of P.W. 31 ? All these questions posed above are suggestive of one and one answer only. The whole story smacks of nothing but untruth. It could never have happened in the manner stated by P.W. 32. P.Ws. 29,30, 31 and 42 who claimed to have heard this story from the sodawala are all out to support Reddy on any version and they cannot fare any better if the most unnatural story told by sodawala is too big to swallow and too incredible to accept .In disagreement with the findings of the High Court, we hold that Reddy has failed to prove that Rao and Venkatadri came to Chinna Ganjam in the evening of the 4th March, 1972 or that they instructed their agents and workers to deliberately create violence on the date of poll. We also hold that Venkatadri was not present at Chinna Ganjam on the 5th of March and had no part to play in the disturbances which took place on that date. It is no doubt true that disturbances did take place at Chinna Ganjam on the 5th of March. It was not a one side affair. Both sides were responsible for entering into clash es. The High Court has lightly brushed aside one very significant fact in this connection and which is a very telling one. How is it that in the police fire two persons were injured one of whom died, and both of them were men of Reddy ? In the circumstances, is it possible to accept that the police fired only on the fleeing party of about 2,000 persons ? The evidence on the side of Reddy shows that they did not aim any firing on the aggressors and attackers the men of Rao who all were on the western side. Unless one could go to the absurd extent of saying that members of the police force had also joined hands with the mob of Rao one has got to conclude that, mainly, aggressors and attackers 507 were the persons on the side of Reddy. They were the source of danger and .terror to the polling staff and the materials of the polling booths and the police had to open fire aiming at them for the protection of the polling staff and the materials. It is because of that reason that by the police firing two persons on the side of Reddy only were injured and none on the side of Rao. We are inclined to think strongly and justifiably that because of the disturbances which took place on the 5th of March, 1972 both in the morning and in the afternoon at Chinna Ganjam, Reddy felt it advisable to make a mountain out of it, and apart from many other unsustainable allegations of corrupt practices, which are made against Rao, he made use of the incident of dis turbances on the date of poll at Chinna Ganjam to connect Rao and his election agent with them. Without alleging their active participation or consent he had no material to succeed merely. on the ground of disturbances. And that led him to invent two tissues of untrue stories one the alleged talk by Rao in his election office in the night of the 4th March and the other the presence of Venkatadri at Chinna Ganjam on the 5th. In our opinion none of the two stories has any semblance of truth. The High Court committed a gross error in placing reliance upon such intrinsically and inherently weak pieces of oral evidence as against the contemporaneous documents. The reports Exts. A 374 to A 381 of the Presiding Officers of the Polling Station at Chinna Ganjam do not throw any further light except that due to. rioting polling had to be adjourned. The total number of electors in Chinna Ganjam was about 6000 and odd and as we have said above even assuming that a large majority of this was to cast their votes in favour of Reddy, by creating disturbances at Chinna Ganjam and preventing the voters from casting their votes in favour of Reddy or forcing ,them to cast them in favour of Rao, Rao could not have imagined to succeed in the election. There is no evidence to indicate what was the estimated strength of Rao and Reddy in the remaining 67,000 votes which were to be cast at several booths other than those at Chinna Ganjam. The date of poll being the 5th of March in the entire Purchur Constituency it was not possible even to estimate as to what actually had happened in other booths to induce Rao to plan the creation of disturbances at Chinna Ganjam. We do not agree with the finding of the High Court on issue No. l(a)(iii) that the polling had to be suspended because Rao 's people over 100 in number pelted stones and disturbed the voters in the queues at the polling booths of Chinna Ganjam. We are of the opinion that it was a sponta neous trial of strength on both sides in which were involved persons on the side of Reddy led by Ronda Ramaswami Reddy and several others who were helpers and workers of Rao. The under current of their participation in the disturbances was their previous enmity as already alluded to. Similarly we do not agree with the finding of the High Court as recorded under issue no. l(a)(iv). If 300 persons armed with sticks and stones pelted stones on the queues of the voters then some of them must have been injured by the police firing. But none was injured. No responsible government servant has been examined to say anything in support of Reddy 's story of the disturbances. We were informed 508 by Mr. Bhandare that a magisterial enquiry into the inci dent had been made. An Inspector General of Police, Andra Pradesh had also held an enquiry in respect of the disturb ances which took place at Chinna Ganjam on the 5th of March. By filing an affidavit in the High Court Rao wanted the reports of the Magistrate and the Inspector General of Police to be produced. But they were not made available as according to him the reports must have stated matters going in favour of Rao and against Reddy. Coming to the finding of the High Court apropos issue No. l(a)(v) we want to merely observe that Reddy must have been attacked by the mob in which must have been Rao 's men. But it was not as a result of any conspiracy, instructions or consent of Rao or his election agent. At or about the time when the clashes on the two sides were at their peak at about 2.00 p.m. the mob on the side of Reddy was on the eastern side and that of Rao was on the western side. Apprehending police firing or on its start the mob fled helter skelter. The mob on the western side must have lied towards village Sobhirala for their safety. In the way, they came across Reddy and as saulted him. While condemning in the strongest language the assault on Reddy, whoever were responsible for this, we do not find good reasons to connect the assault with Rao or Venkatadri. The High Court has presumed consent of the respondent in what happened on the 5th of March at Chinna Ganjam because of the respondent 's application Ext. A 273 in connection with the release of an Ambassador car MSM 2383 engaged in his election campaign which had been seized by the police while parked at the railway gate of Chinna Ganjam. It was just a coincidence that at the time the assault was made on Reddy, the car happened to be there. The presence of Badugn Subbarao either in ,the car or near it again may be an isolated act of Badugu Subbarao but the gap to connect the incident directly or indirectly with Rao to say that it was done with his consent is too big to be filled in by refer ence to the seizure of the car and the prayer of release of the Ambassador car. For the reasons stated above, we hold that the High Court has not decided issue No. 1 (b) correctly. No corrupt practice was established to have been committed by any person with the consent of the respondent or by his election agent and the election of Rao, therefore, was wrongly de clared to be void under section 100(1)(b) of the Act. Even so, we had to consider whether Civil Appeal 686 of 1974 filed by Reddy is fit to be allowed. Rao may not be guilty of having committed any corrupt practice yet, if on recount it could be found that Reddy had polled majority of votes, he could succeed in both the appeals. Mr. Sen, learned counsel for appellant Reddy made his submissions in regard to two types of ballot papers only and urged that if we were to hold in his favour in that regard the result of the counting would definitely tilt in favour of Reddy as he will have polled more votes than those polled by Rao. For the reasons to be hereinafter stated, we do not accept the argument of Mr. Sen to be well founded and correct and hold that the result of the number of 509 votes polled by each candidate arrived at by the High Court is correct and does not call for any interference by this Court. The first objection raised on behalf of Reddy relates to rejection of 338 votes apparently appearing to have been cast in his favour but were rejected on the ground that the marks given on them were on the reverse side of the symbol and not on the obverse side. Several such votes apparently cast in favour of Rao were also rejected. Mr. Sen submitted that 338 votes ought to have been treated as validly polled by Reddy. We do not accept this contention to be sound. In our opinion the High Court has rightly maintained their rejection. Rule 39(2)(b) of the Conduct of Election Rules, 1961 hereinafter referred to as the Rules, requires: (2) The elector on receiving the ballot paper shall forthwith; (a) proceed to one of the voting compartments; (b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote;" On a plain reading of the said rule it is clear that the voter has to make the mark on the ballot paper and not behind the ballot paper. The symbols are given on the ob verse or the front side of the ballot paper and the require ment of the rule to mark on the ballot paper on or near the symbol of the candidate for whom the elector intends to vote necessarily means marking on the obverse side either on the symbol itself or so near it as to clearly indicate the intention of the voter. Putting a mark on the reverse side even though because of the thinness of the paper the symbol may be visible is far from complying with the requirement of the rule. Such a mark will make the ballot paper in substance and in effect bearing no mark at all within the meaning of clause (b) of sub rule (2) of rule 56 of the Rules or bearing a mark indicating the vote thereon placed in such a manner as to make it doubtful to which candidate the vote has been given justifying its rejection under clause (d). Mr. Sen called our attention to the recent amendment of the Rules made in 1974 wherein it has been clearly specified that the mark must be put on the face of the ballot paper and also that the ballot paper must be rejected if it does not bear a mark on the face, and submitted that on the language of the rules as they stood at the relevant time in this case ballot papers bearing mark on the reverse side against the symbol of a particular candi date indicating the choice of the voter could not be reject ed as invalid. We think that the amendment of the rule merely clarifies what was intended earlier and does not make any change or departure from the previous position. Since some High Courts had taken a contrary view while considering the rules or similar rules, for the sake of clarification and precision, it appears to us, that amendment of the rule became necessary. A single Judge of the Andhra Pradesh High Court dealing with similar Gram Panchayat Rules had taken a contrary view in W.P. 2851/70, decided on 10 12 1970. The learned Judge followed the decision of the Allahabad 510 High Court in Swarup Singh vs Election Tribunal(1) and a decision of the Rajasthan High Court in Dhanpatlal vs Harisingh(2). We hold that the view expressed in those cases is not correct. On the contrary the decision of the Madras High Court in A. V. Palaniawami vs The Election Court (District Munsif), Tiruppur and others(3) in this regard expresses the correct opinion. The point in that case, has been well discussed with reference to various authorities both in India and other countries. We would like to refer to the dictum of Baron Pollock in Mr. Sykee vs Mr. Mc Arl hur(4) wherein it has been said that the mark must be on the face of the ballot paper and that the vote bearing cross on the back being not in compliance with the Act was rightly rejected. On the basis of the decision aforesaid as also on some others a passage is to be found at page 140 in Hals bury 's Laws of England, Third Edition, Vol. 14 to the fol lowing effect: "A ballot paper marked on the back only should not be counted, even though the mark shows through the paper on to the front". The High Court has noticed in its judgment paragraph 17(k) of Chapter VIII of the Hand Book issued and published by the Election Commission in 1972 for the guidance of the Return ing Officers. While indicating the procedure for counting, the Returning Officers have been instructed to reject a ballot paper when there is no mark at all on the front or when the mark is in blank area, that is to say at the back or entirely in the shaded area. It is no doubt true that the binding directions either generally or specially could be issued by the Election Commission under sub rule (1) of Rule 56. Sub rule (2) does not speak about the issu ance of any such directions. Even so in our opinion the administrative instructions issued by the Election Commis sion give a clue to the interpretation of rule 39(2) and rule 56(2) of the Rules. The instructions so issued are in onsonance with the interpretation of the rules aforesaid as put by us. The second objection relates to the acceptance in favour of Rao two groups of ballot papers one group consisting of 186 votes and the other 262 votes. The High Court has separately dealt with them in its judgment. Out of 186 votes Ext. X 26 contains 135 votes, X.27 11 votes, X.28 38 votes. X.29 one vote and X.30 one vote. Out of the other group Ext. X.31 contains 241 votes, X.32 one vote and X.33 20 votes. The High Court has mentioned the different types of defects which remained on the two groups of ballot papers aforesaid. Broadly speaking the defects were an infraction of rule 38(1) of the Rules making them liable to be rejected under clause (h) of sub rule (2) of rule 56. But then under the first proviso to sub rule (2) it has been stated ; "Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part (1) A.IR. 1960 All. 66. (2) AI.R. (3) (4) 4 O 'Malley and Hardeastle, 110. 511 of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. " On a consideration of the evidence adduced by the par ties and the broad probabilities and the circumstances of the case the High Court has come to the conclusion, and in our opinion rightly, that the said two groups of ballot papers were rightly not rejected by the Returning Officer and were correctly counted for Rao. The Returning Officer while accepting a ballot paper, even though, he does so under the proviso aforesaid, is not required to record any reasons for acceptance. Reddy had not made out any case that any objection had been taken on his behalf as respects the acceptance of the above mentioned votes of the two groups. No objection was specifically raised in the elec tion petition that any of the ballot papers counted in favour of Rao should have been rejected under rule 56(2)(h) or that it could not be accepted under the proviso. Reddy seems to have fished in troubled waters because of the order of recount made by the High Court in connection with some other defects which justified the making of such an order. The finding of the High Court in clearest term, which could not be assailed before us with any success, is as follows: "Having regard to the above discussion, it cannot be held that in the instant case the ballot papers which did not contain both the distinguish ing mark and the signature of the Presiding or Polling Officer or where either the signature or the mark was not present were accepted by the Returning Officer, without satisfying himself as to whether that defect was due to the mistake or the failure of the Presiding Officer or Polling Offi cer. As that is not established and as it is, also clear to the Court from the record placed before it, that these defects have occurred only due to the failure of the Presiding Officer and further as there is no doubt aS to the genuineness of these ballot papers, it is held that the ballot papers were rightly accepted by the Returning Officer. " In our judgment the High Court is right in arriving at the respective figures of valid votes 'polled by the two candi dates after recount as per the order of the High Court and in arriving at the conclusion that Rao had polled the major ity of the votes. For the reasons stated above we allow Civil Appeal No. 583 of 1974, set aside the judgment and order of the High Court declaring the election of M. Narayana Rao the appel lant in that appeal, void. We dismiss Civil Appeal No. 686 of 1974 filed by C. Venkata Reddy. Taking into consideration the totality of the circumstances of the case, we shall make no order as to costs in either of the two appeals. C.A. 583 of 1974 allowed. P.H.P. C.A. 686 of 1974 dismissed.

Under the proviso to section 58(2) of the an application for renewal of an existing permit shall be made not less than 120 days before the date of expiry of the permit. The procedure to be followed in this respect is the same as provided in section 57 for the grant of a fresh permit. Under section 58(3) a delay of not more than 15 days in making the renewal application can be condoned by the Re gional Transport Authority. The proviso to section 68F(1D) provides for the renewal of an existing permit for a limited period when a Scheme is pub lished under section 68C. Since a Scheme was published under this section the appellant made an application under section 68F(1D) for renewal of his permit. R was rejected by the RTA on the ground that there was delay of 18 days which was not capable of being condoned. The Transport Appellate Tribunal dismissed his appeal and the High Court summarily rejected his writ petition. In appeal to this Court it was contended that (i) Chapter IVA of the Act, which section 68 occurs, being a self contained code the proviso to section 58(2) was not applicable in the case of an application for renewal filed under the proviso to section 68F(1D) or (ii) in the alternative the delay could be con doned by the RTA for sufficient cause under section 5 read with section 29(2) of the . Dismissing the appeal, HELD: (1) (a) Section 68F(1D) imposes a prohibition on grant or renewal of permit during the intervening period between the publication of a scheme under section 68C and the publication of the approved scheme and if the proviso were not enacted. renewal of an existing permit expiring after the publication of the scheme under section 68C would have been barred. This, the legislature did not want and hence the proviso was introduced permitting renewal of an existing permit though for a limited period, despite the general prohibition enacted in sub section This renewal was not intended to be some special kind of renewal. There is no reason why the provisions of section 57 and the proviso to section 58(2) should not apply in case of a renewal application under the proviso to section 68F(1D).[569 A B] (b) chapter IVA is not a self contained code and the other sections apply to an application under the proviso to section 68F(1D)of the Act. [569D] (i) The procedure in section 57 applies because. there is no other procedure prescribed by the Act. [569C] (ii) The time limit specified in the proviso to section 58(2) also applied as otherwise there would be no time limit for making an application for renewal.[569D] (iii) Section 68F(3) also proceeds on the assumption that, but for its enactment, an order made by the RTA under sub~3 (1) or (2) of section 68F would have been appealable under section 64 and it was to exclude the applicability of section 64 that 68F(3) was enacted. [569 E F] 564 (2) The word used in sub section 3 is 'may ' and not 'shall ' and the RTA is given a discretion to entertain an applica tion for renewal of a permit even where it is beyond time, though not more than 15 days. It could never have been the intention of the legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely on the ground that the delay is of not more than 15 days. [570F. 571A B] 3 (a) Section 29(2) of the makes section 5 applicable in the ease of an application for renewal unless its applicability can be said to be expressly exclud ed by any provision of the Act. Sub section (3) of section 58 in so many terms says that the RTA .may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the RTA shall not be entitled to entetain it. [571E G] (b) There is an express provision in sub section (3) that delay in making an application for renewal shall be condona ble only if it is of not more than 15 days and that express ly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days. [571G]

vil Appeal No. 938 of 1963. Appeal from the judgment and decree dated December 19, 1960 of the Allahabad High Court in Income tax Reference No. 1588 of 1956. K. N. Rajagopala Sastri, R. H. Dhebar and R. N. Sachthey, for the appellant. A. V. Viswanatha Sastri and Naunit Lal, for the respondent. The Judgment of the Court was delivered by Subba Rao J. This appeal by certificate raises the question whether loss of cash by dacoity is an admissible deduction under section 10(1) of the Indian Income tax Act, 1922, hereinafter called the Act, in computing the assessee 's income in a banking business. The facts relevant to the question raised may be briefly state . The assessee is the Nainital Bank Limited. It is a puplic limited company which carries on the business of banking. It has various branches and one of them is situated at Ramnagar. In the usual course of its business large amounts were kept in various safes in the premises of the Bank. On June 11, 1951, at about 7 P.m. there was a dacoity in the Bank and the dacoits carried away the cash amounting to Rs. 1,06,000 and some ornaments etc. pledged with the Bank. For the assessment year 1952 53 the Bank claimed the said amount as a deduction in computing its income from the banking business on the ground that it was a trading loss. The Income tax Officer disallowed the claim on the ground that it was not a loss incidental to the banking business. On appeal, the Appellate Assistant Commissioner of Income tax, and on further appeal, the Income tax Appellate Tribunal, confirmed that finding. On a reference to the High Court of Judicature at Allababad, a Division Bench of that Court held that the loss by dacoity was incidental to the banking business and was, therefore, a trading, loss and that the assessee was entitled to a deduction of the same under section 10 (1 ) of the Act. Hence the appeal. Mr. Rajagopala Sastri, learned counsel for the appellant, argued that the Bank lost the money by burglary not in its capacity as a bank but only just like any other citizen, that the risk of L2Sup./64 9 342 burglary was not incidental to the business of banking and that, therefore, the amount burgled could not be deducted as a trading loss. Mr. A. V. Viswanatha Sastri, on the other hand, contended that the money lost by burglary was the stock in trade of the banking business, that it was kept in the Bank in the usual course of its business and that the risk of its loss was incidental to the carrying on of the said business and, therefore, the amount lost was a trading loss liable to be deducted under section 10(1) of the Act. Before we consider the law on the subject, it would be con venient at the outset to notice briefly the scope of the activities of banking business. Under section 5 (1 ) (b) of the Banking Companies Act, 1949, "banking" is defined to mean "the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or Otherwise"; and under section 5 (1) (c), "banking company" means any company which transacts the business of banking in India; under section 5(1) (cc), " 'branch ' or 'branch office in relation to a banking company, means any branch or branch office, whether called a pay office or sub pay office or by any other name, at which deposits are received, cheques cashed or money lent, and for the purposes of section 35 includes any place of business where any other form of business referred to in subsection (1) of section 6 is transacted," Therefore, a banking business consists mainly in receiving deposits, making advances, realizing them and making fresh advances. It is a continuous process which requires maintenance of ready cash in the bank premises. The Nainital Bank Ltd., is a public limited company incorporated for carrying on such banking business and Ramnagar branch is one of its branches doing such business. Unlike an individual, a limited company like a banking company comes into existence for the purpose of carrying on only the banking business and ordinarily there cannot be any scope for attributing different characters to that business. We therefore, start with the fact that the Ramnagar branch of the Bank had kept large amounts in the Bank premises in the usual course of its business in order to meet the demands of its constituents. It is settled law, and indeed it is not disputed, that cash is the stock in trade of a banking company. In Arunachalam Chettiar vs Commissioner of Income tax Madras(1), the Judicial Committee was considering the basis of the right of an assessee to ((1) , 83 (P.C.). 343 deduct irrecoverable loans before arriving at the profits of moneylending, and in that context stated: "The basis of the right to deduct irrecoverable loans before arriving at the profit of money lending is that to the money lender, as to the banker, money is his stock in trade or circulating capital; he is dealing in money." In Commissioner of Income tax, Madras vs Subramanya Pillai(1) a Division Bench of the Madras High Court, in explaining the principle why in money lending business allowances for bad debts were given, observed: "In the case of banking or money lending business . allowance for bad and doubtful debts was given for the reason that all the moneys embarked in the moneylending business and lent out for interest were in the nature of stock in trade of the banker or money lender and the bad and doubtful debts represented so much loss of the stock in trade. Losses in respect of the stock intrade have always been regarded as trade losses and allowed to be set off against the receipts. " The same view was expressed by the Full Bench of the Madras High Court in Ramaswami Chettiar vs Commissioner of Income tax, Madras (2 ) and by the Patna High Court in Motipur Sugar Factory, Ltd. vs Commissioner of Income tax, Bihar & Orissa(3). Under section 10(1) of the Act loss of stock in trade is certainly an admissible deduction in computing the profits. Payment received from an insurance company for stock destroyed by fire was taken into account as a trading receipt in computing the profits assessable to income tax; see Green (H. M. Inspector of Taxes) vs J. Gliksten and Son, Ltd. (4) ; and Raghuvanshi Mills Ltd. vs Commissioner of Income tax, Bombay City(5). If receipt from an insurance company towards loss of stock was a trading receipt, conversely to the extent of the loss not so recouped it should be trading loss. Loss sustained by an assessee owing to destruction of the stock in trade by enemy invasion was held to be a trading loss which the assessee was entitled to claim as a deduction: see Pohoomal Bros. vs Commissioner of Income tax, Bombay City(6). Loss incurred in stock in trade by ravages of white ants was allowed as trading loss in computing the profit of a business; see Hira Lal Phoolchand vs Commissioner of Income (1) , 92. (3) (5) ; (2) I.L.R. (4) (6) 344 tax, C.P., U.P. and Berar(1). We, therefore, reach the position that cash is a stock in trade of a banking business and its loss in the course of its business under varying circumstances is deductible as a trading loss in computing the total income of the business. But it is said that every loss of a stock in trade in whatsoever way it is caused is not a trading loss, but the said loss should have been caused not only in the course of the business but also should have been incidental to it. The leading case on the subject is that of this Court in Badridas Daga vs Commissioner of Income tax(2). There, the appellant was the sole proprietor of a firm which carried on the business of money lending. The agent of the firm withdrew large amounts from the firm 's bank account and applied them in satisfaction of his personal debts. In the firm 's account the balance of the amount not recovered from the agent was written off at the end of the accounting year as irrecoverable. This Court held that the loss sustained by the appellant therein as a result of I misappropriation by the agent was one which was incidental to the carrying on of the business and should therefore, be deducted in computing the profits under section 10 (1) of the Act. Venkatarama Ayyar J., speaking for the Court, observed: ,,The result is that when a claim is made for a deduction for which there is no specific provision in section 10(2), whether it is admissible or not will depend on whether, having regard to accepted commercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established, then the deduction must be allowed, provided of course there is no prohibition against it, express or implied, in the Act. " Applying the principle to the facts of the case before the Court, the learned Judge proceeded to state: "If employment of agents is incidental to the carrying on of business, it must logically follow that losses which are incidental to such employment are also incidental to the carrying on of the business. " The principle was clearly laid down and was, if we may say so, correctly applied to the facts before the Court. But there is a (1) (2) ; 345 passage in the judgment on which strong reliance was placed by the learned counsel for the appellant and it was contended that the instant case clearly fell under the illustration contained in the passage. It reads: "At the same time, it should be empbasised that the loss for which a deduction could be made under section 10(1) must be one that springs directly from the carrying on of the business and is incidental to it and not, any loss sustained by the assessee, even if it has some connection with his business. If, for example, a thief were to break overnight into the premises of a money lender and run away with funds secured therein, that must result in the depletion of the resources; available to him for lending and the loss must, in that sense, be a business loss, but it is not one incurred in the running of the business, but is one to which all owners of properties are exposed whether they do business or not. The loss in such a case may be said to fall on the assessee not as a person carrying on business but as owner of funds. This distinction, though fine, is very material as on it will depend whether deduction could be made under section 10(1) or not. " It was said that the loss in the present case fell on the assessee not as a person carrying on the business of banking but as owner of funds. That passage in terms refers to a money lender and does not deal with a public company carrying on banking business. In the case of a money lender the profits he made may form part of the private funds kept in his house which he may or may not invest in his business. It is indistinguishable from his other moneys. But in the case of a bank the deposits received by it form part of its circulating capital and at the time of the theft formed part of its stock in trade. In one case it cannot be posited that the amount robbed is part of the stock in trade of the trader till he invests it in his business; in the other it forms part of the stock in trade without depending on the intention of the banking company. There lies the distinction between the instant case and the illustration visualized by this Court. We have only suggested a distinction, but we are not expressing any definite opinion on the question whether the loss incurred in the case illustrated is or is not a trading loss. The correctness or otherwise of the said observation may fall to be considered when such a case directly arises for decision. 346 Before parting with this decision, it may be noticed that this Court agreed with the decisions in Venkatachalapathy lyer vs Commissioner of Income tax(1), Lord 's Dairy Farm Ltd. vs Commissioner of Income tax(2) , and Motipur Sugar Factory Ltd. vs Commissioner of Income tax( 3 ). The decision in Motipur Sugar Factory case(3), which was accepted by this Court to be correct, takes us a step further in the development of law. There, the assessee company was carrying on business in the manufacture of sugar and molasses out of sugarcane. It deputed an employee,in compliance with the statutory rules, with cash for disburse ment to sugarcane cultivators at the spot of purchase. The cash was robbed on the way. The Division Bench of the Patna High Court held that the loss of money was loss arising out of the business of the assessee and sprang from the statutory necessity of sending money to various purchasing centres for disbursement and, therefore, the assessee was entitled to deduct the loss in computing its taxable income under section 10(1) of the Act. It will be noticed that this is not a case of misappropriation by a servant of the company, but a case of loss to the company by reason of its cash being robbed from its servant. In that case, cash was entrusted to the employee under statutory rules. But there may be cases where such entrustment may be made by custom or practice. What is important to notice is that robbery of cash from the hands of an employee is held to be incidental to the business of the assessee. If that be so, why should a different principle be adopted if the loss was not caused by robbery from the hands of the employee on his way to a particular place in discharge of his duty, but it was a loss caused by dacoity from the premises of the bank itself. In one case, the employee carried cash for disbursement to sugarcane cultivators, and in the other, funds were lodged in the Bank with reasonable safeguards for disbursement of the same to its constituents. If the loss was incidental to the business in one case, it should equally be so in the other case. The judgment of the Special Bench of the Madras High Court in Ramaswami Chettiar vs The Commissioner of Income tax, Madras(4) supports the case of the Revenue. There, the loss was incurred by theft of money used in moneylending business and kept in the business premises. The Full Bench by majority held that the loss incurred thereby should not be allowed in computing the income tax, as the theft was committed by persons who were not at the time of commission employed as clerks or servants by the assessee. This judgment, (1) (3) (2) (4) Mad. 347 if we may say so with respect, takes a narrow view of the problem. Indeed in Motipur Sugar Factory case(1), which was approved by this Court, the theft was committed not by the employee of the company but by robbers. To that extent the correctness of the Madras decision is shaken. That apart the judgment of Anantakrishna Ayyar J., who recorded a dissent, contains a constructive criticism of the majority view. We prefer the view of Anantakrishna Ayyar J., to that of the majority. The decision of the High Court of Australia in Charles Moore and Co. (W. A.) Pvt. Ltd. vs Federal Commissioner of Taxa tion(2) throws considerable light on the subject. In that case the assessee was carrying on business of a departmental store and he banked the takings thereof daily. It was the practice every business morning for the cashier accompanied by another employee to take the previous day 's takings to the bank some two hundred yards away and pay them to the credit of the assessee. One day, while on their way to the bank the two employees were held up at gun point and robbed of a large amount which formed part of the receipts of the assessee for the previous day. The Court held that the loss was incurred in gaining or producing the assessable income of the year in question within the meaning of section 5 1 (I) of the Income Tax and Social Services Contribution Assessment Act, 1936 52 and was not a loss or outgoing of capital or of a capital nature, and was consequently a deduction from assessable income in such year. It was pointed out therein: "Banking the takings is a necessary part of the operations that are directed to the gaining or producing day by day of what will form at the end of the accounting period the assessable income. Without this, or some equivalent financial procedure, hitherto undevised, the replenishment of stock in trade and the payment of wages and other essential outgoings would stop and that would mean that the gaining or producing of the assessable income would be suspended. " Then the Court proceeded to state "The 'occasion of the loss ' in the present case was the pursued in banking the money . There Is no difficulty in understanding the view that involuntary outgoings and unforeseen or unavoidable losses should be allowed as deductions when they represent that kind of casualty, mischance or misfortune which is a natural or recognized incident of a particular trade or (1) (2) ; , 350. 348 business the profits of which are in question. These are characteristic incidents of the systematic exercise of a trade or the pursuit of a vocation.(1) Even if armed robbery of employees carrying money through the streets had become an anachronism which we no longer knew, these words would apply. For it would remain a risk to which of its very nature the procedure gives rise. But unfortunately it is still a familiar and recognized hazard and there could be little doubt that if it had been insured against the premium would have formed an allowable deduction. Phrases like the foregoing or the phrase 'incidental and relevant ' when used in relation to the allowability of losses as deductions do not refer to the frequency, expectedness or likelihood of their occurrence or the antecedent risk of their being incurred, but to their nature or character. What matters is their connection with the operations which more directly gain or produce the assessable income. " This decision laid down the following principles: (i) banking the takings was a necessary part of the operations of the business with which the court was dealing in that case; (ii) the loss to the business caused by robbery was incidental and relevant to that business as the procedure involved in carrying on of the business carried with it the risk of the cash being robbed on the way; (iii) the expressions "incidental" and "relevant" in relation to losses did not relate to the frequency of the happening of the risk but to their nature and character, that is to say, the loss must be connected with the operation to produce income. The judgment of the Supreme Court of Newzealand in Gold Band Services Limited vs Commissioner of Inland Revenue ( 2 ) applied the decision of the Australian High Court cited above to a situation which comes very near to our case. The appellant therein owned and operated a petrol service station which was kept open continuously. It was held up by an armed robber and a substantial sum of money was stolen. The Court held that the sum lost as a result of the robbery was a loss exclusively incurred in gaining or producing the assessable income of the appellant and was deductible from its ' gross income. Adverting to the argu ment very often advanced in courts based upon the robbery being committed in the premises and that committed on the way to a bank, Haslain J. observed (1) Rich J. in Commissioner of Taxation (N.S.W.) vs Ash at 277. (2) ,470. 349 .lm15 I can see no valid distinction to be drawn in principle between the robbery of trade receipts on the appellant 's premises at an hour before banking was possible (but intended to be banked at a time when the banks were open) and the robbery of the same money when in the custody of the employee on the way to the bank. In my opinion, the occasion for the loss of the present appellant was the operation of its business in the normal way, with the result that the cash stolen was on the premises at that particular time and that the possibility of such plunder constituted an attraction to a certain type of criminal, including both the safe blower and the armed burglar. " The present case is a stronger one, for the money was kept in the Bank as it was absolutely necessary to carry on the operation of the banking business. We may now summarize the legal position thus. Under section 1O (I ) of the Act the trading loss of a business is deductible for computing the profit earned by the business. But every loss is not so deductible unless it is incurred in carrying out the operation of the business and is incidental to the operation. Whether loss is incidental to the operation of a business is a question of fact to be decided on the facts of each case, having regard to the nature of the operations carried on and the nature of the risk involved in carrying them out. The degree of the risk or its frequency is not of much relevance but its nexus to the nature of the business is material. In the present case the respondent was carrying on the busi ness of banking. It is an integral part of the process of banking that sufficient moneys should be kept in the bank duly guarded to meet the demands of the constituents. The retention of the money in the bank is a part of the operation of banking. The retention of money in the bank premises carries with it the ordinary risk of its being subject of embezzlement, theft, dacoity or destruction by fire and such other things. Such risk of loss is incidental to the carrying on of the operations of the business of banking. In this view, we are clearly of the opinion that the loss incurred by dacoity in the present case is incidental to the carrying on of the business of banking. In the result, the order of the High Court is correct and the appeal fails and is dismissed with costs. Appeal dismissed.

The appellant was assessed to agricultural income tax by the Assistant Collector, Banaras, U.P. Act 3 of 1949, under which assessment was made, mentioned only the 'Collector ' a.,, competent to make assessment. The assessment made by the Assistant Collector was therefore set aside by the Collector. Subsequently the law was amended by U.P. Act 14 of 1956 to provide that the word 'Collector ' would include 'Assistant Collector ' and that the Collector could review his earlier orders quashing assessments on the ground of want of jurisdiction, if application for review were made to him by any of the parties within 90 days of the coming into force of the amendment. Such application having been filed in the appellant 's case, the Collector set aside his earlier orders quashing the assessment, and the Assistant Collector made a fresh assessment. The fresh assessment was challenged by the appellant by writ petition in the High Court and having failed there, The appellant came to the Supreme Court by special leave. It was contended on behalf of the appellant that the assessment made by virtue of the provisions of the amending Act was barred by limitation because the retrospective operation of the provisions relating to jurisdiction would not extend the time for making the assessment. HELD : The Collector 's order on the review application had the effect of restoring the earlier proceedings. No question of limitation could possibly arise, for those proceedings were initiated in time and must be deemed to have been pending throughout, and the fresh assessment was made in those very proceedings. [339 A B]. section C. Prashar vs Vasantsen, ; and Commissioner of Income tax, Bihar vs Lakhmir Singh, A.I.R. , held inapplicable.

N: Criminal Appeal No. 260 of 1972. Appeal by Special leave from the Judgment and Order dated the 22.3.1972 of the Gujarat High Court in Criminal Appeal No. 171 of 1971. R.L. Kohli, Ramesh Kohli, Naresh K. Sharma and Vineet Kumar for the Appellant. M. N. Phadke, H. R. Khanna and R. N. Poddar for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. After hearing counsel for the parties, by virtue of our Order dated October 4, 1983, we had allowed the appeal and acquitted the accused appellant. We now proceed to give the reasons for the said Order. The appellant was convicted by the High Court under section 408 read with section 109, Indian Penal Code in respect of criminal breach of 799 trust with regard to several items which have been detailed in the judgment of the High Court. The appellant was also convicted under sections 471 and 467 read with section 109 of the I.P.C. Under the first count (section 408) the appellant was sentenced to two years R.I. and a fine of Rs. 1000, in default of payment of fine, further six months R.I. Under the second count (section 471) he was sentenced to imprisonment for one year. The High Court further convicted the appellant under s.409 I.P.C. for having committed breach of trust in respect of certain oil engines and sentenced him to 3 years R.I. and a fine of Rs. 1000, in default of payment of fine, imprisonment for six months. Thus, the sum total of the sentences under various sections mentioned above comes to five years but as the sentences have been made to run concurrently, the total sentences would be three years apart from the fine. The learned Sessions Judge had acquitted the appellant holding that the charges framed against him were not proved but the High Court in an appeal by the State of Gujarat reversed the decision of the Sessions Judge and set aside the appellant 's acquittal and convicted him as aforementioned. The facts of the case have been detailed in the judgments of the High Court and the Sessions Judge with clarity and lucidity and need not be repeated all over again except so far as they are relevant for the purpose of deciding the appeal. There was an organisation known as 'Jasdan Taluka Sahkari Kharid Vechan Sangh Ltd. (hereinafter referred to as the 'Sangh ') which was like an autonomous cooperative society directly within the control and supervision of the Government. The appellant was the chairman of the Sangh and the other members of the Sangh consisted of two categories, viz., members nominated by the Registrar of Cooperative Societies and those elected by the Sangh itself. The managing Committee of the Sangh consisted of 8 members out of whom the appellant was the Chairman and A 2 was the Manager while the Tehsildar was the ex officio Member of the Sangh. Having received a number of complaints against the Sangh, the Registrar of Cooperative Societies ordered one V. B. Shah to act as special auditor and examine and audit the accounts of the Sangh for the year 1965 66. On the basis of the audit report, the Managing Committee was superseded and an administrator was appointed. Meanwhile the Sangh moved the High Court to obtain a stay order against the appointment of the 800 administrator as a result of which the appointment of the administrator was stayed for some time and the stay was vacated in July 1966. Subsequently, one M. K. Parikh was appointed an administrator. The police after usual investigation submitted chargesheet under section 120B, IPC against all the accused for entering into a conspiracy to commit criminal breach of trust. So far as the appellant is concerned he was never charged under the sections mentioned earlier. The charge of conspiracy failed and the Sessions Judge acquitted all the accused except A 3 who was convicted under s.408 to R.I. for two years and a fine of Rs.1000. In the instant case, we are only concerned with the appellant who was Chairman of the Managing Committee. Mr. Phadke, learned counsel for the respondent, has very fairly conceded that excepting 3 items he would not press the case of the prosecution against the appellant. These items are mentioned at page 154 of the paper book and may be extracted as follows: (1) Item about purchase of the truck; (2) Item about purchase of fertilisers; (3) Items of the amounts of Rs. 600 and 1100 received by accused No. 3 after the audit was done; (4) non finding of five oil engines by the administrator when he took over charge. So far as item No.(1) is concerned, the High Court itself found that there was absolutely no legal evidence to connect the appellant with the purchase of the truck and so far as misappropriation by the appellant in regard to this item is concerned that stands disproved. Coming to the other three items, viz., purchase of fertilisers, the amounts of Rs. 600 and Rs. 1100 and the missing of five oil engines, these formed the basis of the conviction of the appellant by the High Court. Mr. Phadke conceded that he would not press the case with respect to item No. (1) but would try to show that so far as items (2) to (4) are concerned the case has been fully proved against the appellant. 801 Having gone through the judgment of the High Court we find ourselves unable to accept the argument of Mr. Phadke. The counsel for the appellant rightly argued with great force and vehemence that taking the findings of the High Court ex facie no case of defalcation of Items (2) to (4) has been made out. In our opinion, the contention raised by the counsel for the appellant is well founded and must prevail. With due respect what the High Court seems to have missed is that in a case like this where there was serious defalcation of the properties of the Sangh, unless the prosecution proved that there was a close cohesion and collusion between all the accused which formed the subject matter of a conspiracy, it would be difficult to prove the dual charges particularly against the appellant (A 1)The charge of conspiracy having failed, the most material and integral part of the prosecution story against the appellant disappears. The only ground on the basis of which the High Court. has convicted him is that as he was the chairman of the Managing Committee, he must be held to be vicariously liable for any order given or misappropriation committed by the other accused. The High Court, however, has not referred to the concept of vicarious liability but the findings of the High Court seem to indicate that this was the central idea in the mind of the High Court for convicting the appellant. in a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions pertaining to items 2, 3 and 4. It is conceded by Mr Phadke that no such direct evidence is forthcoming and he tried to argue that as the appellant was chairman of the Sangh and used to sign papers and approve various tenders, even as a matter of routine he should have acted with care and caution and his negligence would be a positive proof of his intention to commit the offence. We are however unable to agree with this somewhat broad statement of the law. In the absence of a charge of conspiracy the mere fact that the appellant happened to be the Chairman of the Committee would not make him criminally liable in a vicarious sense for items 2 to 4. There is no evidence either direct or circumstantial to show that apart from approving the purchase of fertilisers he knew that the firms from which the fertilisers were purchased did not exist. Similar is the case with the other two items. Indeed, if the chairman was to be made liable then all members of the Committee, viz, Tehsildar and other nominated members, would be equally liable because all of them participated in the deliberations of the meetings of the Committee, a conclusion 802 which has not even been suggested by the prosecution. As chairman of the Sangh the appellant had to deal with a large variety of matters and it would not be humanly possible for him to analyse and go into the details of every small matter in order to find out whether there has been any criminal breach of trust. in fact, the hero of the entire show seems to be A 3 who had so stage managed the drama as to shield his guilt and bring the appellant in the forefront. But they by itself would not be conclusive evidence against the appellant. There is nothing to show that A 3 had either directly or indirectly informed the appellant regarding the illegal purchase of fertilisers or the missing of the five oil engines which came to light much later during the course of the audit. Far from proving the intention the prosecution has failed to prove that the appellant had any knowledge of defalcation of items 2 to 4, In fact, so far as item 3 is concerned, even Mr. Phadke conceded that there is no direct evidence to connect the appellant. In these circumstances, we do not find any justification for the High Court to have interfered with the order of acquittal passed by the Sessions Judge in favour of the appellant and having considered the fact and circumstances of the case, we are clearly of the opinion that the case against the appellant has not been proved beyond reasonable doubt and he was wrongly convicted by the High Court. Even putting the prosecution case at the highest it cannot be said that two views are not reasonably possible, For the reasons given above, we allow the appeal, set aside the conviction and sentences imposed by the High Court and acquit the appellant of the charges framed against him. The appellant will now be discharged from his bail bonds and need not surrender. N.V.K. Appeal allowed.

Disposing off the petition, making certain observations and expressing its inability to issue any directions, except awarding costs, the Court. ^ HELD: 1. Giving directions in a matter like this, where availability of resources has a material bearing, policy regarding priorities is involved, expertise is very much in issue is not prudent to issue any directions. Ordinarily the powers of the court to deal with a matter such as this, which prima facie appears to be wholly within the domain of the Executive must be examined. [723 H, 724 A] The Govt. have limitations, both of resources and capacity. Yet, it is hoped that the Government and the Administration would rise to the necessity of the occasion and take it as a challenge to improve this great public utility (Railways) in an effective way and with an adequate sense of urgency. If, necessary, it shall set up a high powered body to quickly handle the many faced problems standing in the way. [723 G H] 2. As the present case is a public interest litigation, the petitioner is entitled to consolidated costs of Rs. 5,000 recoverable from the Railway Ministry of the Union Government. [724 F G] 3. There is hardly any scope to doubt that the guarantees provided in Part III of the Constitution are Fundamental and it is the paramount obligation of the State to ensure availability of situations, circumstances, and environments in which every citizen can effectively exercise and enjoy these rights. The right to life has recently been held by the Supreme Court to connote not merely animal existence but to have a much wider meaning to include the finer graces of human civilization. If these rights of the citizens are to be ensured, 710 it is undoubtedly the obligation of the Union of India and its instrumentalities to improve the established means of communication in this country. [722 E G] 3.2. The Railways are a public utility service run on monopoly basis. Since it is a public utility, there is no justification to run it merely as a commercial venture with a view to making profits. It is not known if a monopoly based public utility should ever be a commercial venture geared to supply the general revenue of the State but there is no doubt that the common man 's mode of transport closely connected with the free play of his fundamental right should not be. [722 H, 723 A] 3.3. The Union Government should be free to collect the entire operational cost which would include the interest on the capital outlay out of the national exchequer. Small marginal profits cannot be ruled out. The massive operation will require a margin of adjustment and, therefore, marginal profits should be admissible. [723 B C] 3.4. On the other hand, it is of paramount importance that the services should be prompt. The quality of the service should improve. Travel comforts, facilities in running trains and quality of accommodation and availability thereof should be ensured. The Administration should remain always alive to the position that every bonafide passenger is a guest of the service. Ticketless travelling has to be totally wiped out. It is this class of passengers which is a menace to the system without any payment, these law breakers disturb the administration and genuine passengers. Stringent laws should be made and strictly enforced to free the Railways from this deep rooted evil Security both of the travelling public as also to the travelling citizens must be provided and this means that accidents have to be avoided, attack on the persons of the passengers and prying on their property has to stop. Scientific improvements made in other countries and suitable to the system in our country must be briskly adopted. The obligations cast by the Railways Act and the Rules under it must be complied with. [723 C F] 3.5. At the same time, no purpose is served by placing the blame at the doors of the Government of the day. All of us should have realism and condour Independence has been secured at great cost and sacrifice. It is every citizen 's obligation to maintain it and create an environment in which its fruits can be harvested and shared. [719 D E] 3.6 Freedom brings responsibility. There can be no rights without responsibilities. In our country unfortunately individual rights have received disproportionate emphasis without proper stress on corresponding social obligations and responsibilities. In a welfare State like ours the citizen is for ever encountering public officials at various levels, regulators and dispensers of social services and managers of State operated enterprises. It is of utmost importance that the encounters are as just and as free from arbitrariness as are the familiar encounters of the rights. What is, therefore, of paramount importance is that every citizen must get involved in the determined march to resurrect the society and subordinate his will and passion to the primordial necessity of order in 711 social life. If is only in a country of that order that the common man will have his voice heard. The dream can become a reality if every citizen becomes aware of his duty and before asking for enforcement of his right, volunteers to perform his obligation. [719 E F, 720 B C, D, 724 E]

vil Appeals Nos. 633 and 634 of 1964. Appeals from the judgement and order dated July 23 and 24, 1962 of the Bombay High Court in Income tax Reference No. 61 of 1961. A. V. Viswanatha Sastri, S.N. Vakil, T.A. Ramachandran, 1. B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant (in both the appeals). Niren De, Additional Solicitor General, R. Ganapathy lyer and R.N. Sachthey, for respondent (in both the appeals). A.V. Vishwanatha Sastri, M.N. Shroff and 1. N. Shroff, for the Intervener (in all the appeals). The Judgment of the Court was delivered by Subba Rao, J. The appellant, the Poona Electric Supply Co., Ltd., hereinafter called the Company, carried on the business of distribution of electricity in the city of Poona under a licence issued by the Government. Under the relevant provisions of the , (Act 54 of 1948), hereinafter called the Act, the Company 's "clear profit" in any year should not, as far as possible, exceed the amount of "reasonable return" as defined under the Act. The excess, if any, after making some deductions, the Company has to distribute to its consumers in the form of rebate. During the assessment years 1953 54 and 1954 55 the Company claimed deduction of two amounts of Rs. 42,148/ and Rs. 77,138/ for the said two years from its taxable income as they were credited to "Consumers Benefit Reserve Account". The Income tax Officer disallowed the claim; and on appeal the Appellate Assistant Commissioner agreed with the Income tax Officer. On a further appeal, the Income tax Appellate Tribunal accepted the contention of the appellant and allowed the deductions. At the instance of the Revenue, the Tribunal submitted the following question of law to the High Court of Judicature at Bombay for its opinion: "Whether the two sums of Rs. 42,1481 in the assessment year 1953 54 and Rs. 77,138/ in the assessment year 1954 55 were deductible in computing income, profits and gains from the assessee 's business assessable to tax. " 820 A Division Bench of the said High Court answered the question in the negative and against the appellant. The present appeals have been filed by the Company after obtaining the requisite certificate from the High Court. The argument of Mr. A.V. Viswanatha Sastri, learned counsel for the appellant, may be summarised thus: (1) There is a distinction between commercial profit of a company and "clear profit" under the Act one is arrived at on commercial principles and the other is regulated by the statute; the real profit of a company under section 10(1) of the Indian Income tax Act can be determined only after excluding the amount statutorily transferred to the "Consumers Benefit Reserve Account", for that amount represents a rebate to the customers of the excess amount collected from them. (2) As the reservation of a part of the said excess is a statutory condition subject to which the Company carries on its business, it is an expenditure wholly and exclusively incurred for the purpose of the Company 's business and, therefore, it is an allowance deductible under section 10(2)(xv) of the Income tax Act for computing the profit of the Appellant 's business. (3) The Company follows the mercantile system of accounting and, therefore, the amount of rebate so reserved is deductible for arriving at the commercial profit of the Company in the year when the statutory liability arises and not when the amount is actually paid; and in the present case the statutory liability for the said two amounts arose in the accounting years of 1952 and 1953. Learned Additional Solicitor General contended that (1) under the relevant provisions of the Act the transference of a part of the said excess to the consumers benefit reserve account would only amount to apportionment or distribution of the profit after it has been earned and, therefore, it is not a deductible item for ascertaining the profit of the Company under section 10(1) of the Income tax Act; (2) the said amounts could not be said to be an expenditure wholly and exclusively incurred for the purpose of the business, as the expenditure was not incurred either during the course of the business or for the purpose of earning the profits of the business, but was only apportioned or distributed from and out of the profits already earned. To appreciate the rival contentions and to arrive at a satisfactory solution it will be necessary to notice the relevant provisions of the Act and of the Income tax Act. The gist of the relevant provisions may be stated thus: No person can supply electric energy in any area unless he has obtained a licence from the State Government under section 3(1) of the (9 of 1910). The Act, i.e., The , provides for the rationalization of the production and supply of electricity and generally for taking 821 measures conducive to electrical development. One of its main objects is to prevent such licensees from charging unreasonable rates to the detriment of the consumers. Under section 57(1) of the Act the provisions of the Sixth Schedule and the table appended to the Seventh Schedule thereto are deemed to be incorporated in the licence of every licensee. Paragraph I of the Sixth Schedule imposes a duty on every such licensee to so adjust his rates for the sale of electricity by periodical revision that his clear profit in any year shall not, as far as possible, exceed the amount of "reasonable return". The expressions "clear profit" and "reasonable return" are defined. Under Para. II thereof if the clear profit of a licence in any year of account is in excess of the amount of reasonable return, one third of such excess, not exceeding 7 1/2% of the amount of reasonable return, shall be at the disposal of the undertaking; one half of the said excess shall either be distributed in the form of a proportional rebate on the amounts collected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the consumers in future in such manner as the State Government may direct. It is, therefore, clear from these provisions that for the purpose of rationalization of rates and keeping them under control the licence is directed to adjust his rates in such a way that his clear profit in any year shall not, as far as possible, exceed the amount of reasonable profit; but if an excess is collected, the licensee shall distribute half of that excess in the form of a proportional rebate to the consumers or carry forward the same in his accounts for future distribution to the consumers. Briefly stated, the scheme of the provisions is that a part of the excess collected is returned to the consumers by way of a rebate. The question is whether the amount so returned or returnable by the licensee to his consumers is deductible for ascertaining his taxable income from his business under section 10(1) or section 10(2)(xv) of the Income tax Act. Learned Additional Solicitor General took us though the various paragraphs of the Sixth Schedule to the Act and argued that under them the licensee 's clear profit was arrived at after all the deductions were made, including the appropriations for all taxes on income and profits and, therefore, the distribution of a part of the excess was only a distribution out of the profits. There is plausibility in this argument and at the first blush it appears to be attractive. But there is an obvious fallacy underlying the argument and that arises from the fact that the argument equates the expression "clear profit" with that of commercial profits. The object of the Act and that of the Sixth Schedule thereto, as aforesaid, is to statutorily rationalize and regulate the rates chargeable for the energy supplied in the interest of the public and for electrical development. The rules embodied in the Sixth Schedule to the Act are intended only to achieve that object. Under the said rules certain appropriations and certain deductions have to be made to. arrive at the clear profit; otherwise the items may be manipulated 822 to sustain a demand for abnormal rates. The rules have no concern with income tax; though for the purpose of arriving at the clear profit the taxes paid are also deductible. If this distinction is borne in mind, the problem presented is easily and readily solved. Under section 10 (1) of the Income tax Act, tax shall be payable by an assessee under the head "profits and gains of business" in respect of profits and gains of any business carried on by him. The said profits and gains are not profits regulated by any statute, but profits in a business computed on business principles. They are business profits and not statutory profits. They are real profits and not notional profits. The real profit of a businessman under section 10(1)of the Income tax Act cannot obviously include the amounts returned by him by way of rebate to the consumers under statutory compulsion. It is as if he received only from the consumers the original amount minus the amount he returned to them. In substance there cannot be any difference between a businessman collecting from his constituents a sum of Rs. Y in addition to Rs. X by mistake and returning Rs. Y to them and another businessman collecting Rs. X alone. The amount returned is not a part of the profits at all. In this context some of the decisions cited at the Bar may be of some help. In Pondicherry Railway Co., Ltd. vs Commissioner of Income tax, Madras(1). under an agreement with the French Colonial Government the railway company had to pay to the said Government half of its net profits calculated as provided thereunder. One of the questions that arose in the appeal was whether the appellant company was entitled to deduct the payments made under the agreement with the said Government as being expenditure incurred solely for the purpose of earning such profits within section 10(9) of the Income tax Act. In dealing with the question, Lord Macmillan observed: "A payment out of profits and conditional on profits being earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point, and the revenue is not concerned with the subsequent application of the profits. " The learned Lord, after citing with approval the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance .Society vs Styles(2), proceeded to observe: "The word 'profits ' I think is to be understood in its natural and proper sense. in a sense which no commercial man would misunderstand. But once an individual or (1) , 251 252, 252. (2) 823 a company has in that proper sense ascertained what are the profits of his business or his trade, the destination of those profits or the charge which has been made on those profits by previous agreement or otherwise is perfectly immaterial. The tax is payable upon the profits realized, and the meaning to my mind is rendered plain by the words 'payable out of profits. " The distinction between payment out of profits and a payment to earn profits is unexceptionable. The difficulty is to ascertain in each case whether a particular payment falls under one or other of the two categories. The statement in the aforesaid observations that a payment conditional on profits being earned cannot be a payment made to earn profits has been modified and explained by the Privy Council in The Indian Radio and Cable Communications Cornpony, Ltd., vs The Commissioner of Income tax, Bombay Presidency & AdenC). There, their Lordships were dealing with a case of a joint venture by two companies; and Lord Maugham pointed out thus: "It may be admitted that, as Mr. Latter contended, it is not universally true to say that a payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for the purpose of earning such profits. The typical exception is that of a payment to a director or a manager of a commission on the profits of a company. " To that extent the principle laid down by Lord Macmillan in the case of Pondicherry Railway Co.(2) has been modified. Lord Macmillan himself in a later decision in The Union Cold Storage Co. Ltd., vs Adamson (H. M. Inspector of Taxes)(3) explained his observations in the Pondicherry Railway Co. 's case (2). There, the appellant company leased lands and premises abroad under a deed reserving a particular rent per annum. The deed provided that if at the end of any financial year it was found that after providing for this rent the result of the Company 's operations was insufficient to pay both interest on its charges and debentures and dividends at fixed rates on its preference shares and also at least 10 per cent, on its ordinary shares, the rent for the year was to be abated to the extent of the deficiency, repayment of rent already paid being made if necessary. The question raised in that case was whether such repayments made were allowable as deductions in assessing the Company 's income to income tax. The House of Lords held that they were allowable deductions. When the observations of Lord Macmillan in the Pondicherry Railway Co. 's case(2) were pressed upon the House in support of the contention (1) , 277. (2) L.R. 58 A.C. 239. (3) , 331. 824 on behalf of the Revenue, Lord Macmillan explained his earlier observations thus: "When, therefore, in the passage referred to by the Attorney General in the Pondicherry case I said that "a payment out of profits and conditional on profits being earned cannot accurately be described as a payment made to earn profits", I was dealing with a case in which the obligation was, first of all, to ascertain the profits in a prescribed manner, after providing for all outlays incurred in earning them, and then to divide them. Here the question is whether or not a deduction for rent has to be made in ascertaining the profits, and the question is not one of the distribution of profits at all. " Though a contractual term of payment of rent operated after the profits were ascertained and on the insufficiency to meet certain obligations was discovered, the House of Lords did not find any difficulty in holding that the deductions for rent were made only for ascertaining the profits and not for distributing the same. The decision of the Court of Appeal in British Sugar Manufacturers, Ltd. vs Harris (Inspector of Taxes(1) is rather instructive. There, a company carrying on a manufacturing business agreed with two other companies to pay them a stated percentage of its "net profits" in consideration of their giving to the company the full benefit of their technical and financial knowledge and experience, and giving to the company and its directors advice to the best of their ability. The question arose whether in computing the profits of the company for the purpose of income tax, the company was entitled to deduct the sums so paid as being money wholly and exclusively laid out or expended for the purposes of the trade within Rule 3(a) of Cases I and II. Greene, M.R., pithily observed thus: "Once you realise that as a matter of construction the word "profits" may be used in one sense for one purpose and in another sense for another purpose, I think you have the real solution of the difficulties that have arisen in this case. " Applying that test, the Master of the Rolls held that: "In the present case there are two funds of so called profits which come into the picture. The first one is the fund which has to be ascertained for the purposes of calculating the 20 per cent . . . . Now when that amount has been ascertained, that fund has ceased to have any usefulness at all, and it then becomes necessary to ascertain what are the divisible profits, and for that purpose, to take another account, which not only would bring in depreciation, but would also take into (1) , 105, 106, 108 109. 829 account the sum that had been paid out to the Skoda works, and the Corporation upon the taking of the first account. " Romer, L.J., put the test in a different way when he said: "Is the payment that has to be made by the trader under the contract in question a mere division of profits with another party or is it a payment to the other party, the amount of which is ascertained by reference to the profits?" MacKinnon, L.J. stated much to the same effect thus: "The whole question in this, as in other cases, is whether this, which is an annual payment, is an annual payment to be taken into account in order to ascertain the profits, or is it an annual payment payable out of the profits after they have been ascertained? I think the true facts of this case are that it is of the former character. The difficulty in the case arises largely because of the necessary ambiguity in the word "prof its" and the fact that in this agreement "profits" as a word does appear; but "profits", as I think, quite clearly of a different description from the annual profits or gains with which one is concerned in assessing the income tax. " This decision accepts the principle that a contract or a statute may provide for the ascertainment of two profits for different purposes and the question to be decided in each case is whether the amount claimed as deduction is payable out of the real profits. The Judicial Committee again in Raja Bejoy Singh Dudhuria vs Commissioner of Income tax, Calcutta(1) emphasized the concept of real income in the context of payment of income tax. Lord Macmillan, speaking for the Board, after adverting to the Imperial System of income tax legislation, proceeded to observe: "The correlative of the obligation to return as income sums which are really charges upon the taxpayer 's income is the right to reimbursement of the tax on such charges. The Indian Income tax Act makes no similar provision for the deduction of tax at the source and the consequent reimbursement of the taxpayer in the case of such a charge as that to which the revenues of the appellant are subject . . . . . that the omission from the Indian Act of any such provision points rather to an intention to tax, in Lord Davey 's Phrase, only "the real income" of. the taxpayer, than to an intention to impose, without right of reimbursement, a tax on what is a charge upon his income." (1) L.R. (1933) 60 I.A. 196, 202. 826 The concept of "real income" is also expounded in the decision of the Bombay High Court in H.M. Kashiparekh & Ca. Ltd. vs Commissioner of Income tax, Bombay North (1). There, under the managing agency agreement the managing agent was under a duty to forgo up to one third of its commission where the profits of the managed company were not sufficient to pay a dividend of 6 per cent. The contention of the Revenue that such a surrender of the commission under the provisions mentioned in the agreement was not deductible for the purpose of income tax was negatived. The principle has been succinctly stated in the head note thus: "The principle of real income is not to be subordinated as to amount virtually to a negation of it when a surrender or concession or rebate in respect of managing agency commission is made, agreed to or given on grounds of commercial expediency, simply because it takes place some time after the dose of an accounting year. In examining any transaction and situation of this nature the court would have more regard to the reality and speciality of the situation rather than the purely theoretical or doctrinaire aspect of it. It will lay greater emphasis on the business aspect of the matter viewed as a whole when that can be done without disregarding statutory language. " Now let us look at two of the cases on which strong reliance is placed on behalf of the Revenue. In Mersey Docks and Harbour Board vs Lucas(3) the harbour board was empowered by Act of Parliament to levy dock dues to be applied in maintaining the concern and in paying interest on moneys borrowed; any surplus income remaining after meeting these charges was directed to be applied in forming a sinking fund to extinguish the debt incurred in the construction of the docks. It went to reduce the capital liability. The question was whether the sum carried to the sinking fund, and the surplus carried to the following year 's accounts, were "profits" within the meaning of the Income tax Acts. The House of Lords held that the surplus was profit assessable to the incometax. In this case the surplus income formed the sinking fund and was utilised to pay off the debts of the harbour board; therefore, the Court rightly held that the said amount was utilised by the board from and out of its profits and, therefore, the said surplus could not be an allowable deduction. The decision of the Queen 's Bench Division in Paddington Burial Board vs Commissioners of Inland Revenue(3) was also based on the same principle. Under a public Act of Parliament a burial ground was provided out of the poor rates, and fees were charged to persons using it; any (1) , 707. (2) (3) 827 surplus of income over expenditure was applied in aid of the poor rates as required by the Act. It was held that the surplus was a profit assessable to income tax. It will be seen that the burial ground was managed on behalf of the Parish of Paddington and the surplus was applied for the benefit of the parishners. In the words of Day, J., it was a business carried on for the benefit of the rate payers of the parish of Paddington. This case also, therefore, dealt with payments out of profits utilised for the benefit of those on whose behalf the business was conducted. In Young (H. M. Inspector of Taxes) vs Racecourse Betting Control Board(1) the question that arose was whether the Racecourse Betting Control Board was entitled in computing the profits of the trade of totalisatot operator for the years 1953 54 and 1954 55 to deduct certain payments. The Board would be entitled, under the appropriate statutes, to deduct payment of moneys wholly and exclusively laid out or expended for the purpose of trade. It was held in that case that the said payments were all voluntary payments and were not made for the purpose of the trade. This decision has no bearing on the question raised before us. The said decisions lead to the following results: Income tax is a tax on the real income, i.e., the profits arrived at on commercial principles subject to the provisions of the Income tax Act. The real profits can be ascertained only by making the permissible deductions. There is a clear cut distinction between deductions made for ascertaining the profits and distributions made out of profits. In a given case whether the outgoings fall in one or the other of the heads is a question of fact to be found on the relevant circumstances, having regard to business principles. Another distinction that shall be borne in mind is that between the real and the statutory profits, i.e., between the commercial profits and statutory profits. The latter are statutorily fixed for a specified purpose. If we bear in mind these two principles there will be no difficulty in answering the question raised. The appellant company is a commercial undertaking. It does business of the supply of electricity subject to the provisions of the Act. As a business concern its real profit has to be ascertained on the principles of commercial accountancy. As a licensee governed by the statute its clear profit is ascertained in terms of the statute and the schedule annexed thereto. The two profits are for different purposes one is for commercial and tax purposes and the other is for statutory purposes in order to maintain a reasonable level of rates. For the purposes of the Act, during the accounting years the assessee credited the said amounts to the "Consumers Benefit Reserve Account". They were part of the excess amount paid to it and reserved to be returned to the consumers. They did not form part of the asessee 's real profits. So, to arrive at the taxable income of the assessee from the business (1) (D)5SCI 14 828 under section 10(1) of the Act, the said amounts have to be deducted from its total income. In this view it is not necessary to express our opinion on the question whether the said amounts would be allowable deductions under section 10(2)(xv) of the Act. The next question is whether the amounts so reserved for future payment were deductible in computing the income, profits or gains from the assessee 's business for the assessment years 1953 54 and 1954 55. It is not disputed that the assessee adopts the mercantile system of accounting. The liability to return the amounts was incurred by the assessee during the relevant accounting years. This Court held in Calcutta Co. Ltd., vs Commissioner Income tax, West Bengal(1) that where an assessee maintained his accounts on mercantile basis, the accrued liability and the estimated expenditure which it would incur in discharging the same could be deducted from the income of the accounting year in which the said liability accrued. Indeed, this legal position was not contested on behalf of the Revenue. In the result we answer the question referred to the High Court in the affirmative and in favour of the assessee. The order of the High Court is set aside. The appeals are allowed with costs. Appeals allowed.

Under the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act 1958 (1 of 1959) a cess was levied on sugarcane and for this purpose a sugarcane factory was treated as a 'local area '.In the Diamond ' Sugar Mills case it was held by this Court that such a levy was not valid. Following this decision the Madhya Pradesh High Court struck down section 23, which was the charging section of the aforesaid Madhya Pradesh. Act No. 1 of 1959. There were Acts in several other States which suffered from the same infirmity and to meet the situation Parliament passed the (38 of 1961). The Act made valid, by section 3, all the assessments and collections made before its commencement under the various State Arts and laid down that all the provisions. of the State Acts as well as the relevant notifications, rules etc. made under the State Acts would be treated as part of section 3; further. the said section was to be deemed to have existed at all material times when the cess was imposed, assessed and collected under the State Acts. The, appellant, a sugar factory, was asked to pay the cess for the years 1959 60 and 1960 61. It however, challenged the levy in a writ petition before the High Court. The High Court having dismissed the petition, the. appellant came to this Court with certificate. The contentions urged on behalf of the appellant were : (1) What the validation of the Act had done was to attempt to cure the legislative incompetence of the State Legislatures by validating State Acts which were invalid on the ground of absence of legislative competence in the respective State Legislatures; (2) Parliament had passed the Act in question not for the purpose of levying a cess of its own, but for the purpose of enabling the respective states to retain the amounts which they had illegally collected. The Act was therefore a colourable piece of legislation; (3) The Act had not been passed for the purposes of the Union of India and the recoveries of cesses which were retrospectively authorised by it were not likely to go into the Consolidated Fund of India; (4) The sugarcane crushing season was between October 1, and June 30th. 'Me Cane Development Council which was constituted on August 26, 1960 was not in existence throughout the period covered by the demand for the year 1950 60. 'Me demand was a 'fee ' and it was illegal to recover such a wee for a period during which the council did not exist at all and could have rendered no service whatever. HELD:(i) In view of the decision of this Court in Diamond Sugar Mills it was obvious that the cess in question was outside the legislative competence of the States. This very conclusion led to the irresistible inference that Parliament would have legislative competence to deal with the subject matter in question, having regard to article 248 read with Entry 524 97 in List I of the Seventh Schedule to the Constitution. Thus the legislative competence of Parliament to levy a cess such as was imposed by section 3 of the (Central Act 38 of 1961) was not in doubt. Diamond Sugar Mills Ltd. & Anr. vs Slate of Uttar Pradesh & Anr. , referred to. (ii)When an Act passed by a State Legislature is invalid on the ground that the State Legislature did not have legislative competence to deal with the topics covered by it, then even Parliament cannot validate such an Act, because the effect of such attempted validation, in substance, would be to confer legislative competence on the State legislature in regard to a field or topic which, by the relevant provisions of the schedules to the Constitution, is outside its jurisdiction. Where a topic is not included within the relevant List dealing with the legislative competence of the Slate Legislatures, Parliament, by making a law cannot attempt to confer such legislative competence on the State Legislatures. [531 G] But section 3 of the impugned Act does not purport to validate the invalid State Statutes. What Parliament has done by enacting the said section is not to validate the invalid State statutes, but to make a law concerning the cess covered by the said Statutes and to provide that he said law shall come into operation retrospectively. Parliament knew that the relevant State Acts were invalid because the State Legislatures were not competent to enact them. Parliament also knew that it was fully competent to make an Act in respect of the subject matter covered by the said invalid State Statutes. Parliament however decided that rather than make elaborate and long provisions in respect of the recovery of cess, it would be more convenient to make a compendious provision such as is contained in section 3. The plain meaning of section 3 is that the material and relevant provisions of the State Act as well as the provisions of notifications, orders and rules issued or made thereunder are included in section 3 and shall be deemed to have been included at all material times in it. In other words what section 3 provides is that by its order and force the respective cesses will be deemed to have been recovered, because the provisions in relation to the recovery of the said cesses have been incorporated in the Act itself. The command under which the cesses would be deemed to have been recovered would, therefore, be the command of Parliament. [532 C H] (iii)Where a challenge to the validity of a legal enactment is made on the ground that it is a colourable piece of legislation, what has to be proved to the satisfaction of the court is that though the Act ostensibly is within the legislative competence of the legislature in question, in substance and in reality it covers field which is outside its legislative competence. In passing section 3 however Parliament exercised its undoubted legislative competence to provide for the recovery of the specific(] cesses and commissions in the respective State areas from the date and in the manner indicated by it. The Act could not therefore be attacked on the ground of being a colourable piece of legislation. [533 F H] K.C. Gajatpati Narayan Dea & Ors. vs State of Orissa, [1954] S.C.R.1 relied on. (iv)The validity of an Act must be judged in the light of the legislative competence of the legislature which passes the Act and may have to be examined in certain cases by reference to the question as to Whether fundamental right of citizens have been improperly contravened, or to other considerations which may be relevant in that behalf. But normally it would be inappropriate, indeed illegitimate, to hold an enquiry into the manner in which the funds raised by an Act would be dealt with when 525 the court is considering the question about the validity of the Act itself. Therefore it was impermissible to contend that the Act was invalid because the funds in question would not go into the Consolidated Fund of India. [535 E H] (v)If collections are made under statutory provisions which are invalid because they deal with a topic outside the legislative competence of the State Legislature, Parliament can in exercise of its undoubted legislative competence, pass a law retrospectively validating the said collections by converting their character from collections made tinder the State Statutes to that of collections made under its own statute operating retrospectively. To hold otherwise would be to cut down the width and amplitude of the legislative competence conferred on Parliament by article 248 read with Entry 97 in List I of the Seventh Schedule. [536 C E] (vi)The functions of the Cane Development Council as prescribed by section 6 of the Madhya Pradesh Act show that the Council is expected to render service to the mills like the appellant and so it can be safely assumed that the commission which was authorised to be recovered under section 21 of the Madha Pradesh Act is a 'fee '. The imposition of a fee is generally supported on the basis of quid pro quo. The Council was however constituted for the first time on August 26, 1960. In other words the Council was not in existence throughout the periods covered by the demand relating to the year 1959 60. It did not render any service at all during the said period. On the special facts of the case no amount could therefore be validly claimed by way of commission for the year 1959 60. [537 A B; 538 C D] H. H. Sudhindra Thirtha Swamiar vs Commissioner of Hindu Religious and Chtartible Endowments, Mysore, [1963] Supp. 2 S.C.R., referred to.

Special Leave Petition (Civil) No. 3486 of 1986. From the Judgment and Order dated 6.1.1986 of the Madhya Pradesh High Court in Misc. Petition No. 2577 of 1984. K.K. Venugopal, G.L. Sanghi, M.N. Krishnamani and Diwan Balak Ram for the Petitioner. Rameshwar Nath for the Respondents. The order of the Court was delivered by VENKATARAMIAH, J. The petitioner in the above petition filed under Article 136 of the Constitution has prayed for special leave to appeal against the judgment of the High Court of Madhya Pradesh in Miscellaneous Petition No. 2577 of 1984 dated 6.1.1986. In the petition filed under Article 226 of the Constitution before the High Court the petitioner had questioned the validity of an advertisement issued by the Madhya Pradesh Road Transport Corporation (hereinafter referred to as 'the Corporation ') inviting tenders from owners of motor vehicles for plying their vehicles on the routes mentioned therein as nominees of the Corporation under the permits issued in favour of the Corporation under the provisions of the (hereinafter referred to as 'the Act '). It is alleged that the petitioner who was an unemployed graduate entered into an agreement with the Corporation to ply his bus as a nominee on the route Gwalior to Chinor via Dabra for a period of five years ending on December 23, 1982. The route in question came within scheme No. 38 published under section 68 C of the Act. The permit of the Corporation was to expire on 23.12.1982. Therefore the Corporation applied for renewal of its permit but since it took time for finalisation, tempo rary permits were issued from time to time. The petitioner was permitted to ply his 372 bus on the monthly basis during that period. Under the agreement the petitioner was liable to pay periodically certain amount to the Corporation as nomination fees or supervision charges and additional taxes. But on 12.8.1984, as stated earlier, tenders were invited by the Corporation from private operators for the grant of the privilege of running buses as stage carriages as the nominees of the Corporation. Aggrieved by the said advertisement the peti tioner filed the writ petition, referred to above, in the High Court. The petitioner contended that even though he had been regularly paying the nomination fees and taxes, yet the Corporation in order to earn more money by way of nomination fees had invited tenders from others with a stipulation that tenders of those giving the highest offers by way of nomina tion fees would be accepted and they would be appointed nominees of the Corporation to ply the stage carriages. The petitioner further contended that the decision to invite tenders was arbitrary and illegal. In the Writ Petition he obtained an interim order dated 11.9.1984 under which he was allowed to operate his motor vehicle as a stage carriage on the same terms and conditions as the nominee of the CorpOra tion. The petitioner continued to ply his motor vehicle on the route in question on the basis of the temporary permits issued in the name of the Corporation till 31.5.1985. Since no temporary permit was obtained by the Corporation thereaf ter the petitioner could not ply his motor vehicle in ques tion. In the meanwhile under the orders passed by this Court in Special Leave Petition Nos. 941, 4667 to 4669, and 7115 7117 of 1985 dated July 22, 1985 filed by some others, the petitioners therein who were similarly situated were allowed to ply their motor vehicles on some other routes as the nominees of the Corporation for a period of five years. The above order, it is alleged, was passed on a concession made bY the Corporation. The said order is not supported by reasons. The petitioner relying upon the above order con tended before the High Court in the writ petition filed by him that he should also be permitted to ply his motor vehi cle as a nominee of the Corporation for a further period of five years. The High Court declined to grant the request of the petitioner since by then the scheme No. 38 had been approved and had come into effect from June 1, 1985 and dismissed the writ petition on January 6, 1986. Aggrieved by the order of the High Court the petitioner has filed this petition. It is contended on behalf of the petitioner that since the petitioner had been permitted to operate his motor vehicle as a stage carriage service as a nominee of the Corporation under a programme called 'Half a Million Job Programme ' initiated by the Government of India which was being implemented by the State of Madhya Pradesh he could not be denied the privilege of continuing to operate his motor vehicle on the notified route in question. Reliance is also placed by the learned counsel for the petitioner on the order passed by this Court on July 22, 1985 in some of the special leave petitions referred to above permitting the petitioners therein to operate their motor 373 vehicles as the nominees of the Corporation for a further period of five years. After the disposal of the special leave petitions referred to above on July 22, 1985 by this Court, on October 17, 1985 a Constitution Bench of this Court delivered its judgment in Adarsh Travels Bus Service & Anr., vs State of U. P. & Others. ; In that case the Constitution Bench held that reading sections 68~C, 68 D(3) and 68 FF of the Act together it was clear that once a scheme was published under section 68 D of the Act in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other per sons or otherwise, no person other than the State Transport Undertaking could operate a stage carriage on the notified route or in the notified area except as provided in the scheme itself. Admittedly, the approved scheme published under section 68 D of the Act has come into operation in respect of the route in question excluding the operation of stage carriages by all others. Section 68 FF of the Act states that where an approved scheme has been published under sub section (3) of section 68 D of the Act in respect of any notified area or notified route the State Transport or the Regional Transport Authority, as the case may be, shall not grant any permit except in accordance with the provisions of the scheme. It further provides that where no application for a permit has been made by the State Transport Undertaking in respect of any notified area or notified route in pursuance of an approved scheme, the State Transport Authority or the Re gional Transport Authority, as the case may be, may grant temporary permits to any person in respect of such notified area or notified route subject to the condition that such permit shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route. It is not, however, permissible under the Act for the Corporation to obtain a permit under Chapter IV A of the Act and to allow a private operator as its nominee to oper ate under that permit his motor vehicle as a stage carriage on the notified route. It cannot by granting such permission collect any money either as nomination fees or as royalty 'or supervision charges. Section 59 of the Act which lays down the general conditions attached to all permits provides that save as provided in section 61 of the Act, a permit shall not be transferable from one person to another except with the permission of the Transport Authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit. Section 61 of the Act only deals with the question of transfer of the permit on the death of the holder of the permit in favour of his successor. Section 42 of the Act provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place whether or not such vehicle is actually carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State TranSport Authority or the Commission 374 authorising the use of the vehicle in that place in the manner in which the vehicle is being used. Section 42 and section 59 of the Act which are in Chapter IV of the Act apply to permits issued under Chapter IV A of the Act also since in Chapter IV A of the Act we do not find any provi sion which is inconsistent with these two sections. Section 68 B of the Act only provides that Chapter IV A of the Act and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of the Act or any Other law for the time being in force or in any instrument having effect by virtue of any such law. Even though the Corporation is established by the State Government under the and the State Government has by an executive order approved the action of the Corporation to allow private operators to operate their vehicles under the permits issued to the Corporation as the nominees of the Corporation, the Corporation cannot in law allow its nominees to exploit the permits by running their motor vehicles against payment of some amount to the Corporation since there is no statutory provision authorising the grant of such permission. It would have been different if there had been a law corresponding to the Uttar Pradesh Motor Vehicles Special Provisions Act (27 of 1976) under which the competent authority can authorise such operation subject to the conditions specified therein (See Sumer Chand Sharma and Another vs State of U.P. and Another, ; The provisions of the Act and in particular sections 42 and 59 clearly debar all holders of permits including the Corporation from indulging in ' such unauthorised trafficking in permits. The agreement entered into by the petitioner with the Corporation is clearly contrary to the Act and cannot, therefore, be enforced. In the circumstances, the petitioner is not entitled to the issue of a writ in the nature of mandamus to the Corporation to allow him to operate his motor vehicle as a stage car riage under the permit obtained by the Corporation as its nominee. It follows that the advertisement issued by the Corporation is equally ineffective. The position would not be different even where the permit is issued in favour of the Corporation under Chapter IV of the Act. If the Corpora tion cannot run its vehicle under a permit issued to it, it must surrender it so that the Regional Transport Authority may grant the permit to some other deserving applicant or it must transfer it to some body else with the permission of the Regional Transport Authority granted under section 59 of the Act. It cannot however allow the permit to be used by somebody else to run his vehicle either for consideration or without consideration. If it does so it would be exercising the power of the Regional Transport Authority. The Corpora tion cannot thus indirectly clutch at the jurisdiction of the Regional Transport Authority. It is hoped that the Corporation will desist from entering into such agreements with third parties, which are wholly illegal and from con tinuing to allow them to run their vehicles as its nominees. The concerned Regional Transport Authority should immediate ly take action to stop such illegal operation of transport 375 vehicles on all routes, both notified and non notified routes. It is seen that in one of the documents filed before the High Court it was asserted that the Corporation could allow private operators to operate their vehicles in the name of the Corporation under section 19(2)(h) of the Road Transport Corporation Act, 1950. That provision only authorises the Corporation to purchase or otherwise secure by agreement vehicles owned or possessed by the owner of any other under taking for use thereof by the Corporation for the purposes of its undertaking. It does not however authorise the Corpo ration to permit another person to run his vehicle on his own under a permit issued to the Corporation by paying some amount to the Corporation. Hence no reliance can be placed on the above provision. It was lastly contended on behalf of the petitioner that since the Corporation was not in a position to operate its motor vehicles on the notified routes in accordance with the approved scheme, the scheme itself is liable to be quashed. Since the said prayer is not made in the writ petition, we cannot consider the said question It is open to the peti tioner if he is so advised to approach the High Court for appropriate relief in this regard. We may, however, record here that in the counter affidavit filed before this Court it is stated that the Corporation is already operating its own motor vehicles on the route in question. The Special Leave Petition is, however, dismissed. P.S.S. Petition dismissed.

Section 68 FF of the prohibits grant of permit in respect of notified area or notified route by State Transport Authority or the Regional Transport Authority except in accordance with the scheme published under subs. (3) of section 68 D but provides for grant of tempo rary permits in cases where no application for a permit has been made by the State Transport Undertaking in respect of such notified area or route. Section 59 bars transfer of permits from one person to another except with the permis sion of the concerned Transport Authority. Section 42 pro hibits the owners of transport vehicles from plying them in public places except in accordance with the conditions of the permit. Under an agreement entered into with the respondent Corporation the petitioner was permitted to PlY his bus on a specified route as a nominee of the former for a period of five years ending on December 23, 1982. Thereafter the respondent was issued temporary permits and the petitioner was permitted by it to ply his motor vehicle on monthly basis. The route in question had by that been brought within a scheme published under section 68 C of the Act. The respondent through an advertisement dated August 12, 1984 invited tenders from private operators for the grant of privilege of running buses as stage carriages as its nomi nees. Aggrieved by the said advertisement the petitioner filed a writ petition in the High Court assailing the deci sion to invite tenders as arbitrary and illegal, and for a writ in the nature of mandamns directing the respondent Corporation to allow him to ply his motor vehicle as its nominee for a further period of five years. Under an interim order of the Court he continued to ply his bus as a stage carriage till May 31, 1985. Subsequently, the High Court dismissed the petition since the scheme 370 published under section 68 C of the Act had been approved and brought into effect from June 1, 1985. Dismissing the petition for special leave, the Court, HELD: 1.1 It is not permissible under the for a State Transport Undertaking to obtain a permit under Chapter IV A and to allow a private operator as its nominee to operate under that permit his motor vehicle as a stage carriage on the notified route. It cannot by granting such permission collect any money either as nomination fees or as royalty or supervision charges. Section 42 and 59 of the Act which equally apply to permits issued under Chapter IV A, debar all holders of permits, including the State Transport Undertakings from indulging in such unauthorised trafficking in permits. [373E, 374A, D] 1.2 The petitioner was not, therefore, entitled to the issue of a writ in the nature of mandamus to the respondent Corporation to allow him to operate his ' motor vehicle as a stage carriage under the permit obtained by the latter, as its nominee. The agreement entered into by the petitioner with the respondent was clearly contrary to the Act and could not be enforced. The advertisement issued by the respondent was equally ineffective. [374E] 2. If the respondent Corporation cannot run its vehicle under a permit issued to it, it must surrender it so that the Regional Transport Authority may grant the permit to some other deserving applicant or it must transfer it to somebody else with the permission of the Regional Transport Authority granted under s.59 of the Act. It cannot allow the permit to be used by others either for consideration or without consideration. If it does so it would be exercising the power of the Regional Transport Authority. The Corpora tioncannot thus indirectly clutch at the jurisdiction of the Regional Transport Authority. [374F] 3.1 Even though the Corporation was established by the State Government under the and the State Government had by an executive order approved the action of the Corporation to allow private operators to operate their vehicles under the permits issued to the Corporation, the Corporation could not in law allow its nominees to exploit the permits in such manner. [374B] 3.2 Section 19(2)(h) of the Road Transport Corporation Act only authorises the Corporation to purchase or otherwise secure by agreement vehicles owned or possessed by the owner of any other undertaking for use thereof for the purpose of its undertaking. It does not authorise the 371 Corporation to permit another person to run his vehicle on his own under a permit issued to the Corporation by paying some amount to the Corporation. [375B] 3.3 It would have been different if there had been a law corresponding to the Uttar Pradesh Motor Vehicles Special Provisions Act (27 of 1976) under which the competent au thority can authorise such operation subject to the condi tions specified therein. [374C] Adarsh Travels Bus Service & Ant., vs State of U.P. & Ors., ; ; Sumer Chand Sharma & Anr. vs State of U.P. & Anr. ; , referred to.

ivil Appeal No. 2942 of 1989. From the Judgment and Order dated 30.11. 1987 of the Calcutta Central Administrative Tribunal Court in T.A. No. 452 of 1987/C.O. 6078 W. of 1985. 398 G. Ramaswamy, Additional Solicitor General, T.C. Sharma and C.V. Subba Rao for the Appellants. Girish Chandra for the Respondents. The following Order of the Court was delivered: ORDER Leave granted. This appeal is directed against the order of the Central Administrative Tribunal, Calcutta, dated November 30, 1987. The respondent was posted as Public Relations Officer in the Regional Passport Office, Calcutta. He was transferred from Calcutta to Jaipur under the order dated 14.3.1985, and he was relieved of his duty from Regional Passport Office, Calcutta w.e.f. 15.3.1985 with the direction to report for duty at Jaipur. The respondent instead of joining at Jaipur filed a writ petition before the Calcutta High Court and obtained interim injunction. Later on contempt proceedings were initiated by the respondent against the appellants and the High Court passed an order dated 11.10.1985 directing the appellants to allow the respondent to join at Calcutta office and to pay all arrears of salary to him. A number of orders were passed by the High Court in respondent 's favour but all those orders have been set aside by this Court in Civil Appeals arising out of Special Leave Petitions Nos. 6835 to 6837 of 1986. The respondent 's writ petition pending before the Calcutta High Court was subsequently transferred to the Central Administrative Tribunal, Calcutta Bench. The Tribunal by its order dated November 30, 1987 disposed of the writ petition. The Tribunal held that the order of transfer was not mala fide or unfair, and there was no ground for interfering with the transfer order. After re cording that finding the Tribunal directed the appellants to pay all arrears of salary with allowances to the respondent with a further direction that no release order should be issued to the respondent unless all his emoluments are paid to him. After hearing learned counsel for the parties we find that the Tribunal acted in excess of its jurisdiction in issuing impugned direction. The Tribunal recorded positive findings that the transfer order was legal and valid and it was not vitiated by any unfairness, or mala fide, thereupon it should have dismissed the writ petition. It had no 399 jurisdiction to issue further directions regarding the release order and the payment of emoluments. The Tribunal lost sight of the fact that the respondent had already been released from the Calcutta office w.e.f. 15.3. 198S, there fore, there was no question of issuing any fresh release order. We accordingly allow the appeal and set aside the impugned directions of the Tribunal. There will be no order as to costs. P.S.S. Appeal allowed.

The Bhopal Gas Leak Tragedy that occurred at midnight of 2nd December, 1984, by the escape of deadly chemical fumes from the appellant 's factory was a great industrial disaster and it took an immediate toil of 2600 human lives and left tens of thousands of innocent citizens of Bhopal physically affected in various ways. As per the figures furnished by the Union of India in its amended plaint a total number of 2,660 persons suffered agonising and excruciating deaths between 30,000 to 40,000 persons sustained serious injuries as a result of the said disaster. Legal proceedings for the recovery of compensation for the victims were initiated against the multi national compa ny first in the U.S. Courts and later in Distt. Court at Bhopal in Suit No. 113 of 1986. The present appeals concern with the order dated 4th April, 1988 passed by the Madhya Pradesh High Court whereby it modified the interlocutory order dated 17.12.1987 made by the Distt. Judge and granted interim compensation of Rs.250 crores. Both the Union of India and the Union Carbide Corporation have appealed to this Court against that order. The Court by its order dated the 14th February, 1989 made in these appeals directed that there shall be an over all settlement of the claims in the suit for 470 million U.S. Dollars and termination of all civil and criminal proceedings. On May 4, 1989 the Court pronounced its reasons for its aforesaid order dated 14.2.89thus: The Statement of the reasons is not made with any sense of finality as to the infallibility of the decision; but with an open mind to be able to appreciate any tenable and compelling legal or factual infirmities that may be brought out, calling for remedy in review under Article 137 of the Constitution. [132C D] 129 The basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief. Con siderations of excellence and niceties of legal principles were greatly over shadowed by the pressing problems of very survival for a large number of victims. [133A, C] The instant case is one where damages are sought on behalf of the victims of a mass disaster, and having regard to the complexities and the legal question involved, any person with an unbiased vision would not miss the time consuming prospect for the course of the litigation in its sojourn through the various courts, both in India and later in United States. This Court considered it a compelling duty. both judicial and humane, to secure immediate relief to the victims. In doing so, the Court did not enter upon any forbidden ground. What this Court did was in continua tion of what had already been initiated. [133E F, H; 134A] The range of choice for the Court in regard to the figures was, therefore, between the maximum of 426 million U.S. Dollars offered by Shri Nariman and the minimum of 500 million U.S. Dollars suggested by the Attorney General. [134F G] Having regard to all the circumstances including the prospect of delays inherent in the judicial process in India and thereafter in the matter of domestication of the decree in the United States for the purpose of execution, the Court directed that 470 million U.S. Dollars which upon immediate payment and with interest over a reasonable period, pending actual distribution amongst the claimants, would aggregate very nearly to 500 million U.S. Dollars or its rupee equiva lent of approximately Rs.750 crores which the Attorney General had suggested. be made the basis of the Settlement. [134G H; 135A B] The Settlement proposals were considered on the premises that the Government had the exclusive statutory authority to represent and act on behalf of the victims and neither counsel had any reservation as to this. The order was also made on the premises that the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Act 1985 was a valid law. [135B C] There might be different opinions on the interpretation of laws or on questions of policy or even on what may be considered wise or unwise; but when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. [140B C] The compulsions of the need for immediate relief to tens of 130 thousands of suffering victims could not wait till these questions, vital though they be, are resolved in due course of judicial proceedings. [142D E] A settlement has been recorded upon material and in circumstances which persuaded the Court that it was a just settlement. This is not to say that this Court will shut out any important material and any compelling circumstances which might impose a duty on it to exercise the powers of review. Like all other human institutions, this Court is human and fallible. What appears to the Court to be just and reasonable in that particular context and setting, need not necessarily appear to others in the same day. Which view is right, in the ultimate analysis, is to be judged by what it does to relieve the undeserved suffering of thousands of innocent citizens of this country. [142F G] Decisions of courts cannot be reacted or altered or determined by agitational pressures. If a decision is wrong, the process of correction must be in a manner recognised by law. All of those who invoke the corrective processes in accordance with law shall be heard and the court will do what the law and the course of justice requires. The matter concerns the interests of a large number of victims of a mass disaster. The Court directed the settlement with the earnest hope that it would do hem good and bring them imme diate relief, for, tomorrow might be too ate for many of them. But the case equally concerns the credibility of, and the public confidence in, the judicial process. [143B, D E] Those who trust this Court will not have cause for despair. [143F] M.C. Mehta vs Union of India, AIR 1987 SC 1(186; Theo ries of Compensation, R.E. Goodin: Oxford journal of Legal Studies, 1989 p.57 and Wallace Mendelson. Supreme Court Statecraft The Rule of Law and men, referred to.

minal Appeal No. 171 of 1959. Appeal by special leave from the judgment and order dated August 3, 1959, of the Allahabad High Court in Criminal Revision No. 1080 of 1959. 0. P. Rana and A. 0. Ratanaparkhi, for the appellant. G. C. Mathur and C. P. Lal, for The dent. March 26. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. One Ram Narain was ' ordered by the High Court of Allahabad, on June 9, 1958, to furnish a personal bond for a lakh of rupees and three sureties, two in the sum of Rs. 40,000/ each and one in the sum of Rs. 20,0001in respect of the case against him for having committed. criminal breach of trust with respect, to the funds of the Pikaura Co operative Society He 57 was to furnish the personal bond and the sureties within three weeks from the date of the order. It was further ordered: "The applicant should furnish the personal bond and sureties as 'directed above within three weeks from today and during that period he will not be arrested. If he does not furnish the bonds and sureties within this period he will be liable to be re arrested and detained till the necessary bonds and sureties are furnished. " It may be mentioned that Ram Narain had previously furnished a personal bond and sureties in connection with the embezzlement alleged to have been committed by him and that the necessity for a fresh order for furnishing personal bond and sureties arose on account of the police submitting more than one charge sheet with respect to the amount embezzled and it was felt that the original security furnished might not be, effective. On June 26, 1958, Ram Narain executed a personal bond for Rs. 1,00,000/ and offered,the required sureties. Kashi stood surety for Rs. 40,000/ , Safir Hussain for Rs. 40,000/ and Smt. Sona for Rs. 20,000/ respectively. The surety bond by Safir Hussain was not duly verified as he was in hospital at that time, but when it was put up to Safir Hussain for verification on July 12, 1958 be refused to verify it. Prior to this, on July 7, 1958, Safir Hussain filed an application before the Magistrate praying that his surety bonds in connection with the embezzlement of Rs. 40,000/ and Rs. 80,000/ be cancelled. Ram Narain was present in Court that day. No particular order was passed on this application of Safir Hussain. On July 93 1958, an application on behalf of Ram Narain was filed stating that Bekaru 's surety 58 be accepted in place of Safir Hussain 's surety. Bekaru filed the surety. bond offering himself to stand surety for Re. 40,000/ for Ram Narain 's appearance in Court. He was identified by Sri Ahmad Husain, Vakil, who certified that Bekaru Singh possessed sufficient property to stand surety for Rs. 40,000/ . The Magistrate ordered for the verification from the Tehail and on receipt of the report from the Tehsil, accepted the bond on August 20, 1958. The Tehsil report, however, indicated that the house mentioned in the surety bond and alleged to be worth Rim. 60,000/ was estimated to be worth Rs. 16,075/ . The police charge. ,sheet in the case appears to have reached the Court on August 20, 1958, when summons for the appearance of Ram Narain was ordered to be issued for September 1, 1958. The summons was not served. When Ram Narain did not appear on September 1, 1958, September 9, and September 23, the Court, on September 24, ordered action under sections 87 and 88 Cr. P.C. against him and the issue of notices to the sureties to produce him in Court. When he did not appear in Court on October 29, the Court forfeited the personal bond executed by Ram Narain and the bail bonds executed by the sureties and ordered issue of notice to the sureties to pay the penalty or show cause a.,) to why the amount be not recovered from them. Bekaru objected to the forfeiture of his surety bond. On April 20, 1959, the objection was disallowed and the learned judicial officer ordered that the amount of Rs. 40,000/ be recovered from his movable. property through attachment and sale. Bekaru appealed but his appeal was dismissed by the learned Sessions Judge. His revision application to the High Court was also dismissed. He has preferred this appeal by special leave. The main contention for the appellant is that the learned Magistrate should pot have accepted 59 Bekaru Singh 's surety bond without first taking action contemplated by sub sections (2) and (3) of section 502, Cr. P.C. Section 502 reads: "(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate e to discharge the bond, either wholly of so far as relates to the applicants. (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. (3 ) On the appearance of such person pursuant to the Warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicant, and shall call upon such person to find other sufficient, sureties, and, if he fails to do so, may commit him to custody. " It is urged that the Magistrate had to issue a warrant for the arrest of Ram Narain when Safir Hussain had presented his application for the discharge of his surety bond and that when Ram Narain would have appeared before the Court in execution of that warrant, the Magistrate had to first discharge Safir Hussain 's surety bond and only then could have called upon Ram Narain to furnish other surety. The Magistrate took no such stop and therefore could not have legally accepted the surety bond offered by Bekaru on July 9,1958. We do not agree with this contention. These provisions Of section 502 are meant for the continuity of the surety bond on the basis of which an accused has been released on bail till such time that the accused is before the Court and for taking further action in case the accused desires to offer another security in place of the one who is to be discharged. They are not conditions precedent for the acceptance of 60 a fresh surety in place of the earlier one. In the circumstances of the present case, there was no occasion to issue a warrant for the arrest of Ram Narain on Safir Hussain 's applying for the discharge of his surety bond We do not Know in what circumstances no particular order was passed on July 7, 1958 on the application of Safir Hussain. Ram Narain who was present in Court that day, may have intimated to the Court that he would offer a fresh surety on July 9. Anyway a fresh surety was offered on that day viz; July 9. Bekaru stood surety. An application on behalf of Ram Narain was presented praying for the acceptance. of Bekaru 's surety bond in place of Safir Hussain 'section In accepting Bekaru 's surety bond the Court committed no wrong. It was interested in getting a fresh surety for letting Ram Narain continue on bail. Bakaru offered the surety bond. His competence to stand surety for Rs. 40,000/. was certified by a Vakil, Safir Hussain 's bond therefore stood cancelled and Bekaru 's took its place. We do not therefore consider that there was any incompetency in the Magistrate 's accepting Bekaru 's surety bond in place of Safir Hussain 'section It is true that Bekaru 's surety bond was formally accepted on August 20, 1958, but that does not matter. Sub section (1) of section 499, Cr. P. C. provides that before any person is released on bail bond must be executed by such person and bonds be also executed by sureties for the attendance of that person in Court. Sub section (3) of s.499 is "(3) For the purpose of determining whether the sureties are sufficient, the Court way, if it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further enquiry as it deems necessary. " When Bekaru furnished the surety bond he also filed 61 an affidavit stating therein that the house mentioned in the surety bond was worth over Rs. 40,000/ Sri Ahmed Husain Vakil, certified that Bekaru possessed sufficient property to stand surety for its. 40,000/ In the circumstances, the Magistrate could accept Bekaru 's surety bond. Of course the Magistrate could make further enquiry as well and it was for the purpose of further enquiry that he ordered verification from the Tehsil. Bekaru 's bond, in our opinion, was accepted on July 9, subject to further orders on the receipt of the Tehsil report. Further, Ram Narain 's continuing on bail is justified by the provisions of 8. 500 Cr. P. C., once Bekaru 's surety bond had been filed. Its sub section (1) provides that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released. This contemplates that the accused is to be released on the execution of the bonds which should be accepted on their face value in the first instance. Section 501, Cr. P. C. provides for the issue of a warrant of arrest of the person so released on bail if it is subsequently found that through mistake, fraud or otherwise, insufficient sureties bad been accepted, or if they afterwards became insufficient. We are therefore of opinion that formal acceptance of Bekaru 's surety bond on August 20, 1958 by the Magistrate does not in any way affect Bekaru 's liability on that bond from July 9, 1958. Any way, he was liable on that bond for the non appearance of Ram Narain on a date subsequent to August 20, 1958. It may be mentioned that it was urged up to the appeal stage that the surety bond was accepted on the 20th of August 1958 after the Magistrate had known of the absconding of Ram Narain. The Courts found against this allegation as there was no evidence in support of it. Another point urged is that the surety bond executed by Bekaru Singh did not have on the other 62 side the personal bond executed by Ram Narain and that in the absence of a personal bond by Ram Narain, the surety bond executed by Bekaru could not be legally accepted. Reliance is placed on the case reported as Brahma Nand vs Emperor (1) and a few other cases expressing the same view. These cases are distinguishable on facts. In Brahma Nand 's case. (1) the accused himself had not executed any bond and therefore it was held that the surety bonds could not be forfeited. In the present case Ram Narain executed bond on June 26, 1958. Kasbi, one of the sureties, executed the surety bond printed at the back of the bond executed by Ram Narain. Ram Narain had already bond himself to pay Rs. 1,00,000/ in case he failed to appear in Court when required. Other sureties bond themselves to pay the various amounts in case Ram Narain did not appear. Their surety bond are good by themselves. Bekaru 's surety bond is there fore as effective and legal as Kashi 's bond which is just on the back of Ram Narain 's bond. It is not required by any provision of the Code of Criminal Procedure that all the sureties should execute the bond printed at the back of the form on which the accused execute the personal bond or that the accused must execute as many bonds in identical terms as there are surety bonds by individual sureties. The mere fact that Form No. XLII, Schedule V. Criminal Procedure Code, prints the contents of the two bonds, one to be executed by the accused and the other by the surety, together, does not mean that both these bonds should be on the same sheet of paper. We are, therefore, of opinion that Bekaru 's bond can be forfeited if Ram Narain does not comply with the terms of his bond executed on June 26, 1958 and that Ram Narain had not to execute a (1) A. 1. R. 1939 All. 63 bond afresh when Bekaru furnished fresh surety in place of Safir Hussain 's surety bond. We therefore hold that the appellant 's bond has been rightly forfeited on the non appearance of Ram Narain in 'Court. We therefore dismiss the appeal.

Respondent 1 was declared elected to the Legislative Assembly. His election was challenged, inter alia, on the ground that he had committed the corrupt practice under section 123 (4) of the Representation of People Act, 1951 of making false statements in relation to the personal character or conduct of Respondent 2, a defeated candidate The statements were contained in a pamphlet issued by the agent of Respondent 1 with his consent. Among other statements the pamphlet contained a false statement that the Respondent 2 wits "purchaser of the opponents of the Congress by means (if money". Respondent 1 contended that the statement related to the public or political character of Respondent 2 and not to his private character and did not fall within take mischief of section 123 (4). Held, that the statement related to the personal character of Respondent 2 and Respondent 1 was guilty of the corrupt practice under section 123 (4) of the Act. The offending statement amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congress by offering bribes. Bribery was itself a corrupt practice and an allegation of bribery involved moral turpitude and clearly and unequivocally affected the private character of Respondent 2. 115

Appeal No. 26 of 1956. Appeal by Special Leave from the Judgment and Order dated the 22nd April, 1954, of the Rajasthan High Court in Writ Petition No. 76 of 1951. N. C. Chatterjee, J. B. Dadachanji and M. section K. Aiyangar, for the appellants. K. N. Rajagopal Sastri and D. Gupta, for the respondents. August 31. The Judgment of the Court was delivered by HIDAYATULLAH J. This is an appeal with the special leave of this Court against the judgment of the High Court of Rajasthan dated April 22, 1954. The appellant is a private limited Company, which was incorporated in 1945 in the former Kotah State. The income tax authorities sought to tax its profits and income for the assessment year 1950 51 corresponding to the previous year, 1949 50. The appellant claimed exemption under section 14(2)(c) of the Indian Income tax Act, 1922, as it stood before the amendment in 1953, contending that the exemption stood good even after the amendment. This claim was rejected by the High Court, which was moved under article 226 of the Constitution. Hence this appeal. Prior to the integration of Kotah State into the United State of Rajasthan in 1949, there was no income tax law in force in Kotah State. Till the formation of the State of Rajasthan, there was no such law in force in any part of Rajasthan, except Bundi State. The Indian Finance Act of 1950 made the Indian Income tax Act, 1922, applicable to the whole of India, except the State of Jammu and Kashmir, and suitably amended the Indian Income tax Act. Rajasthan then became, from April 1, 1950, a taxable territory. For the assessment year 1950 51, income tax was sought to be imposed in the State of Rajasthan. One 455 Madan Gopal Kabra move the High Court under article 226 of the Constitution to restrain the taxing authorities from claiming tax for the period prior to April 1, 1950, contending that inasmuch as Rajasthan was not a taxable territory before April 1, 1950, no tax for a period prior to that date could be demanded. This Court in an appeal by the Department against the decision of the High Court of Rajasthan, which had accepted the contention, held that the tax was leviable. It is not necessary to give the details of the decision on that occasion. The judgment of this Court is reported in The Union of India vs Madan Gopal Kabra (1). The present appellant and fourteen others filed petitions under article 226 of the Constitution, urging fresh grounds by a later amendment. Their contention was that section 14(2)(c) of the Indian Income tax Act, as it stood on April 1, 1950, granted an exemption, and that this exemption was not affected by the amendment of the said provision in 1953 even though the amendment was retrospective from April 1, 1950, unless the Finance Act, 1950, which applied the Income tax Act to this area was also amended. This contention was not accepted by the High Court which dismissed the petition under article 226, holding inter alia that this point was also decided by this Court against Madan Gopal Kabra. In this appeal, this point alone is argued, and it is contended that the point is still open for decision. Section 14(2)(c), as it stood before the amendment in 1953, read as follows: " The tax shall not be payable by an assessee (c) in respect of any income, profits or gains accruing or arising to him within Part B State unless such income, profits or gains are received or deemed to be received in or are brought into the taxable territories in the previous year by or on behalf of the assessee, or are assessable under section 12 B or section 42 ". The amendment provided " In section 14 of the principal Act in clause (c) of sub section (2), for the words and letter 1 Part B State ' (1) ; 456 the words the State of Jammu and Kashmir ' shall be substituted and shall be deemed to have been substituted with effect from the 1st day of April, 1950 ". The result of this amendment was described by this Court in Kabra 's case (1) to be as follows: " It may be mentioned here that the exemption from tax under a. 14(2)(c) of the Indian Act of income accruing within Part B States was abrogated, except as regards the State of Jammu and Kashmir, by the amendment of that provision with effect from the first day of April, 1950." Mr. N. C. Chatterjee appearing for the appellant contends that the point cannot be considered to have been finally decided, and that the remark is descriptive only of what the Parliament had purported to do. He claims that the point can and should be reconsider. In support of his contention, be urges that the effect of the passing of the Indian Finance Act, 1950, and the application of the Indian Income tax Act to Rajasthan and other Part B States was to incorporate the Indian Income tax Act by reference in the Indian Finance Act with such modifications and amendments as were then made. Any subsequent amendment of the Indian Income tax Act had no effect on the original Act as incorporated by reference in the Indian Finance Act, unless the latter was suitably amended also. The argument which did not find favour in Kabra 's case (1) was again advanced, though in another form. It is that the amendment operates from April 1, 1950, and that the income accrued prior to April 1, 1950, and it was still exempt, because the exemption was withdrawn only from April 1, 1950. In our opinion, both the arguments have no substance, and the position indicated by this Court in the passage cited earlier, represents the true state of the law. To begin with, the exemption is in respect of liability to tax in any year of assessment, and the exemption in the assessment year 1950 51 was in regard to the income in the previous year. For the same reason, the withdrawal of the exemption in the assessment year 1950 51 conversely affected the (1) ; 457 income of the previous year, 1949 50 which is the subject matter of tax in this case. The next argument misconceives the nature of the Indian Finance Act, 1950. By that Act, the Indian Income tax Act was applied, but the Income tax Act was not incorporated by reference in the Indian Finance Act to become a part of it. The application of the Indian Income tax Act made Rajasthan a taxable territory subject to the Indian Income tax law, and Parliament was competent to enact a new law for the area, just as it did for the whole of the rest of India. The fiction in the amendment made the exemption to disappear as if it had never been granted, and unless there was a saving, the amendment must operate to obliterate the exemption. in fact, the whole purpose and intent of the amendment was to reach this result from the assessment year 1950 51 onwards, and there could be no saving. The argument assumes the premise that the Income tax Act was incorporated in the Indian Finance Act, 1950, but there is neither precedent nor warrant for the assumption that when one Act applies another Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re enacted by the new Act. The Indian Finance Act, 1950, was concerned with the application of the Indian Income tax Act to this area, which it did by amending the definition of 'taxable territory ' in the Indian Income tax Act and by applying that Act to the territory. Thereafter, the Indian Parliament could amend the Income tax Act retrospectively, and the amendment would apply also to the new taxable territory. In our opinion, both the arguments are not valid. The appeal fails, and will be dismissed with costs. Appeal dismissed.

A writ of certiorari cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. It must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it, or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject mat ter, so that the inferior court might not have authority to enter on the inquiry or upon some part 0 697 it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. When an inferior court or tribunal which has the power of deciding facts is established by the legislature. it may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There, it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But the legislature may entrust the court or tribunal itself with a jurisdiction which includes the jurisdiction to determine whether the prelimi nary state of facts exists and on finding that it does exist, to proceed further or do something more. In the second case the rule that a tribunal cannot give itself jurisdiction by wrongly deciding certain facts to exist does not apply. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the par ties. Such jurisdiction is inherent in its very constitu tion as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appel late court so constituted. An order by an Additional Custodian in a proceeding under Ordinance No. XXVII of 1949 refusing to declare a person an evacuee and his property evacuee property is an order under section 7 of of the Ordinance and is appealable under section 24. A person claiming to be interested in an enquiry as to whether a person is an evacuee and his property evacuee property, who has filed a written statement and adduced evidence, is a "person aggrieved" by an order that the latter is not an evacuee and has a locus standi to prefer an appeal from the order.

172 of 1956. Under Article 32 of the Constitution for a writ in the nature of Habeas Corpus. section N. Andely, amicus curiae, for the petitioner. Porus A. Mehta, T. M. Sen and R. H. Dhebar, for the respondent. November 1. The Judgment of the Court was delivered by JAGANNADHADAS J. This is an application under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus against the State of, Jammu and Kashmir by the petitioner who was under detention by virtue of an order dated the 5th September, 1956, issued by the Government of the State of Jammu and Kashmir under sub section (2) of sec tion 3 taken with sub section (1) of section 12 of Jammu and Kashmir Preventive Detention Act, 2011 (hereinafter referred to as the Act). The petitioner was first placed under detention by virtue of an order passed by the District Magistrate, Jammu, under subsection (2) of section 3 of the Act on the 1st May, 1956, and that order was confirmed and continued on the 5th September, 1956, under sub section (1) of section 12 of the Act by the Government after taking the opinion of the Advisory Board. The two orders of detention, one of the District Magistrate dated the 1st May, 1956, and the other of the Government dated the 5th September, 1956, recited that the petitioner is directed to be detained because it was, necessary to make such an order "with a view to preventing him 950 from acting in a manner prejudicial to the maintenance of supplies and services essential to the community". The grounds of detention as communicated to the petitioner on the 31st May, 1956, by the District Magistrate, Jammu, are as follows: "1. That you carried on smuggling of essential goods to Pakistan through the Ferozpur and Amritsar border, but since the tightening of said borders you have recently shifted your smuggling activities to Ranbirsinghpura Pakistan borders in the State of Jammu and Kashmir and are carrying on illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through this border (thus affecting the economic condition of the public in Kashmir State adversely). That for the said purpose of smuggling of goods to Pakistan you went to village Darsoopura on 7th April, 1956, and contacted Ghulam Ahmed son of Suraj bin resident of Darsoopura Tehsil Ranbirsinghpura and one Ram Lal son of Frangi resident of Miran Sahib Tehsil Ranbirsinghpura and others who I similarly are addicted to carrying on such a smuggling business and with their aid made arrangements for export of Shaffon cloth worth Rs. 2,500 to Pakistan through Ranbirsinghpura Pakistan border. That on 11 4 1956, you booked 3 bales of silk cloth through Messrs Jaigopal Rajkumar Shegal of Amritsar to Jammu Tawi and got these bales on address of yourself, and on the same day you got one package of Tila booked through section Kanti Lal Zarianwalla of Amritsar and got this package also addressed "To self" for Jammu Tawi. That after booking these packages as aforesaid you came over to Jammu and waited for their arrival and contacted Ghulam Ahmed and Ram Lal the above mentioned persons. That on the 15th April, 1956, you tried to get the transport receipt from the Punjab National. Bank but did not succeed in doing so as it was a public holiday. Meanwhile your activities leaked out and the goods 951 were seized by the Central Customs and Excise Department of India. 2.There are other facts also but those cannot be given as I consider their disclosure would be against the public interest. That by resorting to the above activities you have been and are acting in a manner prejudicial to the maintenance of the supplies and services essential to the community". It will be seen from the above grounds that the reason for the detention is the alleged "illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through the border, thereby affecting the economic condition of the public, in Kashmir State adversely". From the particulars set out in paragraph 2 of the grounds, it appears that the cloth referred to in paragraph I is Shaffon cloth. The High Court of Jammu and Kashmir, to whom a similar application was filed by this petitioner along with a number of others similarly detained for illicit smuggling of goods, has in its judgment dated the 21st June, 1956" held that Shaffon cloth is not within the category of an essential commodity as defined in the Essential Supplies (Temporary Powers) Ordinance of Jammu and Kashmir. There is no indication in the High Court judgment whether zari is or is not an essential commodity in the same sense. But in answer to a query from this Court, Shri Porus Mehta who appeared before us on behalf of the State of Jammu and Kashmir has stated, on instructions, that zari which is obviously a luxury article is not one of the commodities declared essential under the above Ordinance. The High Court, when it dealt with the batch of applications, of which the application of the petitioner before us was one, set aside the detention of number of others on the ground that the smuggling attributed to the individuals concerned in those cases was not of essential goods. So far as this petitioner is concerned the High Court held as follows: "The case of Dwarika Das Bhatia stands on s 952 different footing altogether. The allegation against him is that he smuggled into Pakistan some goods such as cloth and zari along with a certain quantity of mercury. Mercury is a non ferrous metal and according to the definition of an essential commodity given in the Essential Supplies (Temporary Powers) Ordinance, mercury is an essential commodity. This being so, Dwarika Das Bhatia 's detention cannot be challenged". The point raised before us is that since the detention is based on the assumption that Shaffon cloth and zari as well as mercury are all essential goods and since two out of the three categories of the goods with reference to the smuggling of which the detention has been directed, are found not to be essential goods, the entire order is illegal, although one of the items, viz., mercury is an essential commodity. In support of this contention, the cases of this Court in Dr. Ram Krishan Bhardwaj vs The,, State of Delhi(1), and Shibban Lal Saksena vs The State of U. P. (2) are relied upon. Learned counsel for the State of Jammu and Kashmir contends that the principle of these decisions has no application to the present case, and attempts to distinguish the same. In order to understand the principle underlying these two cases, it is necessary to examine them in some detail. In Dr. Ram Krishan Bhardwaj 's case (supra) the two points that were raised were (1) whether an order of detention is invalid if the grounds supplied in support thereof are vague, and (2) whether the vagueness of one or some of the various grounds vitiates the entire order. The argument advanced in that case was based on the view adopted by this Court in the decision in Atma Ram Sridhar Vaidya 's case(3), viz., that the obligation cast on the detaining authority to supply grounds is for the purpose of enabling a detenue to make a fair representation to the authority concerned and to the Advisory Board, against the order of detention. The argument was that in a (1) ; (2) ; (3)[1951] S C.R. 167. 953 case where one or more of the grounds are vague, the petitioner is handicapped in making an adequate representation as regards that ground and his representation even if effective in respect of the other grounds, may fail to carry conviction as regards the ground which is vague and that this might result in the detention being confirmed. The Court stated that that argument was not without force and held as follows: "The question however is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. . We are Of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of the privilege under clause (6) of article 22. That not having been done in regard to the ground mentioned. . the petitioner 's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21". Shibban Lal Saksena vs The State of U. P. (supra) is a case where the question arose in a different form. The grounds of detention communicated to the detenue were of two fold character, i.e., fell under two different categories, viz., (1) prejudicial to maintenance of supplies essential to community, and (2) injurious to maintenance of public order. When the matter was referred to the Advisory Board, it held that the first of the above grounds was not made out as a fact but upheld the order on the second ground. The question before the court was whether this confirmation of the original order of detention, when one of the two grounds was found to be non existent by the Advisory Board, could be maintained. Their Lordships dealt with the matter as follows: 124 954 "It has been repeatedly held by this court that the power to issue a detention order under section 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency Of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of mala fides. A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenue under section 7 of the Act." Posing the situation which arises in such cases where one of the grounds is found to be irrelevant or un.substantiated, the Court stated as follows: "The question is, whether in such circumstances the original order made under section 3(1) (a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. This principle, which was recognised by the Federal Court in the case of Keshav Talpade vs The King Emperor(1), seems to us to be quite sound and applicable to the facts of this case". (1) 955 In Keshav Talpade 's case(1) the learned Judges stated as follows: "If a detaining authority gives four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons bad been before them". The principle underlying all these decisions is this power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a Dumber of grounds or for a variety of reasons all taken together, and if some out of them are found to be non existent or irrelevant, the very exercise of that power is bad. That is so, because the matter being one for subjec tive satisfaction, it must be properly based. on all the reasons on which it purports to be based. If some ,out of them are found to be non existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as , if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged. (1) 956 In this case, the order of detention is based on the ground that the petitioner was engaged in unlawful smuggling activities relating to three commodities, cloth, zari and mercury of which two are found not to be essential articles. No material is placed before us enabling us to say that the smuggling attributed to the petitioner was substantially only of mercury and that the smuggling as regards the other two commodities was of an inconsequential nature. On the other hand the fact that the particulars furnished to the detenue on the 31st May, 1956, relate only to cloth and zari (we understand that tila referred to in paragraph 3 is zari) indicates that probably the smuggling of these two items was not of an inconsequential nature. We are, therefore, clearly of the opinion that the order of detention in this case is bad and must be quashed. We have accordingly quashed the order and directed the release forthwith of the detenue on the conclusion of the hearing on the 29th October, 1956. Petition allowed.

The petitioners are certain under trials in the State of Bihar. In the Writ Petitions filed by them under Article 32 of the Constitution they complained that after their arrest, whilst under police custody they were blinded by the members of the police force, acting not in their private capacity but as police officials and their fundamental right to life guaranteed under Article 21 was therefore, violated and for this violation the State is liable to pay compensation to them. On an application made by the petitioners, several documents including C.I.D. Reports submitted by Shri L.V. Singh, D.I.G., C.I.D, (Anti Dacoity) on December 9,1980 and other dates were called for by the Court. The State raised an objection to the production of these documents on the ground that they are protected from disclosure under sections 162 to 172 of the Code of Criminal Procedure, 1973 and that the petitioners are not entitled to see them or to make any use of them in the present proceedings. Overruling the State objection and directing the Registry to supply copies of these documents produced before the Court, to the petitioner 's advocate and the advocate appearing as amicus curiae, the Court ^ HELD: 1:1. The reports submitted by Shri L.V. Singh setting forth the results of his investigation cannot be shut out from being produced and considered in evidence either under section 162 or 172 of the Criminal Procedure Code, even if they refer to any statements made before him and his associates during investigation, provided they are otherwise relevant under the provisions of the Indian Evidence Act. In a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in custody, the State Government cannot resist production of a report in regard to the truth or otherwise of the complaint, made by a highly placed officer pursuant to the direction issued by the State Government. [163 B D] 1:2. All the other reports covered by Items 2 to 5 of the Court 's order dated 16th February, 1981 are equally relevant and must, therefore, be produced and taken on record in the writ petition. [164 B C] 146 2:1. The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed under order XXXV of the Supreme Court Rules, 1966, and sub rule (9) of Rule 10 lays down that at the hearing of the rule nisi if the court is of the opinion that an opportunity be given to the parties to establish their respective cases by leading further evidence, the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the Indian Evidence Act. It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 of the Constitution provided it is relevant under the Indian Evidence Act and neither section 162 nor section 172 can be urged as a bar against its production or use. [153 C E] 3:1. When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in criminal proceeding which may be taken against a particular police officer. [160 G H, 161 A B] 4. The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved. The two are entirely distinct and separate proceedings and neither is a bar against the other. It may be that in a given case, if the investigation is still proceeding, the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice, it may postpone its inquiry even after the prosecution following upon the investigation is terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending. [161 D E] 5. The fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody. The several reports called for by the Court clearly relate to the issue as to how, in what manner and by whom the twenty four undertrial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed by the State Government to investigate. If that be so, the State cannot resist the production of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under section 35 of the Indian Evidence Act since they relate to a fact in issue and are made by a public servant in the discharge of his official duty. A D] P.C.P. Reddiar vs section Perumal, ; ; Kanwar Lal Gupta vs Amar Nath Chawla, ; ; followed. Jagdat vs Sheopal, A.I.R. 1927 Oudh 323; Chandulal vs Pushkar Rai, A.I.R. 1952 Nagpur 271; Lionell Edwards Limited vs State of West Bengal, A.I.R, , quoted with approval. 147 6. Section 4 of the Criminal Procedure Code, 1973 makes it clear that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into tried or otherwise dealt with. [151 B C] 7. Section 162 bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the Section, this bar is applicable only where such statement is sought to be used "at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. " If the statement made before the police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of section 162 would not be attracted. [152 A C] 7:2. Section 162 has been enacted for benefit of the accused and to protect him against overzealous police officers and untruthful witnesses. But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Indian Evidence Act. [152 D, H, 153 A B] Tehsildar Singh and Another vs The State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 875 at 890, applied. Emperor vs Aftab Mohd. Khan, A.I.R. 1940 All. 291; Baliram Tikaram Maratha vs Emperor, A.I.R. 1945 Nagpur 1; Malakalaya Surya Rao vs Janakamma, A.I.R. 1964 A.P. 198; approved. Sub section (2) of section 172 of the Criminal Procedure Code empowers the criminal court holding an inquiry or trial of a case to send for the police diary of the case and the criminal court can use such diary, not as evidence in the case, but to aid it in such inquiry or trial. But, by reason of sub section (3) of section 172, merely because the case diary is referred to by the criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it. If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of section 161 or section 145, as the case may be of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used. [156 C D] Queen Empress vs Mannu, [1897] 19 All. 390, quoted with approval. State of Bihar vs J.A.C. Saldhana, ; , referred to. The bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial for an offence and even this 148 bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer. This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates. The present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 21 is neither an "inquiry" nor a "trial" for an offence nor is this court hearing the writ petition a criminal court nor are the petitioners, accused or their agents so far as the offences arising out of their blinding are concerned. Therefore, even if the reports submitted by Shri L.V. Singh as a result of his investigation could be said to form part of "case diary" their production and use in the present writ petition under Article 32 of the Constitution cannot be said to be barred under section 172 of the Criminal Procedure Code. [156 D G, 157 A B] 9:1. It would not be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section. In fact to do so would be inconsistent with the constitutional commitment of the Supreme Court to the rule of law. Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not, it cannot be said to be barred on an extended or analogical application of the principle supposed to be underlying that section, if it is not covered by its express terms. In order that truth may emerge from the clash between contesting parties under the adversary system, it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out, for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in mis carriage of justice. It is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court. But the law may, in exceptional cases, in order to protect more weighty and compelling competing interests, provide that a particular piece of evidence, though relevant, shall not be liable to be produced or called in evidence. Such exceptions are to be found, inter alia, in sections 122, 123 124, 126 and 129 of the Indian Evidence Act and sections 162 and 172 of the Criminal Procedure Code But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed, "for they are in derogation of the search for truth". [157 E H, 158 A C] United States vs Nixon, ; 41 Lawyers Edition (2nd series) 1039, quoted with approval. The Court did not express any opinion regarding the two interesting questions, (i) whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and (ii) whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172 of the Criminal Procedure Code. [155 D G] 149