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Appeal No. 47 of 1979. From the Judgment Order dated 20.1.77 of the Gujarat High Court in Second Appeal No. 90 of 1976. Krishan Kumar for Vimal Chandra section Dave for the Appellants. Ms. Meenaksh Arora for Anip Sachthey for the Respondent. The Judgment of the Court was delivered by ANAND, J. This appeal by special leave, is directed against the judgment of the Gujarat High Court dated 20th of January, 1977 in Second Appeal No. 90 of 1976. The plaintiffs appellants are the farmers of the Village Morzar under Bhanwad Taluka of Jamnagar District. Their lands are situated on the outskirts of the village. Under the Vartu Dam Irrigation Scheme, the defendant State proposed to construct a Dam on river Vartu and prepared a sketch, indicating the passage of the canal from Vartu Dam and for that purpose, it proceeded to acquire land through which the canal was proposed to run. The plaintiffs appellants apprehended serious damage to their lands by the passing of the canal through their lands and they filed a Regular Civil Suit in 1966 against the defendant State, seeking to restrain it from implementing the Irrigation Scheme, as proposed. Suit was registered and defendants were summoned. During the pendency of the suit, it appears that an agreement was arrived at between the parties and it was agreed that the canal from Vartu Dam would be run as per the line demarcated in red in the map appended to the deed of agreement Ex.45. As a result of the said agreement the suit was unconditionally withdrawn by the plaintiffs on 24.11.1966. Somewhere in 1972, the plaintiffs appellants discovered that the State Government was going back from the agreement and alignment of the canal was being undertaken contrary to the alignment reflected in the map appended to the agreement Ex.45. They, therefore, filed a fresh suit for declaration to the effect that the agreement, dated 7.11.1966, entered into between them and the respondents through its Executive Engineer, Irrigation Department Jamnagar, was binding on the parties and that the parties were bound to act according to the terms of the said agreement and for an injunction, restraining the defendant State from going back on the agreement. This suit of the plaintiffs appellants was contested and the following issues were framed 371 (1) Whether the suit agreement dated 7.11.1966 is not binding to the defendant ? (2) If it is binding whether the plaintiff prove that they have complied with the terms and conditions of this agreement? (3) Whether the suit as framed is not maintainable? (4) Whether the suit is bad for the mis joinder of the plaintiffs and the cause of action? (5) Whether the suit is not maintainable as the agreement dated 7.11.1966 has not been registered of because no compromise decree had been passed in terms of this agreement? (6) Whether the suit is not in time? (7) Whether the plaintiffs are entitled to the declaration sought? (8) Whether the plaintiffs are entitled to get the permanent injunction as prayed for by them? (9) What order? Issues 1 to 8 were decided in favour of the plaintiffs appellants and against the defendant State. The Trial Court decreed the suit and declared that the suit agreement dated 7.11.1966 entered between the plaintiffs and the defendants through its executive engineer, was binding on the parties and that the parties were bound to act in accordance with the terms of the said compromise the defendant state was permanently restrained from going back from the agreement and act otherwise than as per the terms of the same. The State of Gujarat preferred an appeal in the Court of District Judge Jamnagar against the judgment and decree of the Trial Court. During the hearing, the parties confined their arguments to the following two points (1) Whether the agreement dated 7.11.66 is binding to the 372 State of Gujarat? (2) Whether the plaintiffs are entitled to the reliefs, granted to them by the trial court? The appellate court answered both the questions in the affirmative and by its order dated October 20, 1975 confirmed the judgment and decree of the trial court. The appeal of the State of Gujarat was dismissed. The State filed a Second Appeal in the High Court. The High Court examined the agreement dated 7.11.1966, exhibit 45 which is in Gujarati and is described as Rojkam on the subject of the alignment of Vartu Canal. The High Court noticed that the Rojkam refers to the filing of the suit in the Civil Court and the meeting between the Executive Engineer and the occupants of land and proceeded to recite that on the aforesaid subject there was discussion of the Executive Engineer with the occupants and thereafter both the sides have amicably settled(compromised) the dispute with regard to the alignment of the canal. The Rojkam further records that both the sides have agreed to the alignment shown in rose colour in the map. The Rojkam then records: "The Executive Engineer Mr. B.V. Nanavati having assured of getting necessary alterations as aforesaid made, they (i.e., the plaintiffs or the occupants) have shown willingness to withdraw unconditionally the suit filed in Civil Court. " The Rojkam is signed by the Executive Engineer as also by the occupants. Before the High Court, the main plea raised by the State was that the alleged compromise/agreement was not binding upon the State. It was stated that the State does not admit any agreement made by the Executive Engineer either on behalf of the State or as a representative of the State and, therefore, the so called agreement did not bind the State Government. It was asserted by the State that the Executive Engineer had no authority to agree on behalf of the State Government as he was not the representative of the Government. Similar plea had been raised before the trial court and the lower appellate court but was rejected. The High Court, however, accepted the plea of the State and found that the courts below had erred in ignoring the mandatory provisions of Article 299 of the Constitution of India which mandates that all contracts made in the exer 373 cise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of a State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall executed on behalf of the President or the Governor by such persons and in such a manner as he may direct or authorise. The High Court found that for non compliance with the provisions of Article 299(1) of the Constitution of India which are mandatory in character, the agreement exhibit 45, was a null and void document. The High Court then observed : "Apart from the question whether the Executive Engineer in the present case was directed or authorised to execute this agreement on behalf of the State Government, it is clear on the face of the document Ex.45 itself that the alleged agreement contained therein is not expressed to be made by the Governor. This position is incontrovertible and even Mr. Shah for plaintiffs respondents was not able to show that the document Exh.45 contains an agreement expressed to be made by the Governor. Really speaking, on a correct interpretation of this document Exh.45, it only contains basis of the compromise terms between the Executive Engineer and the occupants (who probably were plaintiffs of the earlier suit) as regards the change of alignment; and pursuant to which compromise the plaintiffs agreed to withdraw the suit. The Governor or the State Government is nowhere in the picture if we go through this agreement. Therefore, assuming that the document contains an agreement in reality it is an agreement not by the Governor or the state Government but by the Executive Engineer with the occupants who signed the same. Such an agreement which is not in compliance with the provisions of Article 299 of the Constitution is void and unenforceable against the State. If this is so, the suit filed by the respondents plaintiffs must fail. " The High court negatived the contention raised on behalf of the plaintiffs appellants to the effect that under the statutory powers conferred by Section 18 of the Bombay Irrigation Act, 1879 (hereinafter called the Act), the Executive Engineer was competent to enter into compromise and 374 that the said compromise arrived at during the pendency of the earlier suit was binding on the Government. The High Court said : "Then it was contended that in exercise of his powers under section 18 of the aforesaid Act, the Executive Engineer acts for the Government; and, therefore, the agreement in question is binding on the Government. There is an inherent misconception underlying this contention. While exercising statutory powers i.e. powers conferred by a statute an officer of the Government does not act for the Government. He acts not because of any authority derived from the Government to exercise power conferred on him by the Statute. This contention must also fail." As a consequence, the appeal filed by the State was allowed and the judgment and decree passed by the courts below were reversed and the suit filed by the plaintiffs appellants was dismissed with costs throughout. Learned counsel for the appellants has assailed the judgment of the High Court and submitted that the agreement/compromise, Ex.45, had been validly entered into by the Executive Engineer with the appellants in view of the statutory powers vested in the Executive Engineer under Section 18 of the Act and reliance placed on Article 299 of the Constitution of India, in the facts and circumstances of this case, was wholly erroneous. It was urged that by a Notification, dated 27th of September 1963, published in Part IV B of the Gujarat Government Gazette dated 31st of October, 1963, the Government of Gujarat had appointed all Executive Engineers and superintending Engineers in charge of canals in the State of Gujarat to be Canal Officers in respect of such canals and assigned to them all the powers and duties of the Canal Officers under the Act, and, therefore, the agreement/compromise entered into by the Executive Engineer on 7.11.1966 during the pendency of the suit of which he was doing "pervi" was a validly executed compromise which was binding on the parties and the respondent could not go back on it. Having been made to withdraw their earlier suit on the basis of the agreement, dated 7.11.1966, it was not permissible for the respondent to now dispute the act done by its officers or agents within their powers under the statute. In the facts and circumstances of this case, we find force in the submission of learned counsel for the appellants regarding the non ap 375 placability of Article 299 of the Constitution of India to invalidate the agreement/compromise dated 7.11.1966 arrived at during the pendency of the earlier suit filed by the appellants relying whereupon the appellants withdrew the earlier suit. The agreement/compromise Ex.45, arrived at in the previous suit, could not have been equated with a contract between the State and the citizen. Article 299 (1) which reads thus : "All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. " concerns itself with contracts and assurances of property and lays down how Government contracts, including assurances of property are to be made and executed. Indeed, the provisions of Article 299 are mandatory in character and their non compliance would render a contract void but where the agreement is not referable to Article 299 and is not a contract, as contemplated by that Article, the agreement cannot be invalidated for not satisfying the essential requirements of Article 299 of the Constitution. A compromise of the nature contained in the agreement dated 7.11.1966, arrived at during the pendency of a suit, is not a contract executed between the parties as envisaged by Article 299. There is a marked distinction between contracts which are executed in exercise of the executive powers and agreements or orders made which are statutory in nature. Article 299(1) applies to a contract made in exercise of the executive power of the Union or the State and it has no application to a case where a particular statutory authority, as distinguished from the Union or the State, enters into an agreement within his authorised capacity. In State of Haryana & Ors. vs Lal Chand & Ors., ; this Court considered a contract granting exclusive privilege of liquor vending, in exercise of the statutory powers referable to Punjab Excise Act, 1914 and Punjab Liquor Licence Rules, 1956, and held that the grant of the exclusive privilege gave rise to a contract of a statutory nature, distinguished from the one executed under Article 299(1) and, therefore, compliance with Article 299(1) was not required in such a case. 376 The question which immediately arises for our consideration is : Was the Executive Engineer competent to execute the agreement Ex.45? In this connection, it would be relevant to refer to some of the more relevant statutory provisions contained in the Act. Section 3(6) provides as follows : (6) "Canal Officer" means any officer lawfully appointed or invested with powers under section 4; Section 17 reads thus; "Any persons desiring to construct a new water course, but being unable or unwilling to construct it under a private arrangement with the holder of the land required for the same, may apply in writing to any Canal Officer duly empowered to receive such applications, stating; (1) that he is ready to defray all the expense necessary for acquiring the land and constructing such water course; (2) that he desires the said Canal Officer in his behalf and his cost to do all things necessary for constructing such water course. " Section 18 provides as follows "If the Canal Officer considers the construction of such water course expedient, he may call upon the applicant to deposit any part of the expense to such officer may con sider necessary, and upon such deposit being made, shall cause inquiry to be made into the most suitable alignment for the said water course, and shall mark out the land which, in his opinion, it will be necessary to occupy for the construction thereof, and shall forthwith publish a notification in every village through which the water ' course is proposed to be taken, that so much of such land as is situated within such 377 village has been so marked out, and shall send a copy of such notification to the Collector of every district in which such land is situated, for publication on such land. The said notification shall also call upon any person who wishes to share in the ownership of such water course to make his application in that respect to the Canal Officer within thirty days of the publication of such notification. If any such applicant appears, and his application is admitted, he shall be liable to pay his share in the construction of such water course, and in the cost of acquiring the land for the same, and shall be an owner of such water course when constructed. " Powers of the canal officers are contained in Section 77 reads thus "(1) For the purpose of the inquiries under section 76 such Canal Officer may enter, by himself or any officer authorised by him for the purpose, upon any land adjacent to any such work, and may survey, demarcate and make a map of the same. (2)Notwithstanding anything contained in section 76 where no sufficient evidence is forthcoming as to all or any of the matters specified in that section such Canal Officer shall, so far as may be, settle and record the aforesaid matters in such manner as he may deem fit. " A perusal of the record reveal that it was the Executive Engineer who was doing "pervi" of the case in the suit filed. in 1966. The agreement (compromise) Ex.45 was entered into during the pendency of the said case. As already noticed the Government of Gujarat had appointed all Executive Engineers and Superintending Engineers in charge of Canals in the State of Gujarat to be Canal Officers in respect of such canals and assigned to them all the powers and duties of the Canal Officers under the Act by virtue of the Notification dated 27th September, 1963. Thus, it is manifest that the Executive Engineer, by virtue of the said Notification, had been lawfully appointed as Canal Officer within the meaning of Section 378 3(6) of the Act. Section 18 of the Act vests the Canal Officer with the power to hold inquiry and direct the construction of suitable alignments for a water course and by Section 77 of the Act (supra) the Canal Officer is vested with the authority to survey, demarcate and make a map of the land which in his opinion is suitable for constructing an alignment for the water course. Thus, under the statute,, read with the Notification dated 27th September 1963, the Canal Officer (Executive Engineer) was fully com petent to decide about the particular alignment of the water course and it fell within his jurisdiction to decide and settle about the suitable demarcation of the alignment of the water course of the canal from Vartu Dam. He exercised that jurisdiction under the statute when he demarcated the water course in red, in the map attached to Ex.45, the agreement. It is the content of the agreement and not its form which is relevant to trace the source of power behind it and when examined in the light of the statutory provisions noticed above, it is manifest that the document Ex.45 has been executed by the Executive Engineer by virtue of the statutory powers vested in him. The circumstance that the agreement Ex.45 came into existence during the pendency of the suit and was executed by way of an agreement does not militate against the order of alignment as reflected therein being any less statutory in character. As a matter of fact the Act itself envisages that the Canal Officer may alter and settle the alignment in consultation with the landholders through which the water course is to run. In the agreement Ex.45, the Executive Engineer had agreed to alter the alignment of the water course in consultation with the petitioners who thereupon ,unconditionally ' withdrew the suit as it appears no grievance remained to be settled. The altered alignment was, therefore, validly made by following the procedure envisaged by the Act. The High Court fell in error in ignoring this aspect of the case. It failed to appreciate the statutory powers of the Executive Engineer, vested in him under Sections 18 and 77 of the Act read with the notification of 27th September, 1.963 on the true import of agreement Ex.45. Thus, in the facts and circumstances of the case we are satisfied that the agreement dated 7.11.1966, exhibit 45 was lawfully executed by the Executive Engineer in exercise of his statutory powers under the Act and the State was obliged to act according to the terms of the said agreement and could not give it a go bye without following the procedure under the Act to again alter the alignment. It is nobody 's case that for making an alteration in the alignment, the requisite exercise was undertaken, as envisaged by the Act, in 1972, when the suit out of which 379 these proceedings have arisen was filed. In view of the aforesaid discussion, the judgment and decree of the High Court deserves to be set aside and are hereby set aside. The judgment and decree passed by the Trial Court as confirmed by the District Judge are restored though for different reasons, as detailed above. The appeal is consequently allowed. The parties, however, shall bear their own costs throughout. Before parting with the judgment, we would also like to clarify certain position. The dispute is almost three decades old. Learned counsel for the parties were unable to state as to whether fresh alignments as envisaged by the red line in the map attached to Ex.45, agreement, had been made for the passing of the canal or not. We would, therefore, like to clarify that if any fresh alignment for the water course is required to be made, different than the one originally proposed or the one contained in the said Map, the same may be made but only by following the procedure prescribed under the Act and this judgment shall not be construed as any bar therefore. N.P.V. Appeal allowed.

On the evening of 27th February, 1990, informant 's younger brother was attacked by twenty persons including the present two appellants with sticks, etc. First Information Report was lodged at about 9.30 pm. on the same day in which all the twenty persons were named as the assailants. The injured died in the hospital on the next day. In course of investigation statements of the informant and others were recorded and a charge sheet was forwarded to the Court of the Magistrate wherein eighteen persons, were shown as the offenders. The names of the present two appellants were not included In the report, as In the opinion of the investigating officer their involvement in the commission of the crime was not established. The eighteen persons named in the report were committed to the Court of Session under Section 209 of the Code of Criminal Procedure to stand trial. When the matter came up before the Sessions Judge, an application was presented under Section 319 of the Code praying to implead the appellants also as accused persons. To the show cause notice issued to the appellants, they submitted that though they were not present at the place of occurrence, they falsely named in the First Information Report and the investigating officer had rightly omitted their names from the charge sheet filed in Court 32 The Sessions Judge rejected the plea of the appellants and impleaded them as co accused along with the eighteen others. This was done before the commencement of the actual trial. The appellants ' revision flied before the High Court was dismissed. The appellants moved this Court by special leave under Article 136 of the Constitution of India, against the High Court 's order contending that unless evidence was recorded during the course of trial, the Sessions Judge had no jurisdiction under Section 319 of the Code of Criminal Procedure to take cognizance and implead the appellants as co accused solely on the basis of the material collected in the course of investigation and appended to the report forwarded under Section 173 of the Code in view of the clear mandate of Section 193 of the Code; that since the trial had not commenced and the prosecution had not led any evidence, the stage for the exercise of the power had not reached. Dismissing the appeal, this Court HELD : 1.01. On a plain reading of sub section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any Inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power, can be exercised only if it so appears from the evidence at the trial and not otherwise. Therefore, the sub section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before It Is also involved in the commission of the crime for which he can be tried with those already named by the police. Even a person who has earlier been discharged would fall within the sweep of the power conferred by Section 319 of the Code. Therefore, stricto sensu Section 319 of the Code cannot be invoked in a case where. no evidence has been led at a trial wherefrom It can be said that the appellants appear to have been involved In the commission of the crime along with these already sent up for trial by the prosecution. Section 319 covers the post congnizance stage where in the course of an inquiry or trial the involvement or complicity of a person or 33 persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. 1.05. Section 319 can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. The sweep of Section 319 is, therefore, limited in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it 1.06. Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded In the course of an Inquiry or trial. This may happen not merely In cases where despite the name of a person figuring in the course of investigation the investigatIng agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. The scope of Its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the Inquiry or trial. Thus the Section does not apply to all situations and cannot be Interpreted to be the repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court 1.08. Once the case is committed to the Court of Session by a magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the magistrate committing the case under Section 209 to the Court of Session the bar of section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie by gathered from the material available on record. The stage for the exercise of power under section 319 of the Code had not reached, inasmuch as, the trial had not commenced and 34 evidence was not led. The Court of Session bad, however, the power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case. Once It is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. Joginder Singh vs State of Punjab, ; and Sohan Lal & Ors. vs State of Rajasthan; ; referred to. 2.01.The two alternative modes In which the Criminal Law cm be set in motion are: by the filing of information with the police under Section 154 of the Code or upon receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may culminate In a police report under Section 173 of the Code on the basis whereof cognizance may be taken by the Magistrate under Section 190(1)(b) of the Code. In the latter case, the Magistrate may either order investigation by the police under Section 156(3) of the Code or himself hold an inquiry under Section 202 before taking cognizance of the offence under Section 190(1) (a) or (c), as the case may be, mad with Section 204 of the Code. Once the Magistrate takes cognizance of the offence he may proceed to try the offender (except where the case is transferred under section 191 or commit him for trial under Section 209 of the Code if the offence Is triable exclusively by a Court of Session. Once cognizance of an offence is taken It becomes the Courts duty to find out who the offenders really am and if the Court finds that apart from the persons sent up by the police some other persons am involved, It Is his duty to proceed against those persons by summoning then because 'the summoning of the additional accused Is part of the proceeding initiated by his taking cognizance of an offence,. 2.03.After cognizance is taken under Section 190(1) of the Code, in warrant cases the Court is required to frame a charge containing particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed. But before framing the charge section 227 of the Code provides that if, upon a consideration of the record of the case and the documents submitted therewith, the Sessions Judge considers that them 35 is not sufficient ground for proceeding against the accused, he shall, for reasons to be recorded, discharge the accused. It Is only when the Judge is of opinion that there is ground for presuming that the accused was committed an offence that he will proceed to frame a charge and record the plea of the accused (vide, section 228). R becomes Immediately clear that for the limited purpose of deciding whether or not to frame a charge against the accused, the judge would be required to examine the record of the case and the documents submitted therewith, which would comprise the police report, the statements of witnesses recorded under Section 161 of the Code, the seizure memoranda, etc. etc. 2.05. Once the court takes cognizance of the offence (not the offender) it becomes the court 's duty to rind out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also Involved in the commission of the crime, it is the court 's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. Even though the expression 'take cognizance ' is not defined, it is well settled that when the Magistrate takes notice of the accusations and applies his mind to the allegations made In the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he Is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the magistrate does so for proceeding under Section 200/204 of the Code. Jamuna Singh & Ors. vs Bhadai Sak ; at 4041; Raghubans Dubey vs State of Bihar ; and Hariram Satpathy vs Tikaram Agarwala, ; AIR 1978 SC 1S68, referred to. S.K Latfur Rahman & Ors. vs The State, (1985) PLJR 640 (1985) Criminal Law Journal 1238, approved.

Appeal No. 815 of 1963. Appeal by special leave from judgment and order dated April 23, 1963, of the Madhya Pradesh High Court in 1st Appeal No. 23 of 1963. G.S. Pathak, B. A. Musodkar, section N. Andley and Rameshwar Nath, for the appellant. M. section Gupta, for respondent No. 1. December 20, 1963. The following Judgments were delivered: AYYANGAR J. On behalf of the Chief Justice and himself) We have had the advantage of perusing the judgment of our brother Subba Rao J. and we agree with him that the appeal should be dismissed. The justification for this separate judgment, however, is because of our inability to agree with him in his construc tion of the relative scope of the two limbs of section 29(2) of the Indian Limitation Act. The facts of the case have been set out in detail in the judgment of Subba Rao J. and it is therefore unnecessary to repeat them. There were three principal points that were urged before us on either side which require to be considered and all of them turn on the proper construction of section 29(2) of the Indian Limitation Act which we shall for convenience set out here: "29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and 133 (b) the remaining provisions of this Act shall not apply." The learned Judges of the High Court have proceeded on the basis that section 29(2)(a) applies to the case of appeals preferred under section 116 A of the Representation of the People Act, 1951 and on that footing have held that the appeal presented to them by the respondent was within time if computed after making the deductions permitted by section 12 of the Limitation Act. It is the correctness of this view that is challenged before. .us. Proceeding now to deal with the question whether the terms of section 29(2) are apt to take in appeals under the Re presentation of the People Act, the first matter to be con sidered necessarily is whether that Act is a "special or local law" within the opening words of the sub section. As to this, however, Mr. Pathak raised no dispute and he con ceded that section 116A was such a "special or local law. " That this "special or local law" prescribes "for an appeal a period of limitation" is also evident. The first point of controversy, however, has arisen as to whether "the period of limitation prescribed by the special or local Law is different from the period prescribed therefor by the first schedule. " The contention urged strenuously before us by Mr. Pathak, the learned counsel for the appellant, was that there would be "a different period" only where for the identical appeal (to refer only to that proceeding with which we are immediately concerned) for which a period of limitation has been prescribed by the special or local Law, a period is prescribed by first column of the first schedule. and there is a difference between the two periods. It was his further contention that where the Indian Limitation Act made no provision for such an appeal, section 29(2) and the provision contained in its (a) and (b) were inapplicable. There have been several decisions on this point but it is sufficient to refer to the decision of the Bombay High Court in Canara Bank Ltd., Bombay vs The Warden Insurance Co. Ltd., Bombay (1) where Chagla C.J. repelled this construction and held that even where there was no provision in the first schedule for an (1) I. L. R. 134 appeal in a situation identical with that for which the spe cial law provides, the test of "a prescription of a period of limitation different from the period prescribed by the First Schedule is satisfied. This Court in State of U.P. vs Smt. Kaushaliya etc.(1) upheld this construction and approved ,the judgment of Chagla C.J. in the Canara Bank case. Apart from the decision of this Court, we consider the reasoning of Chagla C.J. to be unexceptionable and we agree with Subba Rao J. in holding that the requirement of a prescription by the special law "of a period different" from that prescribed by the First Schedule is satisfied in the present case. The next point was one that arose on the submission of counsel for the respondent and it was this. Assume that the construction of the words "different from" urged by the appellant were accepted, and this requirement would be satisfied only if the First Schedule made provision for an identical appeal as that under the special law, still it was submitted by the respondent that even this was satisfied in this case. For this purpose he relied on article 156 of the first schedule which runs: Time from which "Description of Period of period begins to appeal limitation run 156. Under the Code of Civil Ninety days The date of Procedure, 1908, to a High decree or order Court, except in the cases appealed from." provided for by article 51 and article 153. The argument was that though the right of appeal in the case before us was conferred by section 116A of the Representation of the People Act and it was by virtue thereof that the appeal was filed by the respondent to the High Court, it was still an appeal "under the Code of Civil Procedure, 1908, to a High Court. " For this submission learned Counsel relied principally on two decisions one of the Calcutta and the (1) A. 1. R. 135 other of the Madras High Court, and they undoubtedly support him. In Aga Mohd. Hamdani vs Cohen and Ors.(1) as well as in Ramasami Pillai vs Deputy Collector of, Madura(1) which followed it the Court held that to attract this article it was not necessary in order to be an "appeal under the Code of Civil Procedure" within the meaning of those words in article 156, that the right to prefer the appeal should be conferred by the Code of Civil Procedure but that it was sufficient if the procedure for the filing of the appeal and the powers of the court for dealing with the appeal were governed by that Code. For adopting this construction the Court relied on the reference in article 156 to article 151. Article 151 dealt with appeals to the High Court from judgment rendered on the original side of that Court. The right to prefer these appeals was conferred by the Letters Patent constituting the respective High Courts and not by the Code of Civil Procedure, though the Code of Civil Procedure governed the procedure, jurisdiction and powers of the Court in dealing with the appeals so filed. There would have been need therefore to except cases covered by article 151 only if the words "under the Code of Civil Procedure" were understood as meaning appeals for the disposal of which the provisions of the Code of Civil Procedure was made applicable. We might mention that besides the Calcutta and the Madras High Courts a Full Bench of the Allahabad High Court also has in Daropadi vs Hira Lal (3 ) adopted a similar construction of the Article, the learned Judges pointing out that several Indian enactments, among them the Indian Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, proceeded on the basis of a legislative practice of con ferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application, of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that article 156 would furnish the period of limitation for such appeals. We consider that these deci (1) 1. L. R. (3) 1. L. R. 34 Allahabad 496. (2) 1. L. R. 136 sions correctly interpret article 156 and, in any event, we are not prepared to disturb the decisions which have stood for so long and on the basis of the correctness of which Indian legislation has proceeded. Mr. Pathak drew our attention to some decisions in which a different construction was adopted of the word "under" a particular enactment occurring in other Articles of the Limitation Act and in particular some dealing with appeals in certain criminal matters. In them the word 'under ' was understood as meaning "by virtue of". He was, however, unable to bring to our notice any decision in which the construction adopted of article 156 which we have set out has been departed from. In the cases dealing with the words "under the Criminal Procedure Code" which he placed before us, the situation would obviously be different, since the indication afforded by the mention of article 151 in article 156 does not figure in the Articles dealt with. Therefore that would be a circumstance pointing to a different result. If the construction adopted of article 156 in the Calcutta and Madras decisions to which we have referred were upheld, there could be no controversy that an appeal under section 116A of the Representation of the People Act would be "under the Code of Civil Procedure", for section 116A(2) enacts, to read the material portion: "116A. (2) The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate juris diction. . . . . In this view even on the narrowest construction of the words "different from those prescribed therefor in first schedule" occurring the opening part of section 29(2), the exclusion of time provided for by article 12 of the Limitation Act would be permissible in computing the period of limitation for filing the appeal to the High Court in the case before us. 137 The last point which remains for consideration is one which would be material only in the event of the two points we have already dealt with being decided differently. This relates to the relationship or inter connection between the first and the second limbs of section 29(2) of the Limitation Act. The reason why we are dealing with it is because of our inability to agree with the construction which our learned brothers Subba Rao & Mudholkar JJ. have placed on this feature of the sub section. Sub section (2), it would be seen, consists of two parts. The first sets out the conditions to which the special law should conform in order to attract section 3 and that part ends with the words 'as if such period were prescribed therefor in that schedule". This is followed by the conjunction 'and ' that word by the second part reading "for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. " The question that has been debated before us is whether the condition postulated by the first limb, namely the special or local law prescribing a period of limitation for a suit appeal etc. different from the period prescribed therefor by the first schedule has to be satisfied in order to render the provisions of cl. (a) applicable. If the conjunction 'and ' was used for the purpose of indicating that the two parts were cumulative, that is, if the two parts operated in respect of the same set of circumstances, then unless the opening words of sub section (2) were satisfied, there would be no basis for the application of cl. (a) to the period prescribed for a suit, appeal or application applicable by the special or local law. If on the other hand, the two parts of the sub section could be read independently as if they made provision for two separate situations, the result would be that the words starting from "for the purpose 138 of determining any period of limitation prescribed for any suit, appeal or application by any special or local law" followed by clauses (a) & (b) would be an independent provi sion unrelated to the first part and therefore could operate unhampered by the condition set out in the first part. In other words, if the latter construction were adopted for every suit, appeal or application for which a period of limitation was prescribed by a special or local law, the provisions in sections 4, 9 to 18 & 22 would apply unless excluded. Mr, Pathak urged that the conjunction 'and ' could in the context be construed only as rendering the second limb a part and parcel of the first, so that unless the conditions laid down by the opening words of the sub section were satisfied, the provisions of the Limitation Act set out in cl. (a) would not be attracted to "determine the period of limitation ' prescribed by the special or local law. The question of the import and function of the conjunction 'and ' was the subject of elaborate consideration by a Full Bench of the Allahabad High Court in a decision in Sehat Ali Khan vs Abdul Qavi Khan(1). The majority of the learned Judges held that the two parts of the sub section were independent and that "for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law". (a) would apply unless excluded. Raghubar Dayal J. then a judge of that Court, however, dissented from this view and held that the entire sub section (2) had to be read as an integrated provision and that the conjunction 'and ' connected the two parts and made it necessary for attracting cl. (a) that the conditions laid down by the opening words of sub section (2) should be satisfied. Mr. Pathak recommended for our acceptance the dissenting judgment of Dayal J. We consider that the view expressed by Raghubar Dayal J. as to the inter relation of the two parts of the sub section reflects correctly our own construction of the provision. Raghubar Dayal J. has approached this question of construction from several angles including the grammar of the passage. Without going into any of them, we would rest our decision on a shorter ground. In order that the second part might be held to be independent ,of the first, the first part should itself be complete and be 1. L. R. [1956]2 Allahabad 252. 139 capable of operating independently. Unless this test were satisfied, the conjunction 'and ' would have to be read as importing into what follows it, the conditions or consideration set out earlier as otherwise even the first part would be incomplete. Let us now see whether the first part could function without the second. The first part reads "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the first schedule the provision of section 3 shall apply as if that period was prescribed therefor in that schedule. " The question is what this, standing by itself, would signify. If the conditions prescribed by the opening words were satisfied, section 3 of the Limitation Act would be attracted Section 3 reads: "Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence. . . . In other words, if the special or local law prescribed a period of limitation different from that prescribed by the first schedule by the application of the first part of sub section (2), the court is enabled to dismiss suits, appeals and applications filed beyond time. If this is the only effect it would be seen that the provision is inane and redundant, because even without it, by the very prescription of a period of limitation the jurisdiction of the court to entertain the suit, appeal etc. would be dependent on the same being filed in time. It is possible, however, to construe the reference to section 3 in section 29(2) to mean that the power to dismiss the suit, appeal etc. if filed beyond the time prescribed, is subject to the modes of computation etc. of the time prescribed by applying the provisions of sections 4 to 25 which are referred to in the opening words of section 3. On this construction where a case satisfies the opening words of section 29(2) the entire group of sections 3 to 25 would be attracted to determine the period of limitation prescribed by the special or local law. Now let us test this with reference to the second limb of section 29(2) treating the latter as 140 a separate and independent provision. That part starts with the words "for determining any period of limitation pres cribed for any suit, appeal or application by any special or local law" (italics ours). The words italicised being perfectly general, would manifestly be comprehensive to include every special or local law, and among these must necessarily be included such special or local laws which satisfy the conditions specified by the first limb of section 29(2). We then have this strange result that by the operation of the first part sections 3 to 25 of the Limitation Act are made applicable to that class of special and local laws which satisfy the conditions specified by the first limb, whereas by the operation of the second limb the provisions of section 3, 5, 6 to 8 & 19 to 21 & 23 to 25 would not apply to the same class of cases. A construction which would lead to this anomalous result cannot be accepted and we, therefore, hold that subject to the construction we have put upon sub section (2) of section 29 both the parts are to be read as one whole and that the words following the conjunction 'and ' "for the purpose of determining any period of limitation" etc. attract the conditions laid down by the opening words of the sub section. As we have pointed out earlier this does not affect the result. We agree that the appeal fails and we direct that it be dismissed with costs. SUBBA RAo J. This appeal by special leave raises the question of true construction of the provisions of section 29(2) of the Indian Limitation Act, 1908 (9 of 1908), in the context of its application to section 116 A of the Representation of the People Act, 1951 (43 of 1951), hereinafter called the Act. The facts relevant to the question raised lie in a small compass and they are not disputed. The appellant was elected to the House of the People from the Mahasamund parliamentary constituency in the State of Madhya Pradesh in the third general elections. The respondents were the other contesting candidates. Respondent 1 filed an election petition before the Election Commissioner of India under sections 80 and 81 of the Act for setting aside the election of the appellant and it was duly referred to the Election Tribunal. The 141 Election Tribunal, by its order dated January 5, 1963, dis missed the election petition. On February 11, 1963, the first respondent preferred an appeal against the said order of the Election Tribunal to the High Court of Madhya Pradesh at Jabalpur. Under sub section (3) of section 116 A of the Act every appeal under Ch. IVA of the Act shall be preferred within a period of thirty days from the date of the order of the Tri bunal under section 98 or section 99 thereof. Admittedly, the appeal was filed more than 30 days from the said order. If the time requisite for obtaining a copy of the order of the Tribunal was excluded, the appeal was filed within 30 days; but if in law it could not be excluded, the appeal would certainly be out of time. The appellant contended before the High Court that respondent I was not entitled in law to exclude the time so taken by him in obtaining a copy of the order of the Tribunal, but that plea was rejected by the High Court. On merits, the High Court held that the appellant had committed two acts of corrupt practice as defined by section 123(4) of the Act and on that finding it declared the election of the appellant void. It is not necessary to go into the details of the judgment ofthe High Court given on the merits of the case,as nothingturns upon them in this appeal, for the learned,counsel confined his argument only to the question of limitation. The present appeal has been preferred by the appellant against the said order of the High Court setting aside his ,election. The only question, therefore, is whether for the purpose of computing the period of 30 days prescribed under section 116A (3) of the Act the provisions of section 12 of the Limitation Act can be invoked. Mr. Pathak, learned counsel for the appellant, in an ela borate argument placed before us the different aspects of the question raised, and I shall deal with his argument in the appropriate context in the course of my judgment. It would be ,convenient at the outset to read the relevant provisions of the Act and those of the Limitation Act. 142 The Representation of the People Act, 1951. Decision of the Tribunal Section 98. At the conclusion of the trial of an election petition the Tribunal shall make an order: (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or Section 116 A. (1) An appeal shall lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. (2)The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. (3)Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satis fied that the appellant had sufficient cause for not preferring the appeal within such period. The Indian Limitation Act, 1908 Section 29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the 143 purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in section 4, section 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. Section 12. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. (3)Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded. Section 116 A of the Act confers a right of appeal against an order of the Tribunal under section 98 or section 99 thereof; sub s.(3) thereof prescribes a period of limitation of 30 days for preferring such an appeal. Section 29 of (the Limitation Act attracts, by fiction, the provisions of section 3 thereof to an appeal described in section 29 of the said Act; with the result, the provisions of sub sections (2) and (3) of section 12 of the Limitation Act are attracted thereto; and if those sub sections were attracted in computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the decree or order or judgment on which it is founded shall be excluded. Learned counsel for the appellant, therefore, contends that section 29 of the Limitation Act does not apply to an appeal under section 116 A of the Act. The first argument of learned counsel is that for invoking sub s.(2) of section 29 of the Limitation Act the necessary condition is that the First Schedule thereto shall prescribe a period of limitation for an appeal and that a special law shall prescribe for the same type of appeal a different period of limitation and that, as in the 144 present case the First Schedule has not prescribed any period of limitation to an appeal under section 116 A of the Act against an order of the Tribunal, sub section (2) of section 29 of the Act is not attracted. This argument is met by learned counsel for the respondents in two ways, namely, (i) that the First Schedule to the Limitation Act has prescribed a period of limitation for such an appeal, and (ii) that sub section (2) will apply even to a case where the First Schedule to the Limitation Act has not prescribed any period of limitation for an appeal, but a special law prescribed a period of limitation for such an appeal. I shall proceed to consider the two limbs of the argument separately. Has the First Schedule to the Limitation Act prescribed a period of limitation for an appeal against an order of an Election Tribunal under section 98 or section 99 of the Act? Article 156 of the First Schedule to the Limitation Act says that to an appeal under the Code of Civil Procedure, 1908, to a High Court, except in the cases provided for by article 151 and article 153, the period of limitation is 90 days from the date of the decree or order appealed from; and article 151 referred to in article 156 provides for an appeal against a decree or order of any of the High Courts of Judicature at Fort William, Madras, and Bombay, or of the High Court of Punjab in the exercise of its original jurisdiction. What does the expression "under the Code of Civil Procedure" in article 156 of the First Schedule to the Limitation Act connote? Does it mean that a right of appeal shall be conferred under the Code of Civil Procedure, or does it mean that the procedure prescribed by the said Code shall apply to such an appeal? A comparison of the terms of article 156 and article 151 indicates that the emphasis is more upon the procedure applicable to an appeal than on 'the right of appeal conferred under an Act. The heading of the first column in the First Schedule to the Limitation Act is "Description of appeal". The phraseology used in article 156 describes the nature of the appeal in respect of which a particular period of limitation is prescribed. It does not refer to a right conferred under the Code of Civil Procedure, but only describes the appeal with reference to the procedure applicable thereto. Though the word "under" may support the contrary view, the reference to 145 article 151 therein detracts from it. Article 151 is an exception to article 156, indicating thereby that, but for the exception article 156 will apply to an appeal covered by article 151: that is to say, an appeal under article 151 is deemed to be an appeal under the Code of Civil Procedure. Though a right of appeal is conferred under the Letters Patent, it is deemed to be an appeal under the Code of Civil Procedure, because the Code of Civil Procedure governs the said appeal. As Rajamannar, C.J., observed in Kandaswami Pillai vs Kannappa Chetty(1), "It is well established that the Limitation Act and the Code are to be read together, because both are statutes relating to procedure and they are in pari materia and, therefore, to be taken and construed together as one system as explanatory of each other." So construed it may reasonably be held that article 156 provides for an appeal governed by the procedure prescribed by the Code of Civil Procedure. This view was accepted by the Calcutta High Court as early as 1886 in Aga Mahomed Hamadani vs Cohen(1). There, under section 49 of the Burma Courts Act (XVII of 1875), where the amount or value of a suit or proceeding in the Recorder 's Court exceeded Rs. 3,000, and was less than Rs. 10,000, an appeal lay to the High Court. Under section 97 of the said Act, "save as otherwise provided by this Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April 1872, be deemed to have been in force throughout British Burma". Section 540 of the Civil Procedure Code of 1882, which was in force at that time, read: "Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts." (1) A. T. R. 134 159 S.C. 10. (2) Cal. 146 The effect of this provision of the Code on the Burma Courts Act was that where an appeal was not expressly excluded by any special Act, an appeal lay to whatever court which under the enactment in force was the appropriate court. But this section was overborne by the Burma Courts Act to the extent it conferred a right of appeal from the Recorder 's Court to the High Court subject to certain conditions, for section 49 of the Burma Courts Act had taken away the right of appeal of value under a prescribed amount and conferred such a right, when the subject matter of the appeal was between two prescribed amounts, from the decree of the Recorder 's Court to the High Court. It is, therefore, not correct to say, as contended by the learned counsel, that a right of appeal was conferred under section 540 of the Code of Civil Procedure, 1882. After the passing of the Burma Courts Act, a right of appeal was, conferred under section 49 of that Act and not under section 540 of the Code. It was contended before the Calcutta High Court, as it is now contended before us, that article 156 of Schedule 11 of the Limitation Act did not apply to an appeal under the Burma Courts Act, on the ground that the said appeal was not an appeal under the Code of Civil Procedure. The learned Judges observed thus, at p. 224: "Now, what is meant by an appeal under the Civil Procedure Code? A particular appeal was given by the Burma Courts Act and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had not been given by the Burma Courts Act then section 540 of the Civil Procedure Code would have been sufficient to give it, provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure, The Limitation Act, Schedule 11. article 156, when it speaks of the Civil Pro cedure Code is, on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights: and the 147 natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure is concerned. " It is manifest from this passage that the learned Judges did not repel the contention on the ground that the right of appeal was conferred by section 540 of the Code of Civil Proce dure, but expressly for the reason that the natural meaning of the relevant expression in article 156 of Sch. 11 of the Limitation Act was that the appeal mentioned therein was one governed by the Code of Civil Procedure. This decision was followed by a Division Bench of the Madras High Court in Ramaswami Pilai vs The Deputy Collector of Madura(1). The learned Judges, Abdur Rahim and Oldfield, JJ., held that article 156 of the Limitation Act (IX of 1908) applied to appeals filed under section 54 of the Land Acquisition Act (1 of 1894). The right of appeal was conferred under the Land Acquisition Act, but the procedure prescribed by the Code of Civil Procedure governed that appeal. The same argument now raised before us was raised, but was repelled. After citing the relevant part of the passage from the judgment of the Calcutta High Court extracted above, the learned Judges stated at p. 55 thus: "It seems to us that this is the correct interpretation of article 156. There seems to be no good reason for saying that an appeal under the Civil Procedure Code means only an appeal the right to prefer which is conferred by the Code itself. On the other hand it would not be straining the language of the article too much to hold that an appeal, the procedure with respect to which, from its inception to its disposal, is governed by the Civil Procedure Code, may rightly be spoken of as an appeal under the Code. " Then the learned Judges referred to article 151 of the Limita tion Act and concluded thus: (1) (1919) 1 L. R. 148 "That also tends to show that what is meant by the legislature is appeals, the hearing and disposal of which is governed by the rules of procedure laid down in the Civil Procedure Code." Though about 77 years have passed by since the decision of the Calcutta High Court and though the Limitation Act was amended a number of times, the Legislature did not think fit to express its dissent from this view by amendment or otherwise. No direct decision has been brought to our notice which has differed from, or even questioned the correctness of, this decision. In this context we may also refer to the decision of the Allahabad High Court in Dropadi vs Hira Lal(1) where it is pointed out) that several Indian enactments, for instance, the Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, confer rights of appeal and direct the application of the provisions of the Code of Civil Procedure to such appeals, but prescribed no period within which such appeals might be filed, the idea being that article 156 of the Limitation Act would furnish the period of limitation for the filing of such appeals. Mr, Pathak, learned counsel for the appellant, brought to our notice a number of decisions which considered the forum to which an appeal shall lie against an order under section 476 of the Code of Criminal Procedure and the procedure to be followed therein. In Nasaruddin Khan vs Emperor(1), where an appeal under section 476 B of the Code of Criminal Procedure from the Court of the Munsif was heard in part by the District Judge, and on the next date of hearing the appellant 's pleader was not present in Court, it was held that the District Judge was entitled to consider that the appeal had been abandoned and to dismiss it under the provisions of Order XLI of the Code of Civil Procedure. In Mt. Abida Khatoon vs Chote Khan(1), the Allahabad High Court held, under similar circumstances, that an appellate court could set aside an order dismissing an appeal for default. The Nagpur High Court in (1) All. (2) Cal. (3)A. I. R. 1956 All. 149 Bholanath Balbhadra Sahai vs Achheram Puran Kurmi(1), held that in such an appeal the appellate Court could exercise its power under 0. XLI, r. 27 of the Code of Civil Pro cedure. In Chandra Kumar Sen vs Mathuria Debya (2 ) , the Calcutta High Court applied to such an appeal the period of limitation prescribed under article 154 of the Limitation Act. It is said that the combined effect of these decisions is that the procedure applicable in an appeal against an order made by a civil court under section 476 of the Code of Criminal Procedure is that prescribed by the Code of Civil Procedure whereas the period of limitation is that prescribed for an appeal under the Code of Criminal Procedure. But the lear ned counsel himself conceded that there is a conflict of decisions on the question whether to an appeal against the order of a civil court under section 476 B of the Code of Criminal Procedure, the civil procedure applies or the criminal procedure applies and, therefore, the only decision which may have some bearing on the question now raised is that in Chandra Kumar Sen vs Mathuria Debya(2). There, an application was filed before the Subordinate Judge for filing of a complaint against the petitioner under section 476 of the Code of Criminal Procedure. That was rejected. The complainant preferred an appeal to the District Judge more than 30 days prescribed under article 154 of the Limitation Act. The learned District Judge held that no question of limitation arose, for the District Judge suo motu could lodge a complaint in the criminal court when an offence in connection with the administration of civil justice came to his notice. On that reasoning he instituted a complaint. The High Court held that the appeal was filed before he District Judge under section 476 B of the Code of Criminal Procedure and that under article 154 of the Limitation Act it should have been filed within 30 days from the date of the order of the Subordinate court. It will be noticed that no argument was raised in that case that the appeal was governed by the Code of Civil Procedure and, therefore, the appropriate article of the Limitation Act was not article 154, (1) A. 1. R. (2) Cal. 150 but article 156 thereof, for the simple reason that whichever article applied the apPeal was clearly barred by limitation. It is not, therefore, permissible to read into the decision the entire argument now advanced before us. The present question was neither raised nor argued in that case. It may, therefore, be safely held that for over 75 years the decision of the Calcutta High Court on the construction of article 156 of the Limitation Act stood the ground. Though it must be conceded that the point is not free from difficulty, we are not prepared to depart from the construction put upon the article as early as 1886 and which was not dissented from all these years. 1, therefore, hold that the expression "appeal under the Code of Civil Procedure" in article 156 of the Limitation Act means an appeal governed by the Code of Civil Procedure. Even so, it is contended that under section 116 A(2) of the Act the High Court, though it has the same powers, jurisdiction and authority of an appellate court governed by the Code of Civil Procedure, is not empowered to follow the procedure prescribed under the Code in respect of receiving the appeals. This argument is contrary to the express terms of sub section (2) of section 116 A of the Act. Under that sub section, "The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction". Under the second part of sub section (2) of section 11 6 A of the Act, a fiction is created, namely, that though a right of appeal is conferred by section 116 A(1) of the Act, the appeal thereunder for the purpose of sub section (2) will be deemed to be an appeal from an original decree passed by a civil court situated within the local limits of its civil apPellate jurisdiction. The first part of the sub section describes the purposes for which the fiction is invoked, namely, the exercise of the powers, jurisdiction and authority and the following of the procedure with respect to such an appeal. The powers, jurisdiction and authority take in the powers, jurisdiction and authority exercisable by an appellate tribunal in regard to various matters prescribed in the Code of Civil 151 Procedure. What does the word "procedure" mean? The procedure must necessarily be the procedure governing such an appeal. It means, inter alia, the manner of receiving an appeal in the court, the preparation of records of the appeal, the posting of the appeal and the manner of its disposal. We find it impossible to exclude from the word "procedure" the filing and receiving of an appeal in the court. If that part was excluded, how could the appeal be received in the High Court? The answer given is that the Government might make rules under section 169(1) of the Act. When section 168(2) confers a statutory power on the High Court to follow the procedure prescribed by the Code of Civil Procedure, we ,cannot invoke the general power of the Central Government to make rules under section 169(1) of the Act. If so, the procedure prescribed by 0. XLI of the Code of Civil Procedure, along with the other relevant provisions of the said Code, equally applies to an appeal filed under section 116 A (2) of the Act. The result is that under section 116 A(2) of the Act, the appeal, by fiction, is equated with an appeal filed under the ,Code of Civil Procedure in the matter of not only the exercise ,of the powers, jurisdiction and authority but also in the matter ,of procedure to be followed from the date of receipt of the :appeal to its final disposal. For the aforesaid reasons, I hold that the special law, namely, the Act, prescribes a period of limitation different from the period prescribed therefor by the First Schedule to the Limitation Act within the meaning of article 29 (2) of the Limitation Act. If so, section 12 of the Limitation Act is attracted, and the 1st respondent was entitled to exclude the time taken by him for obtaining the copy of the order. Even assuming that article 156 of Schedule 1 to the Limitation Act did not prescribe a period of limitation for the kind of appeal under consideration, the question arises whether sub section (2) of section 29 of the Limitation Act would not be appli cable if no period was prescribed by the First Schedule for an appeal created by a special law but the special law pres cribed a period of limitation for the same. The history of this provision throws some light on this question. The first Limitation Act was passed in the year 1859 (Act XIV of 1859). Section 3 of that act provided: 152 "When, by any law now or hereafter to be in force, a shorter period of limitation than that prescribed by this Act is specially prescribed for the institution of a particular suit, such shorter period of limitation shall be applied notwithstanding this Act. " The provisions of the Act of 1859 were repealed by the Limi tation Act IX of 1871. Section 6 of that Act, which is relevant to the present inquiry, read: "When, by any law not mentioned in the schedule hereto annexed, and now or hereafter to be in force in any part of British India, a period of limitation differing from that prescribed by this Act is especially prescribed for any suits, appeals or applications, nothing herein contained shall affect such law." The Limitation Act of 1871 was replaced by Act XV of 1877. Section 6 of this Act read: "When, by any special or local law now or hereafter in force in British India, a period of limitation is especially prescribed for any suit, appeal or application, nothing herein contained shall affect or alter the period so prescribed." The same provision was retained in the Limitation Act IX of 1908, but it was amended in the year 1922 in the present form. Before the amendment of 1922, there was a difference of view on the following questions, namely, (1) whether the general provisions of the Limitation Act, where the word "prescribed" alone without reference to any Act, was used or even where that word was not used, would be applicable to special or local laws, and (2) whether the general provisions of the Limitation Act did not apply at all to the periods of limitation prescribed by special or local laws. Decisions holding that the general provisions of the Limitation Act did not apply to periods of limitations prescribed by other laws relied upon the expression "affect or alter" used in the section as it then stood. Section 29 of the Limitation Act was amended to remove the conflict with a view to make the 153 general provisions applicable to the period of limitation prescribed by special or local laws. A comparison of the phraseology of the earlier sections shows that while section 3 of the Limitation Act of 1859 used the words "shorter period", section 6 of the Act of 1871 used the expression "differing", and section 6 of the Acts of 1877 and 1908 removed both the expressions. The result was that section 6 of the Act of 1871 saved all the special or local laws which prescribed a special period of limitation from the operation of the provisions of the Limitation Act. As the section then stood, it applied to all special or local laws prescribing a ,period of limitation whether the Limitation Act prescribed any period of limitation or not for suits or appeals similar to those governed by special or local laws, or where the period of limitation so prescribed by special or local laws was shorter or longer than that prescribed in the Limitation Act. Can it be said that by the Amending Act of 1922, a conscious departure was made by the Legislature to impose a condition for the application of sub section (2) of section 29, namely, that a period of limitation should have been expressly prescribed by the First Schedule to the Limitation Act in respect of a suit or appeal governed by the special or local law? There was no occasion for such a departure. To put it in other words, apart from resolving the conflict, did the Legislature intend to exclude a particular category of proceedings governed by special or local laws from the operation of the benefit conferred by sub section (2) of section 29? No justification was suggested for such a departure and we find none. The problem may be approached from a different perspective. The scheme of the Limitation Act may be briefly stated thus: The preamble to the Act shows that it was passed to consolidate and amend the laws relating to the law of limitation in respect of the proceedings mentioned in the Act. It applies to the whole of India. Part 11 comprising sections 3 to 11 deals with limitation of suits, appeals and applications; Part III comprising sections 12 to 25 provides for computation of periods of limitation; and Part V deals with savings and repeals. We are not concerned with Schedules II and III for they have been repealed. The First Schedule consists of three divisions: the first division provides for the period 154 of limitation for suits; the second division, for appeals; and the third division, for applications. Article 120 found in the first division prescribes for a suit for which no period of limitation is prescribed elsewhere in the Schedule; article 181 in the third division prescribes for application for which no period of limitation is prescribed elsewhere in the Schedule or by section 48 of the Code of Civil Procedure. But no such residuary article is found in the second division dealing with appeals. The Limitation Act was conceived to be an exhaustive code prescribing for every conceivable proceeding, whether suit, appeal or application, subject to the saving in Part V thereof. It follows that there is no period of limitation for an appeal not provided for in the second division unless the special or local law prescribes for it. If so, it may reasonably be said that, as the First Schedule of the Limitation Act prescribes no limitation for an appeal not covered by articles 150 to 157 thereof, under the Limitation Act such a suit or appeal can be filed irrespective of any time limit. With this background let us revert to the construction of section 29(2) of the Limitation Act. When the First Schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time limit to it, can it not be said that under the First Schedule of the Limitation Act an appeal can be filed at any time, but the special law by limiting it provides for a different period? While the former permits the filing of an appeal at any time, the latter limits it to the prescribed period. It is, therefore, different from that prescribed in the former. 'This problem was considered by a Division Bench of the Bom bay High Court, consisting of Chagla C.J., and Gajendra gadkar J., in Canara Bank Limited, Bombay vs The Warden Insurance Company, Ltd., Bombay(1). Therein, Chagla C.J., speaking for the Court, observed at p. 1086 thus: "The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the first Schedule to the Limitation Act. It may also be different in the (1) I. L. R. 155 sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the first Schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act. We are conscious of the fact that the language used by the Legislature is perhaps not very happy, but we must put upon it a construction which will reconcile the various difficulties caused by the other sections of the Limitation Act and which will give effect to the object which obviously the Legislature had in mind, because if we were to give to section 29 (2) the meaning which Mr. Adarkar contends for, 'then the result would be that even section 3 of the Limitation Act would not apply to this special law. The result would be that although an appeal may be barred by limitation, it would not be liable to be dismissed under section 3". A Full Bench of the Allahabad High Court, in Sehat Ali Khan vs Abdul Qavi Khan(1) also dealt with this question. The learned Judges expressed conflicting views. Mootham C.J., assumed that the first limb of the sub section ,did not apply to a case where the schedule omitted to provide for a period of limitation. On that assumption he proceeded to consider the second limb of the sub section. DayalJ. took the view that for the application of the first part of s.29(2) the period of limitation should have been prescribed by the First Schedule. Agarwala J., agreed with the view of the Bombay High Court. Bhargava J., agreed with the view expressed by Mootham C.J., and Upadhya J., did not agree with the view of the Bombay High Court. A Division Bench of the Madhya Pradesh High Court in Beharilal Chaurasiya vs Regional Transport Authority (2) (1) I. L.R. (1956) 2 All. 252. (2) A. 1. R. 1961 M. P. 75,77. 156 agreed with the view expressed by the Division Bench of the Bombay High Court. Dixit C.P., speaking for (the Court, stated thus: "A special law may provide a period of limitation and schedule I may omit to do so. None the less the special law would be different from the Limitation Act. Section 29 (2) of the Limitation Act is not very happily worded. It must be construed so as to avoid absurdity. The, expression 'a period of limitation different. from the period prescribed therefor by the first schedule ' occurring in section 29 (2) cannot be construed as meaning that schedule 1 must also positively prescribe the period of limitation. Such a construction would not be in accordance with the intention of the Legislature and would lead to an absurdity. " The learned Chief Justice proceeded to consider the ano malous position that would arise if a literal construction was given to the provisions of the first part of the section. This Court, in Kaushalya Rani vs Gopal Singh (1), had to. consider this question incidentally in the context of the application of section 29(2) of the Limitation Act to an application for special leave to appeal against an order of acquittal under sub section (3) of section 417 of the Code of Criminal Procedure. This Court held that section 5 of the Limitation Act would not apply to an application for special leave to appeal under sub section (3) of section 417 of the Code of Criminal Procedure. The Limitation Act does not provide any period of limitation for an application for special leave to appeal from an order of acquittal under the said section. If that be so, on the argument of learned counsel for the appellant, section 29 of the Limitation Act could not be invoked. But this Court held that section 29(2) of the Limitation Act applied, but that section excluded the application of section 5 to the said application. Sinha C.J., speaking for the Court, observed: "Hence it may be said that there is no limitation prescribed by the Limitation Act for an (1) A. I. R. 157 appeal against an order of acquittal at the instance of a private prosecutor. Thus, there is a difference between the Limitation Act and the rule laid down in section 417 (4) of the Code in respect of limitation affecting such an application. Section 29(2) is supplemental in its character in so far as it provides for the application of section 3 to such cases as would not come within its purview but for this provision." 'This observation clearly supports the position that section 29(2) would apply even to a case where a difference between the special law and the Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act. 1, therefore, hold that in the instant case the Act provides a period of limitation different from that prescribed therefor by the First Schedule to the Limitation Act and, therefore, it is governed by section 29(2) of the said Act. Even if my view on the construction of the first limb of section 29 of the Limitation Act were wrong, it would not help the appellant, for his case squarely falls within the scope of the second limb of the section. , For convenience I restate the relevant part of the section: ". . . and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or focal law. " Learned counsel for the appellant relied upon the conjunc tion "and" in support of his contention that the use of that conjunction makes the following sentence a limitation on the first part of the section. He further argues that if it is not a limitation but an independent clause, it will lead to the anomaly of sections 4 to 25 of the Limitation Act applicable to proceedings failing under the first part and only some of the provisions thereof, namely, sections 4, 9 to 18 and 22 apply ing to the second part of the section. Apart from the grammatical construction, which I will consider presently, I do not see any anomaly in sections 4 to 25 of the Limitation Act applying to the first part of the section and only some of 158 them applying to the second part thereof. Those proceedings to which the first part applies, by fiction the period prescribed in the special or local law is treated as prescribed in the First Schedule itself. There cannot possibly be any reason why section 3 of the Limitation Act in toto shall not apply to them. But the same cannot be said in the case of the proceedings of a different type not provided for in the First:Schedule. So, the Legislature specified the sections applicable tothem and excluded the general sections which relate tolegal disabilities, acknowledgements, part payments and others specified therein. The Legislature may_ have thought that such articles are not generally appropriate to proceedings under special or local laws for reliefs not provided for in the First Schedule. Now, coming to the construction of the section, the relevant rule of construction is well settled. "A construction which will leave without effect any part of the language of a statute will normally be rejected"; or to put it in a positive form, the Court shall ordinarily give meaning to every word used in the section. Does the conjunction "and" make the following clause a limitation on the preceding one? No rule of grammatical construction has been brought to our notice which requires an interpretation that if sentences complete by themselves are connected by a conjunction, the second sentence must be held to limit the scope of the first sentence. The conjunction "and" is used in different contexts. It may combine two sentences dealing with the same subject without one depending upon the other. But, if the interpretation suggested by the learned counsel be accepted, we would not be giving any meaning at all to the word "any" used thrice in the second part of the section, namely "any period", "any suit" and "any special or local law". If the second part is a limitation on the first part, the sentence should read, "for the purpose of determining the period of limitation prescribed for such suit, appeal or application by such special or local law." Instead of that, the use of the word "any" clearly demonstrates that the second. part does not depend upon the first part or vice versa. There is no reason why we should attribute such a grammatical deficiency to the legislature when every word in the second part of 159 the section can be given full and satisfactory meaning. I would, therefore, hold that the second part is an independent provision providing for the aforesaid category of proceedings to which the first part does not apply. This is the view expressed by the majority of the judges of the Full Bench of the Allahabad High Court in Sehat Ali Khan vs Abdul Qavi Khan(1). I agree with the same. It was then said that section 116 A of the Act provided an exhaustive and exclusive code of limitation for the purpose of appeals against orders of tribunals and reliance is placed on the proviso to sub section (3) of that section, which reads: "Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99. Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. " The contention is that sub section (3) of section 116 A of the Act not only provides a period of limitation for such an appeal. but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument. Firstly, section 29(2)(a) of the Limitation Act speaks of express exclusion but there is no express exclusion in sub section (3) of section 116 A of the Act; secondly, the proviso from which an implied exclusion is sought to be drawn does not lead to any such necessary implication. The proviso has become necessary, because, if the proviso was not enacted. section 29(2)(b) of the Limitation Act would have excluded the operation of section 5 of the Limitation Act, with the result that even if a sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. 1, therefore, hold that the proviso to sub section (3) of section 116 A of the Act only restores the power denied to the court under section 29(2)(b) of the Limitation Act. 1) I. L. R. [1956] 2 All. 160 Lastly, it is contended that section 12(2) of the Limitation Act, on its express terms, would not apply to an appeal to the High Court against an order of the Election Tribunal under section 98 of the Act. Elaborating the argument it is said that in order to exclude the time for obtaining a copy of the order appealed against, the original shall be a decree or order within the meaning of section 12(2) or judgment within the meaning of section 12(3) of the Limitation Act and the order under section 98 of the Act is neither a decree nor an order or a judgment within the meaning of the said sub sections of section 12 of the Limitation Act. Reference is made to the defini tions of decree, judgment and order in sub sections (2), (9) and (14) of section 2 of the Code of Civil Procedure, respectively, and it is contended that the order under section 98 of the Act does not fall under any of the said three expressions as defined therein. Under sub section (9) of section 2 of the Code of Civil Procedure, "judgment" is defined to mean the statement given by the judge of the grounds of a decree or order. Sub section (14) of section 2 of the said Code defines "order" to mean the formal expression of any decision of a civil court which is not a decree. It follows from the said definitions that judgment is a statement of the reasons given by the judge and order is the formal expression of his decision. Section 104 of the said Code says, "An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders. " Order XX of the Code deals with the manner of pronouncing a judgment and decree. Under 0. XX, r. 20, of the Code, "Certified copies of the judgment and decree shall be furnished to the parties on application to the Court, and at their expense." Under section 141 of the Code, "The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any court of civil jurisdiction". The effect of these provisions is that a decree is a formal expression of adjudication conclusively determining the rights of parties with regard to all or any of the controversies in a suit, whereas order is a formal expression of any ,decision of a civil court which is not a decree. Judgment is a statement given by the judge of his grounds in respect of ,a decree or order. Ordinarily judgment and order are en 161 grossed in two separate documents. But the fact that both are engrossed in the same document does not deprive the statement of reasons and the formal expression of a decision of their character as judgment or order, as the case may be. With this background let me look at the provisions of s.116 A of the Act. Under sub section (1) thereof, an appeal shall lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. Under section 98 of the Act, "At the conclusion of the trial of an election petition the Tribunal shall make an order (a) dismissing the election petition;or (b) declaring the election of all or any of the returned candidates to be void; or (c)declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to h ave been duly elected. " Part VI of the Act provides for disputes regarding elections , Ch. III thereof prescribes the procedure for the trial of election petitions, and section 90 therein says: "(1)Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. " There is noprovision in the Act defining how the decision should be given. It could not have been the intention of the Legislature that the Tribunal need not give the statement of reasons for its decision. As under section 90 of the Act the Election Tribunal is directed to try election petitions as nearly as may be in accordance with the pro cedure applicable under the Code of Civil Procedure, it is the duty of the Election Tribunal to give a statement of reasons for its decision. It is open to it to issue two documents one embodying the reasons for the decision and the 134 159 S.C. 11. 162 other, the formal expression of its decision: the former will be its judgment and the latter, its order. It may issue both in the same document in which case the judgment as well as the order is embodied in the same document. If so it is manifest that an order made under section 98 of the Act, if it contains also the reasons for it, is a composite document ,satisfying the definition of a judgment as well as that of an ,order and thereby attracting the relevant provisions of section 12 of the Limitation Act. That apart, a different approach to the question raised leads to the same conclusion. Section 12(2) of the Limitation Act does not say that the order mentioned therein shall be only such order as defined in the Civil Procedure Code. If a statute provides for the making of can order and confers a right of appeal to an aggrieved party against that order within a prescribed time, sub section (2) of section 12 of the Limitation Act says that the time requisite for obtaining a copy of such order shall be excluded. The Act em powers the Tribunal to make an order and gives a right of appeal against that order to the High Court. Section 12(2) of the Limitation Act is, therefore, directly attracted without any recourse to the definition of an order in the Code of Civil Procedure. In either view, section 12 of the Limitation Act applies and, therefore, the time taken for obtaining a copy ,of the said order shall be excluded in computing the period ,of limitation. In the result, the appeal fails and is dismissed with costs. RAGHUBAR DAYAL J. I agree that the appeal be dismissed, but for different reasons. I am of opinion that the first part of section 29(2) of the Limi tation Act applies only when a special or local law prescribes a period of limitation for an appeal and when for that particular appeal a period of limitation is prescribed in the First Schedule to the Limitation Act, as omission to prescribe a period of limitation cannot be equated with the prescribing ,of any positive period of limitation within which the appeal should be filed, and that the second part of section 29(2) of the Act is independent of the first part and can apply to cases to which the first part does not apply. I am also of ,opinion that article 156 of the First Schedule applies to appeals 163 which are instituted in view of the right of appeal conferred by any special or local law and not in pursuance of the provisions of section 96 C.P.C. I do not elaborate my views as I agree with what my learned brother Mudholkar J., has said in construing the first part of section 29 (2) of the Limitation Act and article 156 of the First Schedule and agree with my learned brother Ayyangar J., with respect to his construction of the second part of section 29(2). The proviso to section 116(a) of the Representation of the People Act gives discretion to the High Court to entertain an appeal presented after the expiry of 30 days from the date of the order of the Tribunal in case it is satisfied that there is sufficient cause for the late presentation of the memorandum of appeal. The respondent has applied in this Court for the condonation of the delay in filing the appeal in the High Court. In the circumstances of the case, I consider it a fit case for condoning the delay. There was a difference of opinion in the High Courts regarding the applicability of section 12 of the Limitation Act to such appeals. The delay was of a few days. The Election Tribunal passed the order on January 5, 1963 and the appeal was filed on February 11, 1963. A party can reasonably desire to obtain a copy of the judgment for deciding, after studying it, whether it is worthwhile appealing against it, and if so. on what grounds. I am satisfied that there was sufficient cause for the respondent 's not presenting the appeal within the period of limitation. I therefore condone the delay and confirm the order of the High Court. MUDHOLKAR J. While I agree with my brother Subba Rao J. that the appeal should be dismissed, I regret my inability to agree with all the reasons which he has given. I need not recapitulate the facts which have been set out fully in the judgment prepared by my learned brother but I would only state the point which we have to consider in this appeal. The point is whether for the purpose of computing the period of 30 days prescribed by section 116A(3) of 164 the Representation of the People Act, 1951 under which an appeal can be preferred from the decision of the Election Tribunal, the provisions of section 12, sub section (2) of the Limita tion Act, whereunder the time requisite for obtaining a copy of the decree and the day on which the judgment complained of was pronounced can be excluded can be pressed in aid. It was contended before us that the appeal should be deemed to be one under the Code of Civil Procedure, in which case it would fall under article 156 of the First Schedule to the Limi tation Act, and that though a shorter period of limitation is prescribed for it by the Representation of the People Act the provisions of section 12(2) of the Limitation Act would be attracted by reason of the provisions of cl. (a) of section 29(2). Reliance was ;)laced in this connection on the first limb of section 29(2). Alternatively it was argued that the first limb of section 29, sub section (2) of the Limitation Act would also apply to an appeal under the Representation of the People Act even though it does not fall under article 156 of the Limitation Act since a different period of limitation was prescribed for it from that prescribed for an appeal in the First Schedule of the Limitation Act and that, therefore, cl. (a) thereof would attract section 12(2) of the Limitation Act. Finally it was argued that even if the appeal cannot be regarded as one falling within the first limb of section 29(2) sub section (2) of section 12 would still apply because the second limb of sub section (2) of section 29 is wide enough in its ambit to include a suit, appeal or application for which no period of limitation is prescribed in the first schedule but a period of limitation has been prescribed by a special or local law. My learned brother has held in his: judgment that an appeal provided for by section 116A of the Representation of the People Act would be an appeal underthe Code of Civil Procedure and thus fall under the first column of article 156 of the First Schedule of the Limitation Act. He has also held that the words "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule" occurring in the first limb of sub section (2) of section 29 would include a suit or an appeal ' even though it is not of a type for which a period of limitation is prescribed in the First Schedule because it is enough if the special law prescribes for such an appeal a period 165 which is different from any period prescribed in the First Schedule. I regret I am unable to agree with either of these views. Finally, however, my learned brother has construed the second limb of sub section 2 of section 29 "and for the purpose of ,determining any period of limitation prescribed for any suit, appeal or application by any special or local law" as being wide enough to include a suit, appeal or an application under a special or local law which is of a type for which no period of limitation is prescribed in the First Schedule. With this last conclusion I agree. In my judgment what he has said on the last point is enough for the purpose of disposing of the appeal in the way proposed by him. As, however, I do not agree with what he has said on the first two points I must briefly indicate my reasons for coming to different conclusions. In support of the conclusion that article 156 applies, my learned brother has relied upon the decision in Aga Mahomed Hamadani vs Cohen (1) which was followed by the Madras High Court in Ramasami Pillai vs the Deputy Collector of Madura(1). The first of these two cases was one from what was then British Burma. Under section 49 of the Burma Courts Act, 1875 (XVII of 1875) an appeal Jay to the High Court from the decision in a suit or proceeding before the Recorder 's Court in which the amount or value was not less than Rs. 3,000 and was not more than Rs. 10,000. Section 97 of that Act said: "save as otherwise provided by this Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April, 1872, be deemed to have been in force throughout British Burma. " Section 540 of the Code of Civil Procedure, 1882 which was in force at that time read thus: "Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees of the Courts exercising original jurisdiction to the Courts authorised to hear appeals from the decisions of those courts." (1) (1886) 1. L. R. (2) (1919) 1. L. R. 166 The question which the High Court had to consider in that case was whether the appeal could be said to be in time as it fell to be governed by article 156 of the First Schedule to the Limitation Act. For deciding this matter the High Court proceeded to consider what was meant by an appeal under the Code of Civil Procedure. While dealing with the matter the High Court observed: "A particular appeal was given by the Burma Courts. Act and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had not been given by the Burma Courts Act then section 540 of the Civil Procedure Code would have been sufficient to give it. provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure. The Limitation Act, Sch. 1, article 156 when it speaks of the Civil Procedure Code is, on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights: and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure, is concerned. " Referring to this, my learned brother has observed: "It is manifest from this passage that the learned judges did not repel the contention on the ground that the right of appeal was conferred by section 540 of the Code of Civil Procedure, but expressely for the reason that the natural meaning of the relevant expression in article 156 of Sch. 1 of the Limitation Act was that the appeal mentioned therein was one governed by the Code of Civil Procedur e." That is true. It is, however, not material for my purpose to consider whether or not the High Court was right in hold ing that the appeal before it was under the Burma Courts 167 Act. I would assume that the High Court was right but it is necessary to point out that the provisions of section 29 of the Limitation Act as then in force did not come for considera tion in that case. The question would then be whether its view that an appeal, though not provided by the Code of Civil Procedure, would yet be deemed to be an appeal under the Code for the purpose of article 156 of the Limitation Act,,, was right. With respect I do not think that there was any warrant for holding that an appeal which was not given by, the Code would still be one under the Code merely because the procedural provisions thereof would govern its course . Where the right of appeal is given by some other law, the appeal must be regarded as one under that law and not under the Code. I see no valid reason for construing the words 'under the Code of Civil Procedure ' as meaning 'governed in the matter of procedure by the Code of Civil Procedure '. For, that is, in effect, what the High Court has done in this case. By reading the article in the way it has done the High Court has virtually construed the only provision in the Limitation Act dealing with normal civil appeals; to the High Court as a residuary article which would take in all appeals by whatever law they may be provided, merely because the procedure relating to appeals contained in the Code of Civil Procedure was applicable to them. This would in my judgment go against the plain intended of the Legislature. Indeed, while a right to institute a suit or make an application is a wider kind of right. there can be no right of appeal unless some statute confers it. That is why the Legislature has expressly enacted residuary provisions, articles 120 and 180, for suits and applications respectively in the Limitation Act. The First Schedule is divided into three divisions. Article 156 is one of the eight article& contained in the second division which deals with appeals. The first division of that schedule deals with suits. There, provision is made for a variety of suits including some under special laws. but it was realised that it could not be exhaustive. Therefore, article 120 was provided therein, which deals with "Suits for which no period of limitation is provided elsewhere in this schedule. " The third division of the First Schedule deals with applications of different kinds. Article 181 makes provision for applications for which no 168 period of limitation is prescribed elsewhere in the Schedule. In the second division, however, which deals with appeals, there is no provision analogous to article 120 and article 181. Four of the eight articles deal with appeals under the Code of Criminal Procedure and four with appeals other than those under the Code of Criminal Procedure. As already stated, only one of these articles deals with normal civil appeals to the High Court, namely, article 156. It is not couched in language similar to that used in article 120 and article 181. Would we then be justified in reading the first column of article 156 to mean the same thing as is said in the first column of articles 120 or 181? The Legislature knew that appeals have been provided by various special laws; but it made no provision for such appeals in this Schedule appa rently for the reason that a law which confers a right of appeal is expected to provide for the period of limitation for such an appeal. That seems to be the explanation for the absence of a residuary provision for appeals. The first difficulty, therefore, in interpreting article 156 in the way contended for by the respondents is that where a different period of limitation for appeal is expressly pro vided by a special law article 156 will not in terms be attracted. To bring such an appeal under it would clearly go against the express intention of 'the Legislature which was to confine that article to appeals under the Code of Civil Procedure. The next difficulty is that the entry deals with appeals "under" the Code of Civil Procedure and not appeals arising out of proceedings to which the Code of Civil Procedure applies. Nor again, does it include an appeal which is only deemed to be under the Code of Civil Procedure. Be it noted that so far as proceedings under the Representation of the People Act are concerned, the whole of the Code of Civil Procedure does not apply but only so much of it as is expressly made applicable by the provisions of the Representation of the People Act. It was said that if the provisions of 0. XLI, of the Code of Civil Procedure were not applicable to an appeal under the Representation of the People Act there would be no provision whereunder the party could at all file an appeal. It seems to me, however, that there can be no difficulty at all in this matter as every 169 High Court has made rules partly under the Constitution and partly in exercise of its inherent power to make suitable provisions in regard to this and allied matters. The Calcutta High Court, however, does not appear to have given ,the full consideration in Cohen 's case(1) to the ambit of article 156 and that is another reason why I find myself unable to accept the correctness of the view it has taken in that case. It was then said that the view should be accepted on the ground of stare decisis. In this connection it was pointed out thatso far no court has dissented from that view and indeed theview was fully accepted in Ramasami Pillai 's .case(1) bythe Madras High Court. In so far as the principle of stare decisis is concerned it is nothing more 'than,. as observed by Dowrick in Justice According to the English ,Common Lawyers (1961 ed. p. 195), a precipitate of the notion of legal justice. In other words it is the principle that judicial decisions have a binding character. But in India the position is not quite the same. Here the decision of a High Court is not even always binding upon it in the sense that it can be reconsidered by a Full Bench. No doubt its decision may bind all courts subordinate to it as also all Judges sitting singly or in division benches of the High Court. It is also true that a decision of a Division Bench of a High Court is binding on every other Division Bench of that High Court but there again there have been cases where one Full Bench has reconsidered the decision of an earlier Full Bench. In any case the decision of a High Court has no more than persuasive character in so far as this 'Court is concerned. In that view the decision of the Calcutta High Court, even though it may not have been dissented from since the time it was rendered, cannot, in the proper sense of the term be regarded as stare decisis. What could be stare decisis in this Court would be its own previous ,decisions. But even here instances are not wanting where, unlike perhaps the House of Lords, we have considered ourselves free to go back on previous decisions. (See The Bengal Immunity Company Limited vs The State of Bihar ors. 3 Finally, even where a decision has not been (1) Cal. 221 (2) Mad. 51 (3) 170 dissented from for a long time, but has on the other hand been followed, it is not entitled to be treated as immutable, particularly where it deals only with a question appertaining to the adjective law, such as the law of limitation. There may be a great deal to be said in favour of not disturbing even erroneous decisions affecting substantive rights to property which have stood undisturbed for a long time on the ground that such a course may unsettle existing titles to property. But this or similar considerations which would justify leaving such decisions undisturbed would not stand in the way of overruling an erroneous decision on a matter appertaining to the adjective law however ancient the decision may be(1). Therefore, I do not feel myself persuaded to hold that the present appeal can be regarded as of a type falling within the first column of article 156 of the First Schedule to the Limitation Act. In order to deal with the second ground given by my learned brother it is necessary to reproduce the provisions of section 29, sub section (2) of the Limitation Act. They run thus: "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law . (a) the Provisions contained in section 4., sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply." (1) See Allen, Law in the, making (5th edn.) p. 209 fn. 3 171 While expressing the view that the legislature has not ex pressed itself happily while enacting this provision he has agreed with the view taken in Canara Bank Ltd. vs The Warden Insurance Co., Ltd., Bombay(1), which was followed by the High Court of Madhya Pradesh in Beharilal Chaurasiya vs Regional Transport Authority(1). In that case the Bombay High Court has held that article 156 is attracted on the ground that the period provided by the special law is different from that contained in the First Schedule. With great respect to the learned Judges, I find it difficult to strain the language used in the first limb of section 29 (2) in this manner. The legislature has in clear terms spoken of cases in which a special or local law has prescribed for a suit, appeal or an application a period of limitation "different" from that prescribed by the First Schedule. Now, the governing words are "suit, appeal or application". Therefore, what has to be seen is whether a suit, appeal or application under a particular local or special law is of a kind similar to one for which a period of limitation is prescribed in the First Schedule. The first limb of sub section (2) of section 29 is concerned only with proceedings of this kind, that is, proceedings under special or local law for which a period of limitation is provided in the First Schedule. If for such a proceeding the period to be found in the First Schedule is different from that prescribed under a special or local law certain consequences will follow under the provision. I do not think that any inconvenience would be caused by giving literal and natural interpretation to the expression used by the legislature in the first portion of sub section (2) of section 29 because cases of other kind can easily come under the second portion thereof. Since I agree with my learned brother about what he has said regarding the second limb of sub section (2) of section 29 the aapeal must be dismissed with costs as proposed by him. (1) I. L. R. Appeal dismissed. (2) A.I.R. 1961 M. P. 75.

The plaintiffs who were commission agents purchased piecegoods according to defendant 's instructions and stored a portion of the goods in a godown in Bombay pending receipt of a permit from the Government authorities for consigning the same to the defendants. Before the goods could be despatched, a big explosion occurred in the Bombay Harbour and the goods stored were destroyed either by the fire or the explosion. A few months later the Governor General promulgated the Bombay Explosion (Compensat,ion) Ordinance, 1944, which provided, inter alia, (i) that the Government shall pay a compensation of 50 per cent. of the damage caused in respect of uninsured goods, and the entire damage in respect of insured goods; and (ii) that no person shall have or be deemed ever to have had, otherwise than under the Ordinannce any rights whether in contract or in tort or otherwise to any compensation for damage to or loss of property arising out of the explosion and no suit or other legal proceeding for any such compensation or damage shall be maintainable in any civil courts. The plaintiffs re ceived 50 per cent of the value of the destroyed goods as they 980 were not insured, and, alleging that as agents they had the right to be indemnified by the defendants, sued the latter for recovery of the remaining 50 per cent of the value of the goods. The defendants pleaded, and it was found as a fact, that they had instructed the plaintiffs, and the latter had agreed, to insure the goods but had omitted to do so, and they claimed that inasmuch as they would have been entitled to receive the full value of the goods as compensa tion under the Ordinance if the plaintiffs had insured, they were entitled to set off or counter claim the value of the goods as damages caused to them by the neglect or breach of duty of the plaintiffs. Held per KANIA C.J. and DAS J. (PATANJALI SASRI J. dissenting). (i) As full compensation under the Ordinance was payable on proof of the existence of a fire insurance policy irrespective of the terms of the policy, and the non recovery of half the value of the goods from the Govern ment under the Ordinance was due to the obsence of a fire insurance policy, the loss to the defendants arose directly from the neglect or breach of duty of the plaintiffs to insure the goods as they had been instructed and agreed to do; intervention of the Ordinance did not break the chain of causation or make the loss remote or indirect; the Ordinance did not create any new liability but only quantified the damages; and the fact that it did not exist at the time of the explosion and could not have been in the contemplation of the parties was irrelevant for deciding the question of liability; (ii) the plea of the defendants was not barred by the Ordinnance inasmuch as their cause of action against the plaintiffs was misconduct of the latter in the business of their agency, and this cause of action was completed by the averment that there was a dnty or agreement to insure, that there was failure to per. form that duty and that the fail ure had caused damage to the defendants, and the quantum of the damages was not a part of the cause of action. Per PATANJALI SASRI J. (i) The defendants ' inability to recover the full value of the goods from the Government under the Ordinance did not arise directly and naturally in the usual course of things from the plaintiffs ' failure to insure, but from independent and disconnected events, name ly, the Government 's scheme for compensation, embodied in the Ordinance, the agreement with the insurance companies regarding contribution and the consequent discrimination made by the Government between insured and uninsured goods. The Ordinance did not, displace the ordinary rules of law as to remoteness of damage or amend or abrogate any terms in the fire insurance policies and it was further difficult to see how by virtue of an Ordinance passed some months after the explosion, the right to damages could become enlarged. The broad principle of restitutio in integrum upon which the assessment of the quantum of damages is based cannot be carried to its utmost logical results but must be qalified by the rule of remoteness 981 (ii) The bar under the Ordinance was not based upon the nature of the cause of action but upon the damage or loss being "due to or in any way arising out of" the explosion and the claim of the defendands was clearly barred. In any event the defendants cannot be allowed to claim that the loss of the goods was explosion damage so as to bring the case under section 14 and at the same time contend that the loss was not due to or did not in any way arise out of the explo sion in order to avoid the bar under section 18.In re an Arbitration between Polemis and Another and Furness Withy & Co. Ltd. , Weld Blundell vs Stephens , Monarch Steamship Co. Ltd. vs Karlshamns Oljefabriker , Hadley vs Baxendale (9 exhibit Livingstone vs Rawyards Coal Co. , British Westinghouse Electric and Manufactur ing Co. Ltd. vs Underwood Electric Railways Co., London , Liesbosch (owners) vs Edison (owners) ; , Smith Hogg & Co. Ltd. vs Black Sea and Baltic General Insftrance Co. Ltd. , Standard Oil Co. of New York vs Clan Line Steamers Ltd. [1924] A.G. 100 referred to.

vil Appeal No. 2 15 152 (NM) of 1986 etc. From the Order dated 8.5.1984 of the Customs Excise and Gold Control/Appellate Tribunal, New Delhi in Appeal No. 2530/83 D & Cross objections 27/84, Order No. 258/84 D and Misc. Order No. 67 84 D. A.K. Ganguli, P. Parmeswaran and Hemant Sharma for the Appellant. Gobinda Mukhoty and P.N. Gupta for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') against the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ') dated 8th May, 1984. The appeal is by the revenue. The respondent, Decent Dyeing Co., was dyeing acrylic yarn on job charges. The acrylic yarn was being received by the respondent from traders in the market or from the manufacturers of hosiery goods and were returning the same to them after completing the required process. The respondent was paying duty at the rate of Rs. 10 per kg. in terms of notification No. 125/75 CE dated 12th May, 1975 on the presumption that base yarn had discharged duty liability before it was received for dyeing. A show cause notice requiring the respondent to show cause to the Assistant Collector of Central Excise as to why central excise duty amounting to Rs.4,300 at Rs.24 per Kg. leviable on 180 kgs. (as applicable to base yarn under tariff item 18(i) of the Central Excise Tariff) should not be demanded under rule 9(2) of the Central Excise Rules, 1944, was issued to the respondent. The Assistant Collector of Central Excise directed the respondent to deposit an amount of Rs.4,300 on the basis 432 of the demand of duty at Rs.24 per kg. on 180.00 kgs. and directed the respondent to deposit the said amount under the proper head. On appeal, the Appellate Collector of Central Excise confirmed the said demand. There was an appeal and the Appellate Tribunal upheld the contention of the respondent. The Appellate Tribunal found that the case related to a demand for payment of differential duty for the period May, 1976 to July, 1976 with reference to texturing of base acrylic yarn received by the respondent from the manufacturers of such base yarn. The respondent, the Tribunal held, had cleared such textured yarn on payment of duty at Rs. 10 per kg. claiming the benefit of notification No. 125/75. The differential duty payment was Rs.24 per kg. leviable on the base yarn. ,The respondent denied theft liability but it was upheld as mentioned 'hereinbefore. It was contended on behalf of the appellant before the Tribunal.that duty on base yarn was payable by the manufacturers of the base yarn only and the burden of showing that the said duty had not been paid by the manufacturers was on the revenue. The authorities had, however, held that the appellant was liable to. pay the differential duty since the appellant had failed to prove the payment of duty on the base yarn and, therefore, the said orders were bad. On the other hand, on behalf of the revenue, it was contended that it was for the respondent to prove that the duty had been paid on the base yarn and if the appellant was paying the duty of Rs. 10 per kg. Only under notification relied upon and in the absence of proof of payment of duty, the base yarn, the orders of the lower authorities making the respondent liable to pay the duty were correctly passed. The Tribunal found that the respond ent was not the manufacturer of base acrylic yarn. The work done by the respondent on the base yarn was by way of textu rising the same. In respect of the, same, the duty payable on the textured yarn produced out of base yarn is the duty for the time being leviable on the base yarn, if not al ready, paid plus Rs.20 per kg. Under notification No. 125/75, the duty was reduced to the duty for the time being leviable on the base yarn, if not already paid, plus Rs. 10 per kg. In this connection, it is relevant to refer to notifi cation No. 125/ 75. The notification, which was issued under sub rule (1) of rule 8 of the Central Excise Rules, 1944, stated that the Government exempted the texturised yarn of the description specified in column (3) of the Table annexed thereto and falling under sub items of item No. 18 of the First Schedule to the Act as are specified in the corre sponding entries in column (2) of the said Table, from so much of the duty of 433 excise leviable thereon as is in excess of the duty speci fied in the corresponding entries in column (4) of the said Table. The relevant portion of the Table annexed to the said notification reads as follows: section No. Sub Item No. Description Rate of duty 1. (ii) Textured Yarn produced The duty for the out of base yarn time being leviable on the base yarn,if not already paid plus ten Rupees per kilogram. Admittedly, the respondent had paid duty at Rs. 10 per kg. and had been allowed to clear the goods. The demand for differential duty by way of duty payable on the base yarn was not in dispute. On the base yarn, the Tribunal held, the manufacturer was liable to pay duty only since purchasers of the base yarn from the market could naturally assume that duty on the base yarn would have been paid by the manufac turer before removal and that it was for the department to verify the fact of such payment and take action against the manufacturer if base duty had not been paid. Under the relevant tariff item, the duty, as mentioned before, was fixed as the duty for the time being leviable on the base yarn, if not already paid, plus Rs.20 per kg. (reduced to Rs. 10 per kg. under the notification). The notification does not change the basic position so far as base duty is concerned from the aforesaid stand. The Tribunal held that the revenue was entitled to claim duty inclusive of the duty paid on base yarn only on proof that the duty on the base yarn had not been already paid, unless otherwise, in the normal course, the presumption inevitable, in view of the nature of the business, be that the duty on base yarn had been paid. If that is so, that cannot be the responsibility or the burden of the respondent to prove that the duty on base yarn had already been paid. It further appears that when the appeal was filed before the Collector, the respond ent had disclosed the names of the persons from whom they had received the yarn as also the names of the manufacturers enclosing the copies of the relevant record. But even then the revenue had not chosen to verify these facts and the Collector (Appeals) had passed his order on the basis that it was for the respondent to prove the actual payment of base duty. This approach is not proper approach. It is not correct to state that the respondent alone should have special knowledge of the fact of payment of base duty and it was therefore for the respondent to prove the said fact. In that view of the matter, the 434 Tribunal held in favour of the respondent. We are of the opinion that the Tribunal was right. Excise is a duty on manufacture. The liability of pay ment of this duty is on the manufacturer. The language of the notification referred to hereinbefore indicates that only the duty for the time being leviable on the base yarn, if not already paid plus ten rupees per kg. was the liabili ty. The description of manufacture was textured yarn pro duced out of base yarn. We are clearly of the opinion that in view of the facts and the circumstances of the case, the Tribunal was right in the view it took. In this connection, it is instructive to refer to rule 49 of the Central Excise Rules, 1944, which deals with duty chargeable only on the removal of the goods from the factory premises or from an approved place of storage. Reference was also made before the Tribunal and our attention was also drawn to the deci sion of the Delhi High Court in Sulekh Ram & Sons vs Union of India & Ors., [1978] ELT J 525, where under rule 9 of the Central Excise Rules, it was held by the Delhi High Court that under excise system, no goods can be removed from the place of manufacturer without first paying the excise duty, therefore, a purchaser can presume that goods are duty paid. It would be intolerable if the purchasers were required to ascertain whether excise duty had already been paid as they have no means of knowing it. It has to be borne in mind that duty of excise is primarily a duty levied on a manufacturer or a producer in respect of the commodity manufactured or produced. See the observations of Lord Simonds in Governor General in Council vs Province of Madras, 72 Indian Appeals 91. In a situation of this nature, the Delhi High Court held that the processor was in the similar position as a purchas er of the goods. In that view of the matter, we are of the opinion that the Tribunal was right in the view it took. We have heard learned counsel for the appellant and considered the matter. We find no merit in the appeal for the reasons mentioned above. In that view of the matter, this appeal must fail and is accordingly dismissed without any order as to costs. Appeals dismissed. 435 CIVIL APPEAL NOS. 214 1 42 (NM) OF 1986. Collector of Central Excise, Chandigarh Versus 1. M/s Navrang Dyeing Co. & Ors. M/s Capital Dyeing Co This is an appeal under section 35L(b) of the Act from the judgment and order of the Tribunal dated 17th April, 1984. For the reasons in civil Appeals Nos. 2151 52, these appeals must also fail and are accordingly dismissed without any order as to costs.

M/s. Parekh Automobiles Ltd., respondent No. 1, had been allotted retain outlet by Indian Oil Corporation, respondent No. 2, for sale of its petroleum products at Dangiawas, which was outside the limits of the appellant. Respondent No. 2 had its depot near Raikabag Station at Jodhpur where it stored petroleum products for supply to various pump stations situated within the limits of the appellant as well as situated outside its limits. Respondent No. 2, being a public sector undertaking, was provided current account facilities under section 133 of the Rajasthan Municipalities Act, 1959, and so respondent No. 2 had not to pay octroi tax on such consignments at the time of entry of goods within the limits of the appellant. For this purpose, respondent No. 2 was provided with the export facilities and supplied with entry passes under Rule 13 of the Rajasthan Municipal Octroi Rules 1962. Under rule 13(4), the amount of duty payable, in the case or persons who had the current account facilities, was determined and collected on the basis of the total amount of goods that had come in as reduced by the total amount of goods that had gone out, the balance being presumed to have been consumed, used or sold within the municipal limits. It was alleged that the appellant suspended the current account facility under section 133 of the Act and took the stand that octroi would be charged from Respondent No. 2 on the goods brought within the municipal limits if these were sold within the limits of the appellant although such goods were mean for use and consumption of the consumers outside the municipal limits. As a consequence of this action of the appellant, respondent No. 2 charged octroi duty on supplies made to respondent No. I at Dangiawas by adding the amount of octroi tax in the bills. Respondent No. 1 filed a writ petition in the High Court praying inter alia for a direction or an order restraining the Municipal Council from realising any tax on diesel, etc. which were supplied to respondent No.1 at Dangiawas by respondent No. 2, and for refund of octroi tax already paid. It was contended on behalf of respondent No. 1, in the High Court, that the Municipal Council had no jurisdiction to levy octroi on the goods brought within the municipal limits but not sold, consumed or used therein and subsequently exported outside the said limits; that actual sale took place only at Dangiawas and since neither the sale nor the consumption nor the use of the petroleum products in ques tion took place within the limits of the municipa 50 lity of Jodhpur, and Municipal Council was not entitled to levy any octroi thereon; alternatively, even if the sale was held to have taken place at Jodhpur, still, octroi could not be levied as the goods so sold were meant for use of con sumption outside the municipal limits; and that the word 'sale ' occuring under section 104 of the Municipalities Act could not be read without reference to use or consumption, as sale simplicitor by itself did not attract the levy of octroi, unless the goods were meant for use or consumption of the ultimate consumer in the area of the Municipal Council. The defence of the Municipal Council was that because the sale took place at Jodhpur, octroi was chargeable irre spective of the fact where it was consumed or used; that as soon as the goods entered the octroi limits, it gave rise to taxable event unless a declaration as contemplated under rule 9 had been made; that respondent No. 2 did not make the declaration as required by rule 9 and rule 13(4) of the Octroi Rules; and that under sub rule (4) of rule 13 the goods exported were to be lessened only if such goods had not been sold within the municipal limits and were exported out within a period of six months from the date of entry. The claim of refund was contested on the ground that there was no privity of contract between respondent No. 1 and the Municipal Council as the demand of octroi was not made from respondent No. 1. The case of the Indian Oil Corporation, respondent No. 2, was that under the terms of the agreement respondent No. 2 was obliged to transport petroleum products out of its depots and supply petroleum products to its dealers at the destination in its own truck tankers, and till the supplies were made at the destination, the goods were at the risk of respondents No. 2 and therefore the goods were sold at the retail outlet where the deliveries were made and not at Jodhpur. The learned Single Judge did not permit the petitioners to raise the question that the sale took place only outside the municipal limits of Jodhpur since that involved an investigation into facts which could not be undertaken in a writ petition, and proceeded on the footing that the sale of the products in question took place within the limits of Jodhpur. He, however. accepted the contention of IOC and the dealer that even if the sale was taken to have been effected within Jodhpur, no octroi was leviable as admittedly the goods had been sold in Jodhpur only for their onward trans mission for use and consumption in Dangiawas outside the municipal limits. The prayer for refund of the octroi tax was, however, refused. The Division Bench dismissed the appellant 's appeal and partly allowed the appeal filed by respondent No. 1. On the basis of the judgments of this Court in Burmah Shell Oil Storage & Distribution Co. India Ltd. vs The Belgaum Borough Municipality, [1963] Supp. 2 SCR 216 and Hiralal Thakorlal Dalai vs Broach Municipality, [1976] Supp. SCR 82 wherein it was held that the sine qua non for levy of octroi was con sumption, and that the sale in order to attract levy of octroi shall be for the purpose of use or consumption 51 of the ultimate consumer, the Division Bench held that sale simplicitor would ot attract the levy of the octroi, that the word 'sale ' in this context had to be read with refer ence to the use or consumption and 'use, consumption and sale ' had to read in a disjunctive manner. The Division Bench further held that rule 13 was a special provision in regard to; the persons who had been granted current account facilities and this rule was not subject to either rule 6 or rule 9 but was an overriding rule independent of rules 6 and 9. The Division Bench was of the opinion that section 133 of the Municipalities Act, alongwith rule 13 of the octroi Rules left no doubt that no conclusive presumption of the goods having been brought within the municipal limits for consumption, use or sale therein could be drawn in cases where special current account facilities had been given to a person. The Division Bench also held that the claim of refund by respondent No. 1 was not maintainable. The Bench however directed that the Municipal Council would have to refund to the Indian Oil Corporation, respondent No. 2, the amount of octroi duty paid on the petroleum products re exported by it to Dangiawas outlet for supply to respondent No. 1, who would recover the same from the Indian Oil Corporation. M/s. Motilal Padampat Sugar Mills Co. Ltd. vs State of Uttar Pradesh & Ors., ; and State of Madhya Pradesh & Anr. vs Bhailal Bhai, ; , relied upon. Before this Court, the parties reiterated their conten tions raised before the High Court. In addition, it was contended on behalf of the appellant that there was nothing in the two judgments of this Court to the effect that if goods were brought into a local area for sale to a dealer who then transported the goods outside the local area for sale to consumers, no octroi would be chargeable. It was further contended that during the period in dispute, as also today, there was no current account facility to the respond ent No. 2 under rule 13 of the Octroi Rules and as admitted ly the respondent No. 2 was not complying with the require ments of rules 6 and 9 of the said Rules and not filing any declaration, the Municipal Council had the right to treat the goods brought within the Municipal limits, as those brought for consumption, use or sale under sub rule (2) of rule 9 of the said Rules and thereby attracting octroi. On the other hand, it was contended on behalf of the respond ents that it was incorrect to say that the current account facility was suspended or withdrawn. Dismissing the appeal, this Court, HELD: (Sabyasachi Mukharji and M.H. Kania, JJ. Per Sabyasachi Mukharji, J). (1) The High Court was right in holding that it was difficult and inappropriate under Article 226 to determine the question as to where the sale 52 took place, and that even if the sale took place within the octroi limits of Jodhpur Municipal Council for the use or consumption of the ultimate consumer outside the octroi limits of Jodhpur then the taxable even did not take place in the octroi limits of Jodhpur. [66F G] (2) In view of the decisions of this Court and in view of the language of section 104 of the Municipalities Act and the facts, the High Court was right in holding that no octroi was leviable on petroleum products re exported out side the municipal limits for consumption and use outside the municipal limits. [65F] Burmah Shell Oil Storage & Distributing Co. Ltd. vs The Belgaum Borough Municipality, [1963] Supp. 2 SCR 216 and Hiralal Thakorelal Dalai vs Broach Municipality & Ors., [1976] Sup. SCR 82, followed. (3) In view of the facts of this case, the title passed to the goods outside the municipal limits even in respect of the petroleum products which were sold within the municipal limits. If the goods were brought within the municipal limis for the purpose of sale (sale means passing of the title to the purchaser), then different considerations might have applied. [73D] (4) Analysis of Section 133 and the current account facility therein indicates that only on the goods for use, consumption or sale, octroi is leviable. Under this provi sion, octroi tax is paid at the tune of settlement of peri odical account, say after every month. Thus, question of complying with rule 6 or rule 9 does not arise as they apply when octroi tax is paid at the time of entry of goods. The delivery of entry passes and transport passes is only to facilitate settlement of octroi account on goods which have been retained in Municipal area for use and consumption. [73H; 74A] (5) A perusal of section 133 would show that current account facility is provided by substantive section, whereas rule 13 is procedure provided with ' the object of providing facility of settlement of account of payment of octroi tax. In other words, according to rule 13(4), octroi tax is charged on quantity mentioned in entry passed minus the quantity mentioned in transport passes, i.e., on quantity of petroleum products used or consumed within the Municipal limits of Jodhpur Municipality. [75A B] (6) In view of the confused state of pleadings and averments, it was not possible to hold that current account facilities were withdrawn or cancelled. If that is the position, then there is no question that the High Court was right in the order it passed and the direction it gave. [75E] Per Ranganathan, J. (1) When goods arrive at an octroi outpost, they may be coming in either for consumption, use or sale within the municipal limits or for transportation outside these limits. Rule 9 requires every person bringing goods within the municipal limits to make a declaration as to what the goods are intended for. [77E] 53 (2) Under the normal procedure for the assessment and collection of octroi duty, the declaration under Rule 9 becomes important and the terms of the declaration deter mines the incidence of the duty. Rule 13, however, contem plates a totally different scheme for the assessment and collection of octroi for the special type of cases. [78C D] (3) A comparison of the two sets of provisions will make it clear that they are two independent and mutually exclu sive modes of assessment and collection of duty. Under the cash system of payment, a declaration under rule 9 is abso lutely essential. The mode of collection of duty in respect of a person having current account facilities, however, does not depend upon any such declaration or upon the mode of utilisation of the goods as indicated in such declaration, because in the case of the current account holders, the duty payable in respect of the entirety of the goods brought in is straightaway debited to his account on the basis of entry passes. The duty payable in respect of the goods transported outside is later on credited to his account on the basis of the transport passes. [79E G] (4) The High Court was fully justified in holding that the terms of rules 6 and 9 have no relevance to the payment of duty in cases covered by the current account facility envisaged under rule 13, and that the present case cannot be brought within the terms of proviso to rule 9(2) on the basis of a deemed consumption, use or sale within the munic ipal limits. In cases where rule 13 applies, rule 9 is excluded. [80B] (5) The present case is governed by the terms of rule 13 and the Indian Oil Corporation is entitled to go on paying octroi duty on the basis of the goods brought by it within the Municipality less the goods transported outside the Municipality, may be in pursuance of a sale within the Municipality, so long as such sale is in pursuance of an intention that the goods should be consumed or used outside the Municipal limits. [80G] (6) The appellant should not be permitted to raise at this stage a new plea that the current account facility granted to the Indian Oil Corporation had been revoked when all along, in the earlier proceedings in the High Court, the case had proceeded on the footing that the Indian Oil Corpo ration had been having and continued to have current account facilities.

Appeal No. 632 of 1962. Appeal by special leave from the judgment and order dated January 5, 1960 of the Allahabad High Court in Civil Revision No. 325 of 1957. G.N. Kunzru, B.C. Misra, P.K. Chakravarti and Om Prakash, for the appellants. J. P. Goyal and S.P. Singh, for the respondents. This appeal by special leave is directed against the judgment of the Allahabad High Court (Dhavan, J.) allowing the revision under section 115, C.P.C., and dismissing the suit brought by the appellants hereinafter referred to as the plaintiffs. The relevant facts for the purpose of ,appreciating the points raised before us are as follows: The four plaintiffs, out of which three are appellants before us the fourth having died, brought a suit for damages against the six defendants (one defendant had in the meantime died and four are respondents before us). The allegations in the plaint, in brief, were that the plaintiffs and the defendants were members of an ,association called Parsi Zoroastrian Anjuman; that the defendants, alongwith some other members of the association, formed a group and each of them conspired among themselves to injure and harass the plaintiffs and a few others in various ways; that at a meeting held on May 5, 1954, in connection with the election of Trustees, when defendant N.A. Guzder occupied the chair, he gave a ruling that the plaintiffs Kershasp section Gandhi and B.T.J. Shapoorji, since deceased, were unfit candidates for the office of Trustees and thus prevented them from seeking election, and contrary to the rules of the Anjuman and without taking votes declared the defendant, F.J. Gandhi, and one A.F. Cama duly elected. It was further alleged that on 961 July 3, 1954, another meeting of the Anjuman was held when the plaintiffs Khushro section Gandhi and Framroze section Gandhi were candidates for election to the office of the trustees, and defendant F.J. Gandhi gave a perverse ruling rejecting the nominations of the above plaintiffs and after taking votes declared G.T. Shappoorjee as duly elected trustee; that by the aforesaid rejections the plaintiffs had suffered an injury for which defendants Nos. 1 to 6 were jointly and severally liable and the plaintiffs were entitled to recover damages from the defendants. The plaint was filed on January 21, 1955. Before any written statement was submitted, on February 13, 1955 the sixth defendant section Rabadi, entered into a compromise with the plaintiffs. The terms of the compromise were: "1. I, Shavak Dorabjee Rabadi, defendant No. 6 have considered the subject matter of the suit and am sincerely sorry and apologise to the plaintiffs unconditionally for whatever I have done. I realise that I was m error *and was misguided. The plaintiffs above named accept the apology tendered by Shri Shavak Dorabjee Rabadi defendant No. 6 and the suit against him may be disposed of treating the aforesaid apology and its acceptance by the plaintiffs as a settlement of the dispute between the plaintiffs and the defendant No. 6. 3. The plaintiffs do not claim any costs against the defendant No. 6 and defendant No. 6 will bear his own costs. It is therefore prayed that the claim against defendant No. 6 may be disposed of in terms of the above settlement. " A decree was passed in terms of this compromise against defendant No. 6. On May 14, 1955, the other defendants filed a written statement and inter alia alleged: "That the release of defendant No. 6 Sri section Rabadi, an alleged joint tort feasor and the compromise entered into behind the back of the answering defendants with him in full settlement of their suit for damages, appears to be collusive and dishonest and the release by the plaintiffs of defendant No. 6 from his joint liability as a tort feasor has in law extinguished the plaintiffs ' rights to sue the others remaining defendants and claim damage from them." 962 It was further alleged that "the four plaintiffs could not be legally allowed to totalise the sum of their individual damage, alleged to have been suffered, and thereby procure the trial of the suit in the court of higher jurisdiction," and that the suit had been purposely over valued. In a statement dated March 17, 1956, the plaintiffs clarified that the "damages are being claimed by the plaintiffs in respect of all the facts mentioned in the plaint and particularly as a result of the facts that have been mentioned in paragraphs 17 and 19 the plaint", and further "that on account of all the facts complained of each plaintiff is entitled to claim Rs. 10,100 as damages but the plaintiffs have claimed only Rs. 10,100 and have given up rest of the claim. " Two of the issues framed by the Civil Judge, may be set out: "Issue No. 5. What is effect of the compromise between plaintiffs and defendant No. 6, as against rights of the other defendants ? Is the suit not maintainable against other defendants ? Issue No. 11. Is the court fee paid by the plaintiffs insufficient ?" By order dated September 18, 1956, the Civil, Judge held that the court fee paid by the plaintiffs was insufficient and that there was a deficiency of Rs. 905/12/ in the court fee which the plaintiffs had to make good. The plaintiffs were given 15 days time to make good the deficiency. Instead of paying the money the plaintiffs applied under O.VI, r. 17, C.P.C., for amendment of the plaint. The plaintiffs stated in this application that they would in consideration of the order of the Court split the amount of Rs. 10,100/ into two portions claiming Rs. 5,050/ each in respect of the two separate incidents dated July 3, 1955, and May 5, 1955, respectively. The defendants filed an application contending that as the plaintiffs had failed to make good the deficiency in the court fee within the time given, the plaint should be rejected in view of the provisions of the O. VII, r. 11, C.P.C. and section 6, U.P. Court Fees Act. By order dated November 28, 1956, the Civil Judge allowed the plaintiffs ' application for amendment on payment of Rs. 30/ as costs, and also rejected the defendants ' application. Against this order the defendants filed a revision. Dhavan, J., first dealt with the point whether the plaintiffs could renounce a part of the claim instead of making good the deficiency in court fee. He came to the conclusion that the suit contained four causes of action, and that the plaintiffs had to pay court fee on four separate causes of action of the value of Rs. 2,525/ each. As the learned counsel for the plaintiffs had 963 given an undertaking to make good any deficiency in court fee, Dhavan, J., directed the plaintiffs to pay court fee on the four separate causes of action valued at Rs. 2525/ each. He also directed an amendment to be made in the plaint. The learned Judge felt that it would be in the interest of justice that the question covered by issue No. 5 being one of law should be decided by him in the revision. It appears that the counsel for both parties conceded that the Court had power to decide the issue as the entire record was there, although the learned for the plaintiffs felt that the decision should be left to the Trial Court. The learned counsel for the appellants contends before us that the High Court had no jurisdiction to decide issue No. 5 in a revision. He says that the subject matter of the revision was the order of the Civil Judge dated November 28, 1956, and the High Court could not decide any other point and convert itself into an original court. The learned counsel for the respondents tried to justify the decision regarding jurisdiction of the High Court under section 24, C.P.C. This section inter alia, provides that the High Court may withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and try and dispose of the same. We are unable to appreciate how the order of the learned Judge can be justified under section 24. He has not purported to withdraw 'any suit and try the same. What he has done is to try an issue arising in a suit in a revision arising out of an interlocutory order. It seems to us that the High Court, even if the parties conceded, had no power to decide the issue. But if we set aside the order of the High Court and remit the case to the Civil Judge to try it according to law, the Civil Judge would feel handicapped in deciding the case properly because he will feel bound to follow the opinion given by the learned Judge on issue No. 5. Under the circumstances we heard arguments on the issue. Dhavan J., following the English Common Law, held that the decree against Rabadi was complete accord and satisfaction and the cause of action against all the defendants being one and indivisible, the decree operated as a bar against further proceedings against the remaining joint wrong doers. Winfield on Tort (8th edn.) p. 661 states the English Law thus: "The liability of joint tort feasors is joint and several, each may be sued alone, or jointly with some or all the others in one action; each is liable for the whole damage, and judgment obtained against all of them jointly may be executed in full against any one of them. At common law, final judgment obtained against one 964 joint tort feasor released all the others, even though it was wholly unsatisfied. This was established in Brinsmead vs Harrison(1) and the reason put by Blackburn J., was Interest reipublicae ut sit finis litium. Kelly C.B. urged that if the rule were otherwise, then in a second action the second jury might assess an amount different from that in the first action and the plaintiff would not know for which sum he should levy execution. The rule was abolished by the Law Reform (Married Women and Tortfeasors) Act, 1935. It has long been settled that the release of one joint tortfeasor releases all the others, because the cause of action is one and indivisible. This rule has not been affected by the Act of 1935. It applies to a release under seal and to 'a release by way o,f accord and satisfaction, and probably to nothing else. A mere covenant or agreement not to sue, as distinguished from an actual release, does not destroy the cause of action, but merely prevents it from being enforced against the particular tortfeasor with whom it is made. " That was not the law in England in the beginning. The history of the law on this point is set out in William 's 'Joint Torts and Contributory Negligence ' (p. 35 footnote) as follows: "In Y.B. (1305) 33 35 E. 1, R.S. 7, it was apparently held that in trespass against four, a verdict against two did not of itself prevent continuance against the other two. The verdict may not, however, have been embodied in a judgment. The former rule appears more clearly from Y.B. (1342) 16 E. 3, 1 R.S. 171, where judgment against one did not bar the action against the others. That the parties were joint tortfeasors appears plainly from the note from the record, ibid, 175 n. 7. See also Y.BB, E. 3. 7b, pl. 4; (1412/ 13) H. 14 H. 4.22b, 131. 27; in the latter it is said that in trespass against two, if one be condemned and the plaintiff has execution against him with satisfaction, he shall be barred against the others thus implying that the mere judgment would not bar. Hickman vs Machin (1605) 1 Ro. 896, (F) 4, 7, from which case, however (sub. Hickman vs Payns), a different inference is drawn in Broome vs Wooton ; (1605) Yelv. 67, The first discussion of the question in the Year Books is in Y.B, (1441) M. 20 H. 6, 11a, pl. 24, where X had first sued A, B, and C in trespass and (1) 965 obtained judgment against A, who alone appeared to the writ; later X, not having levied execution under this judgment, sued B. Paston and Fulthorpe expressed opinions that he was not barred by the first judgment, but Newton C.J. thought that he was. In Y.B. (1495)M. 11 Ii. 7. 5b, pl. 23 (Bro. Trespas 428) it was said that one can release one joint tortfeasor after judgment ,against another without affecting that other; such a release would have been unnecessary if the judgment had discharged all other joint tortfeasors. Y. BB. (1474) T. 14 E. 4. 6a, pl. 2; (1475) T. 15 E. 4. 26b, pl. 3. The rule was not settled in 1584, for it was then made a question whether even satisfaction following on judgment would discharge the others (above 9 n.2); and see Cocke vs Jennor (n.d.) Hob. 66; , , where it was said that if joint tortfeasors be sued in several actions, satisfaction by one would discharge the others; it was not said that judgment against one would discharge." The common law rule was first established by the case of Broome (Brown) vs Wooton(x) and the only reason given was that transit in rem judicatam. Goldrel Foucard & Sons vs Sinclair and Russian Chamber of Commerce in London(2) Sargant, L regarded the rule in Brinsmead vs Harrison(a) highly technical. The rule was changed in England by legislation vide The Law Reform (Married Women and Tortfeasors) Act, Pt. II (25 & 26 Geo. 5, c. 30). Section 6(1)(a) and (b) of that Act read as follows: "Where damage is suffered by any person as a result of a tort (whether a crime or not) (a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage; (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, parent or child of that person, against tortfeasors ,liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under. the (1) ; (2) , 192, (3) , 966 judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is opinion that there was reasonable ground for bringing the action. " This provision has been adopted in other parts of the Commonwealth. Recently in Egger vs Viscount Chelmsford(1) Lord Denning M.R., observed: "I cannot help thinking that the root of 'all the trouble is the tacit assumption that if one of the persons concerned in a joint publication is a tortfeasor, then all are joint tortfeasors. They must therefore stand or fail together. So much so that the defence of one is the defence of all; and the malice of one is the malice of all. I think this assumption rests on a fallacy. In point of law, no tortfeasors can truly be described solely as joint tortfeasors. They are always several tortfeasors as well. In any joint tort, the party injured has his choice of whom to sue. He can sue all of them together or any one or more of them separately. This has been the law for centuries. It is well stated in Serjeant Williams ' celebrated notes to Saunders ' Report (1845 ed.) of Cabell vs Vaughan ; f g. I. several persons jointly commit a tort, the plaintiff has his election to sue all or any number of the parties; because a tort is in its nature the separate act of each individual '. Therein lies the gist of the matter. Even in a joint tort, the tort is the separate act of each individual. Each is severally answerable for it; and, being severally answerable, each is severally entitled to his own defence. If he is himself innocent of malice, he is entitled to the benefit of it. He is not to be dragged down with the guilty. No one is by our English law to be pronounced a wrongdoer, or be made liable to be made to pay damages for a wrong, unless he himself has done wrong; or his agent or servant has done wrong and he is vicariously responsible for it. Save in the case where the principle respondent superior applies, the law does not impute wrongdoing to a man who is in fact innocent." (1) , 264. 967 Gatley on 'Libel and Slander ' (Sixth Edition), in a footnote at p. 367, remarks regarding the approach of Lord Denning in Egger vs Chelmsford ( 1 ): "His approach is also not easy to reconcile with the law on the release o.f joint tortfeasors". In the United States of America, in an early decision, Lovejoy vs Murray(2), the United States Supreme Court refused to follow the English Common Law. Miller J. speaking on behalf of the Court, observed, after referring to Broome (Brown) vs Wooten ( 3 ) and other cases: "The rule in that case has been defended on two grounds, and on one or both of these it must be sustained, if at 'all. The first of these is, that the uncertain claim for damages before judgment has, by the principle of transit in rem judicatam, become merged into a judgment which is of a higher nature. This principle, however, can only be applicable to parties to the judgment; for as to the other parties who may be liable, it is not true that plaintiff has acquired a security of any higher nature than he had before. Nor has he, as to them, been in anywise benefited or advanced towards procuring satisfaction for his damages, by such judgment. This is now generally admitted to be the true rule on this subject, in cases of persons jointly and severally liable on contracts; and no reason is perceived why joint trespassers should be placed in a better condition. As remarked by Lord Ellenborough, in Drake vs Mitchell, , 'A judgment recovered in any form of action, is still but a security for the original cause of action, until it be made productive in satisfaction to the party; and, therefore, till then, it can not operate to change any other collateral concurrent remedy which the party may have. ' The second ground on which the rule is defended is, that by the judgment against one joint trespasser, the title of the property concerned is vested in the defendant in that action, and therefore no suit can afterwards be maintained by the former owner for the value of that property, or for any injury done to it. This principle can have no application to trespassers against the person, nor to injuries to property, real or personal, unaccompanied by conversion or change of (1)[1965] 1Q.B.D.248, (2) 18L. ed. 129,132 132 134. (3) ; 968 possession. Nor is the principle admitted in regard to conversions of personal property. Prior to Brown vs Wootton, Cro. 73, the English doctrine seems to have been the other way, as shown by Kent, in his Commentaries, 2 Kent, Com. 388, referring to Shepherd 's Touchstone, Title, Gift; and to Jenkins, p. 109, ease 88. We have already stated the only two principles upon which it rests. We apprehend that no sound jurist would attempt, at this day, to defend it solely on the ground of transit in rem judicatam. For while this principle, as that other rule, that no man shall be twice vexed for the same cause of action, may well be applied in the case of a second suit against the same trespasser, we do not perceive its force when applied to a suit brought for the first time against another trespasser in the same matter. But in all such cases, what has the defendant in such second suit done to discharge himself from the obligation which the law imposes upon him, to make compensation ? His liability must remain, in morals and on principle, until he does this. The judgment against his co trespasser does not affect him so as to release him on any equitable consideration. It may be said that neither does the satisfaction by his co trespasser, or a release to his co trespasser do this; and that is true. But when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages. But it is not easy to see how he is so affected, until he has received full satisfaction, or that which the law must consider as such. We are, therefore, of opinion that nothing short of satisfaction, or its equivalent, can make good a plea of former judgment in trespass, offered as ,a bar in an action against another joint trespasser, who was not party to the first judgment." In India the English Law has been generally followed. The learned counsel for the appellant relies on Ram Kumar Singh vs Ali Husain(1). The facts in that case in brief were as follows. The plaintiff sued several defendants jointly to recover damages (Rs. 325/ ) in respect of an alleged assault committed on him by (1) All. 173, 175, 969 and accepted Rs. 25/ representing his proportionate share of damages. The High Court held: "The fact that one of several tortfeasors in the progress of a suit 'admits his liability ' as well as that of the other defendants and agrees to pay a sum of money in satisfaction of his liability does not exonerate the other defendants, who may be rouged responsible for the acts complained of, from liability. In the case of Brinsmead vs Harrison(1), one of the tort leasors was sued for damages for trover of a piano and damages were recovered as against him. In that case it was held that a suit against the other tortfeasor could not be sustained for the same cause of action, notwithstanding the fact that the judgment already recovered remained unsatisfied. That is a very different case from the case before us. In the case before us all the tortfeasors were sued in one and the same suit and judgment was not recovered only against the party who had admitted his liability in the progress of the suit and had agreed to pay a sum of money in satisfaction of his liability. " This case was followed in Hat Krishna Lal vs Haji Qurban Ali(2). But in these cases the decree was not passed first against the tortfeasor admitting liability. The learned counsel for the respondent relies on Makhanlal Lolaram vs Panchamal Sheoprasad(5). It was held in that case that "an accord and satisfaction in favour of one joint tortfeasor operates in favour of them all. " Vivian Bose, A.J.C., observed: "An accord and satisfaction in favour of one joint tortfeasor operates in favour of them all; ; 9 QB 819, and ; , Odgers on Libel and Slander, Edn. 6, p. 521, Ratanlal on Torts, Edn. 10, p. 71. The basis of these decisions is that where the injury is one and indivisible it can give rise to but one cause of action. Consequently if satisfaction is accepted 'as full and complete and against one person it operates with respect to the entire cause of action. " In Shiva Sagar Lal vs Mata Din(4) the facts as stated in the head note, in brief, were: "Plaintiff filed a suit to recover damages for malicious prosecution 'against five defendants of whom defendant 1 was a minor. It was alleged that the other defendants had instigated defendant 1 to make a complaint against (1) (1871 72) L.R.7 C.P. 547. (2) Luck. (3) A.I.R. 1934 Nag. 226, 227. (4) A.I.R. 1949 All. 970 the plaintiff. Subsequently, the plaintiff filed an application that there had been a settlement between him and defendant 1 and he had consequently released him. The application was allowed and defendant 1 was discharged. " Following Duck vs Mayeu(1) it was held that the discharge ' of defendant 1 amounted merely to a covenant not to sue him and not to a release of all the joint tortfeasors. The English Courts adopted this line of reasoning in order to soften the rigour of the common law, but in the present case it cannot be said that the compromise amounted to a covenant not to sue, as a decree was passed. It seems to us, however, that the rule of common law prior to Brown vs Wooton(2) and the rule adopted by the United States Supreme Court is more in consonance with equity, justice and good conscience. In other words, the plaintiff must have received full satisfaction or which the law must consider as such from a tortfeasor before the other joint tortfeasors can rely on accord and satisfaction. This rule would recognise that the liability of tortleasors is joint and several. What is full satisfaction will depend on the facts and circumstances of the case. For example, the acceptance of Rs. 25/ in the case of Ram Kumar Singh vs Ali Hussain(3) would not be a case of full satisfaction. In this case an apology was received from the defendant Rabadi and accepted and embodied in 'a decree. This cannot be treated to be a full satisfaction for the tort alleged to have been committed by the respondents defendants. But this must be treated as 'an election on the part of the plaintiffs to pursue their several remedy against the defendant Rabadi. The learned counsel for the respondents urges that if a decree is passed against them for damages, the defendant Rabadi, who compromised, would be liable to contribute in accordance with the rule laid down in Dharni Dhar vs Chandra Shekhar(4) in which it was held that the rule in Merry weather vs Nixon(5) did not apply in India. It is not necessary to decide whether the Full Bench decision of the Allahabad High Court lays down the law correctly, because even if it is assumed that this is the law in India it would not affect the rights of the plaintiffs. ' In the result the appeal is allowed, the judgment ,and decree of the High Court set aside and the case remitted to the Trial Court. He shall dispose of the suit in accordance with this judgment and law. No order as to costs. V.P.S. Appeal allowed. (1) (2) ; (3) All. 173 (4) I.L.R. [1952] 1 All. 759 (F.B.).

A suit for damages was filed on the allegations that the plaintiffs and defendants were all members of an association and that the defendants committed a tort against the plaintiffs by conspiring and preventing the plaintiffs from being elected to the office of trustees of the association. One of the defendants tendered an unconditional apology which was accepted by the plaintiffs and a decree was passed in terms of the compromise. The other defendants, thereafter, filed written statements contending that the release of one of the defendants from his joint liability as a tort lessor extinguished the plaintiff 's rights against the remaining defendants and raised questions regarding valuation and court fees. The trial court took up the issue regarding court fees, held there was a deficiency and granted time to the plaintiffs to make good the deficiency. The plaintiffs, instead, applied for amendment of the plaint and the trial court allowed the application. The High Court, in revision filed by the defendants gave appropriate directions regarding payment of court fee. The High Court, also decided, with the consent of both sides, that the decree against one of the defendants namely, the compromise decree, was complete accord and satisfaction and that the cause of action against all the defendants being one and indivisible, the decree operated as a bar against further proceedings against the remaining defendants. In appeal to this Court, it was contended that the subject matter of revision before the High Court being only the order of the trial court regarding court fee, the High Court had no jurisdiction to decide any other point. HELD: (1) The High Court had no power to decide any other issue even if the parties had consented. The order of the High Court could not be justified under section 24, Civil Procedure Code, because, it was not a case of the High Court withdrawing the case to itself and trying the same. [9 '63 D E] (2) The High Court having decided the question of maintainability of the suit against the. other defendants, the trial court would feel handicapped if the matter were to be remitted to it. The appropriate procedure is for this Court to decide the question. [963 E F] (3) The rule which is in consonance with equity, justice and good conscience and which also recognises that the liability of tort feasors is joint and several, is that, before the other joint tort feasors can rely on accord and satisfaction, a plaintiff must have received full satisfaction or L6Sup. CI/69 10 960 what the law must consider as such from one of the tort feasors. What is full satisfaction would depend on the facts and circumstances of each case. [970 C E] In the present case, the apology which was embodied in a decree could not be treated as full satisfaction for the tort alleged to have been committed by the defendants. But it must be treated as an election on the part of the plaintiffs to pursue their several remedy against the defendant tendering the apology. [970 E F] Ram Kumar Singh vs Ali Husain, All. 173, Makhanlal Lolaram vs Panchamal Sheoprasad, A.I.R. ; Har Krishna Lal vs Haji Qurban Ali, Luck. 284 and Shiva Sagar Lal vs Mata Din A.I.R. 1949 All. 105; and English and American Law, referred to.

Civil Appeal No. 807 of 1964. Appeal by special leave from the judgment and order dated December 10, 1962 of the Gujarat High Court in Sales tax Reference No. 8 of 1961. R. Ganapathy Iyer and B. R. G. K. Achar, for the appellant. I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Gujarat High Court in a Sales Tax Reference made to it by the Gujarat Sales Tax Tribunal. Two questions were referred by the said Tribunal to the High Court "1. Whether in the facts and circumstances of the case, the purchase of the raw cotton by the applicant Mill 670 could be said to have been intended for use in the production of cotton seeds for sale within the meaning of clause (ii) of rule 6 of the Bombay Sales Tax (Exemption, Set off and Composition) Rules, 1954; 2. Whether the applicant Mill is entitled under rule 12(1) to a refund of the purchase tax paid by it. " The facts set out in the statement of the case by the Tribunal are briefly as follows : The respondent is a manufacturer of cotton textile, particularly of coarse and medium variety cloth. During the assessment period from April 1, 1955 to March 31, 1956, it purchased unginned cotton worth Rs. 5,93,266/ from unregistered dealers and paid purchase tax of Rs. 5,932/ under section 10(a) of the Bombay Sales Tax Act, 1953. The cotton was ginned and pressed by the respondent, the ginned cotton was used in the manufacture of cotton textiles while the cotton seeds were sold by it. During the course of assessment proceedings the respondent applied for refund of purchase tax paid on the unginned cotton under the Bombay Sales Tax (Exemption, Set off and Composition) Rules, 1954, (hereinafter referred to as the Rules). The Sales Tax Officer refused to allow any refund on the ground that the conditions of r. 12 ( 1 ) read with r. 6 (ii) of the Rules had not been fulfilled. The Assistant Collector of Sales Tax on appeal confirmed the order of the Sales Tax Officer on the ground that "rule 6(ii) is not applicable when subsidiary or incidental product alone is sold and the main product is used in the manufacture of other goods. Looking the working of the aforesaid Rule, all the products of the unprocessed goods should be sold. " The respondent filed a revision before the Deputy Commissioner of Sales Tax, who also upheld the order of the Sales Tax Officer. The respondent then filed a revision before the Gujarat Sales Tax Tribunal. The Tribunal rejected the revision on the ground that "the purpose underlying the applicant 's purchases was primarily the production of ginned cotton for manufacture. The cotton seeds which form the bye product of the ginning process would no doubt have to be sold because the Mill has no use for them. But that does not mean that the purpose for which unginned cotton was purchased was the sale of cotton seeds. It is not reasonable to suppose that a textile mill purchases unginned cotton for the purpose of selling the cotton seeds. " At the instance of the respondent, as already stated, the Tribunal referred the case to the High Court. The High Court answered question 671 No. 2 in the affirmative, but did not answer question No. 1 on the ground that the answer to the question was not relevant for the purpose of determining the matter in controversy. Mr. Ganapathy Iyer, the learned counsel for the appellant, contends before us that the Sales Tax authorities were right in refusing to allow a refund,to the respondent and that the High Court erred in answering the second question in favour of the respondent. In order to appreciate the contentions of the parties,it is necessary to set out ff. 6 and 12 and the Schedule to the Rules. Classes of sales on which general sales tax shall not be payable. The general sales tax leviable under section 9 shall not be payable in respect of the following classes of sales (i) . . . (ii) Sales of any goods falling under any entry specified in column 1 of the Schedule hereto to a dealer who holds a licence under section 12 who furnishes to the selling dealer a certificate in Form (4) declaring that the goods sold to him are intended to be used by him in producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale SCHEDULE Goods from which the goods specified Goods produced in Goods produced column 2 are produced 1 2 . 1.Cotton in pod; unginned or unpressed cotton Unginned cotton; ginned or pressed cotton; cotton seeds. x x x x .lm15 12. Refund and remission of purchase tax in certain cases. (1) Where a dealer who has purchased any goods specified in clauses (i) or (ii) of rule 6 shows to the satisfaction of the Collector that they have been used by him for the purpose specified in the said clause, the Collector shall on application for refund made by the 672 dealer in the manner specified in rule 25 of the Bombay Sales Tax (Procedure) Rules, 1954, refund to such dealer the amount of purchase tax paid by him in respect of such purchase; or where the amount of purchase tax payable under clause (a) of section 10 in respect of such purchase has not yet been p aid, the Collector shall by order remit the amount so payable." Mr. Ganapathy Iyer contends that when r. 12 speaks of the purpose specified in cl. (ii) of r. 6, it means the purpose of "producing any goods falling under the corresponding entry in column 2 of the said Schedule for sale. " In other words, he says that the purpose must be producing unginned cotton, ginned or pressed cotton or cotton seeds for sale, and if any of these goods are produced but not sold then r. 12 does not apply. Mr. Shroff, on the other hand, contends that the words "purpose specified in the said clause" only mean the purpose of producing any goods falling under the corresponding entry in column 2 of the Schedule, and he wants us to omit from consideration the words "for sale". We agree with Mr. Ganapathy Iyer that the purpose must be the purpose of producing goods unginned cotton, ginned or pressed cotton, cotton seeds for sale, and the words "for sale" must be given effect to. But even if this contention of Mr. Ganapathy Iyer is accepted the respondent would still, in our opinion, be entitled to refund under r. 12(1). Rule 6 speaks of the intention at the time of the purchase, but r. 12 does not incorporate that intention by referring to the purpose specified in cl. 6(ii). The intention at the time of the purchase is irrelevant for the purpose of r. 12. In r. 6(ii) intention was relevant because the purchasing dealer had to furnish to the selling dealer a certificate in Form (4) declaring that the goods sold to him were intended to be used by him for producing any of the goods falling under the corresponding entry in Column 2 of the said schedule for sale. But when the respondent paid the purchase tax on unginned cotton under section 10(a) of the Act, he paid it because he purchased the same from persons who were not registered dealers, and there was no question of furnishing any certificate at that stage. As the High Court observed "what is necessary is that goods should have been actually used for the purpose specified viz., the production of any of the goods aforementioned for sale. " These conditions have been satisfied in this case because unginned cotton was used for the purpose of producing one of the goods specified in column 2, namely, cotton 673 seeds. Consequently, the respondent is entitled to a refund under r. 12 and the High Court was right in answering the second question in the, affirmative. We also agree with the High Court that in view of its answer to question No. 2 it is not necessary to answer question No. 1. In the result the appeal fails and is dismissed with costs here and in the High Court. Appeal dismissed.

H took a truck on hire from the respondent company. The truck was found to contain contraband opium and H was tried for offences under sections 9A and 9B of the Opium Act (10 of 1878) as modified by the Opium (Madhya Bharat Amendment) Act 1955. The company made an application for the release of the truck but the magistrate while acquitting H on the ground that he had no knowledge that the truck was carrying opium, confiscated the truck under section 11 of the Madhya Bharat Act. He took the view that the use of the word 'shall ' in that section gave him no option but to confiscate the truck. The Sessions Judge took the same view but the High Court held that the word 'shall in the context of the section was not mandatory and in the circumtances of the case the truck should not have been confiscated. The State appealed to this by special, leave. HELD: The word 'shall ' is not always mandatory; it depends upon the context in which the word occurs and the other circumstances [475H] Three considerations are relevant in construing section 11. First it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the track was being used for transporting the opium. Secondly it is a penal '. statute and it should if possible be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. Thirdly, if confiscation was obligatory under the section, the section may have to be struck down as imposing an unreasonable restrictions under article 19 of the Constitution. [476 A D] Section 11 of the Madhya Bharat Act is not therefore to be construed as obligatory and it is for the court to consider in each case whether the articles in which the contraband opium is found or is being transported should be confiscated or not having regard to all the circumstances of the case. [476 D E] Tirath Singh vs Bachittar Singh, ; , referred to.

Appeal No. 388 of 1956. Appeal by special leave from the judgment and order dated the August 19, 1955, of the Bombay High Court in Appeal No. 53 of 1955. 755 C. K. Dhaphtary, Solicitor General of India, K. B. Choudhuri and B. H. Dhebar, for the appellant. N. section Bindra and R. section Narula, for respondent No. 1. B. H. Dhebar, for respondent No. 2. 1961. April 4. The Judgment of P. B. Gajendragadkar, IC. R. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar, JJ., was delivered by Ayyangar, J. A. K. Sarkar, J., delivered a separate judgment. AYYANGAR, J. This appeal by special leave is against the judgment and order of a Division Bench of the Bombay High Court by which a writ of mandamus or certiorari granted to the respondent was confirmed on appeal preferred by the appellant now before us. A few facts are necessary to be stated to understand the matters in controversy and the points raised for our decision. The respondent carries on business in Bombay and he was granted on August 18, 1954, a licence under the Imports and Exports (Control) Act, 1947, for the import of fountain pens at not less than Rs. 25 C.I.F. value each from soft currency area, up to a defined amount. He placed an order for the import of Sheaffer pens from Australia and a consignment of these was received by air in Bombay in Octo ber 1954. The fountain pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these im. ported pens. The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relations to the article described, as "fountain pens complete", the rate of duty being 30 per cent and valorem. It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate '. The Custom authorities, however, considered that the consignment fell within the description "articles plated with gold or silver" being item 61(8) on which duty was payable at 781 per cent. 756 The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of Customs, the levy was upheld by order dated February 22, 1955. Section 191 of the enables any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government. The respondent, without resorting to this remedy, filed a writ application in the High Court of Bombay to quash the imposition of the duty at the higher rate (certiorari) and to direct the release of the goods on payment of duty at 30 per cent. (mandamus). The application was resisted by the Collector of Customs, who raised substantially two points: (1) that on the merits the goods imported were "gold plated articles" notwithstanding their being fountain pens and that the proper rate of duty was that which had been determined by the Assistant Customs Collector, (2) that the respondent had another remedy open to him, viz., to file a revision to the Central Government and that he was, therefore., disentitled to move the High Court under article 226 of the Constitution before availing himself of the remedy specially provided by statute. The writ petition came on for hearing before justice Tendolkar, who by his order dated July 5, 1955, recorded that on any reasonable construction of the items in the Schedule to the Indian Customs Tariff, fountain pens did not cease to be fountain pens" because they contained parts which were plated with silver or gold and that so long as they were "fountain pens complete", subject to any exceptional cases of which this was not one, only duty at 30 per cent. under item 45(3) could be levied. The learned Judge further held that the interpretation that he placed upon item 45(3) in the context of the other entries in the Tariff Schedule can "only be one and it is not reasonably possible for any person to take a contrary view". In other words, the learned Judge was of the opinion that the construction put upon the entry by the Customs authorities was unreasonable or perverse. 757 The objection to the writ petition based upon the petitioner before him not having exhausted the statutory remedies available to him was repelled by the learned Judge on the ground that on the facts the decision to levy duty at 783 per cent. was without jurisdiction. The petition was, therefore, allowed and the Customs authorities were, by order of Court, restrained from enforcing payment of any duty higher than 30 percent. The Collector of Customs filed an appeal against this order which was disposed of by a judgment delivered on behalf of the Bench, by Chagla, C. J. The learned Chief Justice was equally emphatic that no reasonable person could, on the construction of the relevant items in the Schedule to the Tariff Act, hold that the consignment of fountain pens could fall under any item other than 45(3) or be charged a duty other than the 30 per cent. provided under that item. Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revision to the Government, the learned Chief Justice disagreed with the view of the learned Single Judge that the Customs authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure than was justified by the relevant items of the Schedule to the Tariff Act. The learned Chief Justice, after pointing out that it was the settled practice of the Bombay High Court not to entertain writ petitions by parties who had not exhausted their statutory remedies, however, held that in the case before the Bench the remedy of applying in Revision to the Central: Government had become time barred by the date ' of the hearing of the appeal, and that on that ground he would not interfere with the order of the learned Single Judge. The appeal was, therefore, dismissed. The Collector of Customs having obtained special leave from this Court has brought this appeal before US. The learned Solicitor General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the items in 758 the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent. under item 45(3) was correct. We might add that even apart from this concession bay for the purpose of argument, we entirely agree with the learned Judges that the tariff items in the Schedule are not reasonably capable of any other construction. In reaching this conclusion we have taken into account the fact that "fountain pens complete" were taken out of the general item 45 'Stationery etc. ' under which they were originally included, by an amendment effected in 1949 in pursuance of an international agreement and that though the duty on stationery was thereafter increased from 30 to 37 1/2 per cent., under the provisions of the Finance Act, 1949, the duty of 30 per cent. fixed on fountain pens re mained unchanged. This at least showed that they were treated as a specialized class of stationery which required separate treatment. The only question therefore is whether a fountain pen in which certain of its essential parts are gold or silver plated falls outside the category of "fountain pens complete". It cannot be again said that anib, cap and clip are essential parts of a fountain pen and not more accessories, and that without them there would be no question of having a "fountain pen complete". Next it is a well known and recognized fact that most fountain pens in ordinary use have nibs 'Which are gold plated. In this connection it should not be overlooked that gold, apart from being a store of value, is a metal which has industrial uses by its malleability and its resistance to oxidation on contact with acids and chemicals which enter into the composition of ink. The use of gold plating for nibs is therefore for increasing the utility of the nib for its primary function of writing and not with a view to enhancing its value by the cost of the metal. In the case before us it would be noticed that the pens permitted to be imported had to be not less than Rs. 25 each C.I.F. value, presumably with a view to protect the market for cheaper pens of indigenous manufacture. Most pens of the 759 value specified in the licence, it need hardly be added, would have gold plated nibs. It could certainly not be that it was the intention of the authorities that notwithstanding Entry 45(3) reading "fountain pens complete" there could practically be no import of pens under that item, because with the limit of value prescribed in the licence, the permitted pens would mostly have gold plated nibs. Different considerations might arise when gold or gold plating is used not for poses essential for the utility of the pen as such, Purmerely as an addition to its value. These cases have been excepted by Justice Tendolkar and we endorse his remarks on this point. No such question arises on the pens imported by the respondent and it was obviously because of this, that the learned Solicitor General did not address us on the correctness of the interpretation placed on relative scope of entries 45(3) and 61(8), by the learned Judges of the High Court. The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solioitor General was that the existence of an alternative remedy was a bar to the entertainment of a petition under article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est. In all other cases, he sub mitted, Courts should not entertain petitions under article 226, or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in this case that the order had been passed without an opportunity to the importer 760 to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respon dent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner under article 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed. We see considerable force in the argument of the learned Solicitor General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases: In Union of India vs T. R. Varma(l), Venkatarama Ayyar,J., speaking for the Court said: "It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the juris diction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed vs Municipal Board, Kairana ( 'a), 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs '. Vide also (1) [1958] S.C.R. 499 503,504. (1a) ; 761 K.S. Rashid and Son vs The Income tax Investigation Commission( '). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226, unless there are good grounds therefore. " There is no difference between the above and the formulation by Das, C. J., in The State of Uttar Pradesh vs Mohammad Nooh (2), where he observed: ". . It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite ,of the fact that the aggrieved party had other ade quate legal remedies. " After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added: "It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari." In the result this Court held that the existence of other legal remedies was not per se a bar to the issue (1) [1954] S.C.R 738. 96 (2) ; , 605 607. 762 Of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him. The passages in the judgments of this Court we have extracted would indicate (,I) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested. in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court. The question that we have now to consider is has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C. J. that the order of the Assistant Collector of Customs in assessing duty at 781 per cent. or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to 763 exhaust his statutory remedies before invoking the jurisdiction of the High Court under article 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he, cannot certainly be ' permitted to urge that as a ground for the Court dealing with his petition under article 226 to exercise its discretion in his favour. Indeed, the second pass age extracted from the judgment of the learned C. J. in Mohammad Nooh 's case. (1) with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule. The question, however, still remains whether in the circumstances of this ease we should interfere with the decision of the High Court. In considering this, we cannot lose sight of three matters: (1) that the levy of the duty at 78 3/4 per cent. was manifestly erroneous and cannot be supported on any reasonable construction of the items in the Tariff Schedule, (2) it was stated by the Customs authorities in answer to the writ petition, in the grounds of appeal to the High Court under the Letters Patent, as also in the statement of case before us, that the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold platled fell within item61(8). This might be some indication that the adjudication by the Assistant Collector of Customs and by the Customs Collector on appeal was in pursuance of a settled policy of the entire hierarchy of the department. Without going so far as to say that a Revision to the Central Government might in the circumstances be a mere futility, we consider that this is not a matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us. After all, the basis of the rule by which Courts insist upon a person exhausting his remedies before making application for the issue of a prerogative writ is that the Court 's jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes. (3) Lastly, the learned (1) ; , 605 607. 764 Solicitor General does not dispute the correctness of the principle of law as enunciated by Chagla, C. J., his complaint is that the law as laid down by the learned Chief Justice has not. been properly applied to the facts of the case before him. If the challenge to the judgment of the High Court were of the former type, this Court might have to interfere to lay down the law correctly lest error creep into the administration of justice. But where the error is only in the application of the law correctly understood to the, facts of a particular case, we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor General has not succeeded in doing. It would be remembered that the question is not whether if the respondent 's application were before us, we should have directed the writ to issue, but whether the learned Judges of the High Court having in their discretion which they admittedly possessed made an order, there is justification for our interfering with it. The two matters set out earlier should suffice to show that no interference could be called for in this appeal. We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no care for interference by us in an appeal under article 136 of the Constitution has been made out. The appeal fails and is dismissed with costs. SARKAR, J. In this case the respondent had imported a certain number of fountain pens plated with gold. The goods were assessed to import duty by an assessing officer of the Indian Customs under item 61(8) of the first schedule to the Customs Tariff which dealt with "Articles, other than cutlery and surgical instruments, plated with gold or silver" and provided for a duty of 78 3/4 per cent. ad valorem. The respondent appealed from this assessment to the Collector of Customs under a. 188 of the , on the ground that the assessment should have been 765 under item 45(3) of that schedule which dealt with "Fountain pens, complete" and provided for a duty of 30 percent ad valorem. He did not dispute that the fountain pens imported by him were, gold plated. His appeal was dismissed. The respondent then moved the High Court at Bombay for a writ to quash the order of assessment under item 61(8). The application was allowed by Tendolkar T. who issued a writ of mandamus directing the Collector of Customs to release the goods upon payment of the duty specified in item 45(3). The appeal by the Collector of Customs from the order of Tendol 'kar, J., to an appellate bench of the High Court was dismissed. The Collector has therefore filed the present appeal. The first question is, whether the writ should have been refused on the ground that the respondent had another remedy, namely, an application to the Central Government under section 191 of the to revise the order of the Collector. Tandolkar, J., held that the writ could issue though the other remedy had not been pursued, as the order of assessment under item 51(8) was without jurisdiction. This was clearly wrong. The Collector had ample jurisdiction to decide under which item in the schedule the fountain pens had to be assessed to duty, and if he made a mistake in his decision that did not make his order one without jurisdiction: cp. Gulabdas & Co. vs Assistant Collector of Customs (1). The learned Judges of the appellate bench held that the writ was properly issued, not because the assessing authority had no jurisdiction to assess the goods under item 61(8), but because at the date the matter had come before them, the other remedy had become barred. This again is,in my view, plainly erroneous for a party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a party who has not so deprived himself. Normally and the present has not been shown to be other than a normal case a writ of mandamus is not issued if other remedies are available. There would be stronger reason for following this rule where the obligation (1) A.1,R. 1957 S C 733 766 sought to be enforced by the writ is created by a statute and that statute itself provide,% the remedy for its breach. It should be the duty, of the courts to see that the statutory provisions are observed and, therefore, that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide. The fact that the Central Government had on a prior occasion decided, as appears in this case to have happened, that fountain pens of the kind which the respondent had imported, were liable to ditty under item 61(8) cannot furnish any reason justifying a departure from the normal rule or the issue of a writ without that government having been moved under section 191. This prior decision of the Central Government could be a reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect. I cannot imagine that a court can ever make such a presumption. Therefore, it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him which he had not pursued. On the present occasion, however, I do not wish ' to decide the case on that ground. Next, I feel the gravest doubt if the case is one for the issue of a writ of mandamus. It is of interest to observe that the respondent had in his petition to the High Court himself asked for a writ of certiorari. A writ of mandamus issues in respect of a ministerial duty imposed by a statute; it cannot issue where the duty to be performed is of a judicial nature, except for the purpose of directing that the judicial duty should be performed, that is, a decision should be given on the question raised. In John Shortt 's book on Informations, Mandamus and Prohibition it is stated at p. 256: "If the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way; not where it is done in one way rather than another, erroneously instead of properly. In other words, the Court will only 767 insist that the person who is the judge shall act as such; but it will not dictate in any way what his judgment should be. If, however, the public act to be performed is of a purely ministerial kind, the Court will by mandamus compel the specific act to be done in the manner which to it seems lawful. " It does not seem to me that the duty which the created and the performance of which was sought to be enforced by a writ in the present case, can properly be said to be a ministerial duty. That duty was to decide which item in the Customs Tariff was applicable to the respon dent 's goods and to realise the customs duty specified in that item. In so far as the statute required the officer to realise the Customs levy, I find it difficult to see how it can be said to be a public duty to the performance of which the respondent had a legal right and without this right he was not entitled to the mandamus: see Ex parte Napier( '). In so far again, as the Act required the Customs Officer to choose the proper item in the Customs Tariff for assessment of the customs levy on goods, it in my view involves performance of work of a quasi judicial nature. The observation of Das, J., in Province of Bombay vs K. section Advani (), which I am about to read, fully fits this case: "If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judical act provided the authority is required by the statute to act judicially." 'Now the empowers the Customs authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer. The Act, further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises, that is, after giving a hearing to the party affected: see as. 29, 31 and 32 of the Act. In this case a hearing (1) ; (2) , 725. 768 was in fact given to the respondent. This taken with the provisions as to a right of appeal from the decision Of the first assessing officer and as to the right to move the government in revision from the decision in the appeal, would clearly indicate that the authorities have to act judicially. In Gulabdas & Co. vs Assistant Collector(1) this Court proceeded on the basis that the duty of assessing the customs levy was of a judicial nature. Therefore I feel the gravest doubt, if the present is a case where a mandamus could at all issue. No doubt if a mandamus could not issue because the act which the statute required to be performed was not a ministerial one but judicial in its character, the case might be a fit one for the issue of a writ of certiorari. But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on their face. In issuing a certiorari again, the Court does not examine the judicial act questioned as if it was hearing an appeal in respect of it: see Satyanarayan Laxminarayan Hegde vs Mallikarjun Bhavanappa Tirumale(2). I do not propose to discuss this question further in the present case, for it was not considered by the High Court nor raised at our bar. I proceed on the basis that it was a case where an application for a mandamus Jay. The respondent, in substance, asked for and obtained a writ directing the Customs authorities to release the goods on payment of duty at the rate of 30 per cent. ad valorem as prescribed by item 45(3). This was on the basis that the duty should have been levied under that item and not under item 61(8) as the Customs authorities had done. The question then is, was there a clear duty on the assessing authorities to assess the goods under item 45(3) dealing with "Fountain pens, completed and not to do so under item 61(8) dealing with "Articles, other than cutlery and surgical instruments, plated with gold". All the learned Judges of the High Court agreed that this clear duty had to be established before the respondent could be held entitled to a mandamus and they found that the Act created such (1) A.I.R. 1957 S.C. 733. (2) [1960] 1 S.C.R. 890, 901. 769 a duty. They said that item 45(3) was a specific provision and therefore it had to be applied in preference to item 61(8) which was a general provision. I am unable to agree with this view. What, apparently, the learned Judges had in mind and applied, was the rule of construction of statutes that when two provisions in an Act are inconsistent with each other, if one is specific and the other general, the specific provision prevails over the general. Now, this rule like all other rules of construction, derives its justification from the fact that it assists in ascertaining the intention of the legislature. The reason why it so assists is this. When two provisions enacted by the legislature, are inconsistent and one cannot operate at all if the other is given full effect, a question arises as to what the legislature intended. Clearly, it could not have intended that a provision that it enacted should have no operation at all. Therefore it is to be presumed that the legislature intended that both the provisions would at least have some effect, if they could not have their full effect. The rule under discussion gives effect to this presumed intention of the legislature. In order to give effect to this intention, the rule provides that the provision with a narrower scope of operation should have effect so far as it goes, in preference to the provision with the larger scope of operation so as to restrict the operation of the latter which, without such restriction, would have wiped the narrower provision out of the statute book altogether. This rule permits both the provisions to have effect; it reduces the scope of one and prevents the other from becoming a dead letter. This aspect of the rule would, I believe, appear clearly from a statement of it by Sir John Romillyn pretty vs Solly(1) which I now set out: "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general (1) ; ; 770 enactment must be taken to affect only the other parts of the statute to which it may properly apply. " The test of the applicability of the rule, therefore, is that one enactment must overrule the other. The one overruled is called specific only in comparison with the other which is in the same way only, called general. There need be nothing inherent in the nature of the enactments which, apart from a consideration of their comparative scopes, mark one out as specific and the other as general. When one overrules the other, it must include within its scope that other and so becomes general in comparison with the other. If two provisions were merely in conflict with each other, each affecting the other and none overruling the other and itself remaining in force, no question of calling one general and the other specific would arise. I should suppose, when Sir John Romilly talked of one enactment overruling the other. he meant completely overruling. That would make the rule sensible for, then it would clearly be a guide to the intention of the legislature which is that, all tile provisions are intended to have effect. This reason to support the rule would not exist if it was applied to a case where the provisions only partially affected each other for, then, both the provisions would have at least some operation. It would further be impossible to say from a comparison of the degrees of the effect of each on the other, if such comparison was possible, what the intention of the legislature was. I am not aware that it has ever been said that when two pro. visions partially affect each other, without one completely overruling the other, the legislature intended the one less affected should yield to the other or even the other way about. To such a case the rule would, in my view, have no application. The present is a case of that kind. I now confine myself only to items 45(3) and 61(8) for, no question as to any other item in the Tariff arises for applying the rule. If gold plated fountain pens were assessed under item 61(8), there would still be plenty of scope left for item 45(3) to operate upon, for, there would 771 be many kinds of complete fountain pens without gold plating. Likewise also if gold plated fountain pens were assessed under item 45(3), there might be many other gold plated articles for being assessed under item 61(8). Item 61(8) cannot be said to overrule item 45(3) completely. Item 61(8) cannot be said to be a general provision and item 45(3) a specific one. There is no scope here of applying the rule giving effect to a specific enactment in preference to the general. What then should be done? Under which item should the gold plated fountain pens then be assessed to duty? In my view, they were properly assessed under item 61(8). The item is clearly intended to apply to all gold plated articles other than the two expressly excepted, namely, cutlery and surgical instruments. There is no reason why this intention should not be given effect to. The Customs Tariff Schedule no doubt makes separate provisions for various individual articles. A fountain pen is one of such articles. If a gold plated fountain pen is for the reason that fountain pens are separately provided for, to be taken out Of item 61(8), all other articles separately dealt with in the schedule would have for the same reason, to be taken out of that item even though they happen to be plated with gold. The result of that would be that item 61(8) would apply to those articles which are not ,separately provided, and as Customs Tariff Schedules are made as exhaustive as they can be, there would be very few articles, if any, left to which item 61(8) might be applied. It does not, seem to me that this could have been intended. Item 61(8), as already stated, is intended to take in all gold plated articles except cutlery and surgical instruments. A proper construction of this item must give effect to this intention. Item 45(3) applies to fountain pens. Now it is not necessary for a fountain pen to be gold plated at all. Indeed the large majority of them are not gold plated. It is true that a fountain pen does not cease to be a fountain pen because it is plated with gold. It is, however, equally true that a gold plated fountain pen is an article plated with gold. A fountain pen may or may not be 772 gold plated but a gold plated article can only be a gold plated article. Therefore, it seems to me that item 45(3) was intended to apply to fountain pens simpliciter, that is, without gold plating or other embellishments which might properly bring them under another item in the schedule. This, in my view, would best harmonise the different items in the Tariff schedule and carry out the intention of the legislature. This can be illustrated by an example. Suppose a fountain pen was Studded with diamonds. Could it then be said that the legislature intended to pose on them a duty of 30 per cent. ad valorem under item 45(3) and the diamonds were not intended to be assessed under item 61(10) which deals with jewels and provides for a higher duty. I do not think that a possible view to take. I think, therefore, that the assessment in the present case under item 61(8) was proper. I would hence allow the appeal. By COURT: In accordance with the opinion of the majority, this appeal is dismissed with costs. Appeal dismissed.

A bus run by the appellant met with an accident as a result of which R died. R 's dependents and heirs e.g. the father, widow and sons, brought a suit for compensation under section 1 of the , for loss of pecuniary benefit sustained by them personally and under section 2 thereof for the loss sustained by the estate on account of the death of R. The, High Court found that the bus was driven at an excessive speed and there was negligence on the part of the driver and that the appellants were liable for the same. On the question of damages, it confirmed the amount of compensation of RS. 25,000 under section 1 of the Act for the loss of pecuniary advantage and of Rs. 6,000 under section 2 of the Act for loss of expectation of life. The questions for consideration were (1) whether the accident was due 117 930 to any negligence on the part of the driver; (2) whether the courts below were right in awarding compensation under section 1 of the Act for pecuniary loss sustained by the widow and the sons of the deceased; and (3) whether the sum awarded as damages under section 2 of the Act for loss of expectation of life should go towards the reduction of the compensation awarded for pecuniary loss sustained under section 1 of the Act, as otherwise it would be duplication of damages in respect of the same wrong. Held, that where on the basis of the evidence and on broad probabilities it is found that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened, there is a presumption that the accident was caused by the negligence of the driver. As the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is rebutted by the master. In the present case, on account of the negligence of the driver in the course of his employment the accident happened, and, therefore, the appellant was liable for the same. Barkway vs South Wales Transport Co. Ltd., [1948] 2 All E.R. 460, Joel vs Morison, (1834) 6 Car. & P. 501 and Storey vs Ashton, , applied. That the actual extent of the pecuniary loss to the aggriev ed party may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained. Davies vs Powell Duffryn Associated Collieries Ltd., and Nance vs British Columbia Electric Railway Company Ltd., , followed. Where the courts below have on relevant material placed before them ascertained the amount of damages under the head of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed in second appeal except for compelling reason. Held, further, that the rights of action under sections 1 and 2 of the are quite distinct and independent. If a person taking benefit under both the sections was the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa. 931 in the instant case, under section 1 of the Act the sum of com pensation was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for his widow and sons. Under section 2 the figure for damages awarded for the loss to the estate represents the damages for the mental agony, suffering and loss of expectation of life; thus there was no duplication in awarding damages under both the heads. Rose vs Ford, , Feay vs Barnwell, , Ellis vs Raine, and Secretary of State V. Gokal Chand, Lah. 451, referred to.

Appeal No. 102 of 1964. Appeal by special leave from the judgment and order dated July 30, 1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Writ No. 402 D of 1962. D. Goburdhan for the appellants. section G. Patwardhan and B. R. G. K. Achar for the respondents. The Judgment of the Court was delivered by Wanchoo, J. The only question raised in this appeal by special leave from the judgment of the Punjab High Court is the interpretation of section 9 (1) of the Evacuee Interest (Separation) Act, No. LXIV of 1951 (hereinafter referred to as the Act). The question arises in this way. The appellants were mortgagees of certain properties, including a house, on the basis of a, mortgage bond dated July 19. 1928. The consideration of the bond was Rs. 25,000 and interest was provided at nine per cent per annum compoundable annually. Out of the properties covered by the bond, one of the properties was sold to Bibi Chand Tara on October 23, 1937 subject to the earlier mortgage of 1928. In October 1949, Bibi Chand Tara was declared an evacuee. In 1939 the appellant filed a suit against the orignal mortgagors and others including Bibi Chand Tara for the amount due under the mortgage. A preliminary decree was passed in their favour in March 1942 and the final decree followed in April 1945. It appears that certain sums were received by the appellants before they had filed the suit. Certain other sums were also received after the preliminary and final decrees. It further appears that certain Zamindari properties which were also included in the mortgage had been sold after the final decree and the money appropriated towards the decree. Another house which was also included in the mortgage bond was sold later and the sale money was again appropriated towards the decree. Eventually the appellants put the decree in execution in November 1952 against the house in dispute for a sum of Rs. 60,000 and odd,. There was a sale in that execution proceeding, but it was set aside on the application of the Assistant Custodian, Patna. Thereafter the appellants made an application before the Assistant Custodian for the recovery of the mortgage money claimed by them. and in this application their claim was for Rs. 40.000 and. This application was also dismissed as it was filed before a wrong authority. Eventually the. appellants filed a claim for the same. amount before the Competent Officer under the Act. inasmuch As the property in dispute was composite property in Which, the evacuee had mortgagor 's interest while the appellants who are non evacuee 's had mortgagees ' interest which had ripened into a decree for sale. This application was resisted by the Custodian on a number of grounds. In the present appeal we are only. 57 concerned with one ground based on section 9 (1) of the Act. , The contention of the Custodian was that the appellants were not entitled to any interest higher than five per cent per annum simple from the date of the mortgage under section 9 (1) of the Act. Therefore the Custodian claimed that the entire transaction should be reopened from the date of the mortgage and the amounts already received by the appellants should be taken into account after allowing interest at five per cent per annum simple to them and if, more interest had been paid that should be credited towards the principal and after such accounting the sum if any due on the mortgage could be claimed by the appellants. The Competent Officer held that though the provisions of section 9 (1) were retrospective to a certain extent they could not be stretched to mean that if a mortgagee had already realised interest at a rate exceeding five per centum Per annum simple even before the Act came into force the excess would go to liquidate the principal amount proportionately. He therefore held that in the absence of special provision to the effect that past accounts should be reopened, the amount received as interest prior to the decree could not be taken into account. The Competent Officer further held that the principal money could not be reduced on account of any excess realisation of interest when such excess was realised before the Act came into force. He therefore ordered that (1) the amount of interest exceeding five per cent per annum before the institution of the suit would not reduce the principal amount, (2) the appellants would be entitled to simple interest at six Per cent per annum, i.e. the rate at which interest was decreed in their favour in the mortgage suit from the date of the institution of the suit till November 26, 1952 on the principal sum only, (3) the appellants would be entitled to interest at five per cent per annum simple from November 27, 1952, and (4) the appellants would also be entitled to costs of the suit decreed in their favour. The actual amount due was ordered to be worked out on these principles. The Custodian took the matter in appeal to the Appellate Officer. The Appellate Officer held that on the words of section 9 (1) the entire account must be made afresh on the basis of interest being ,,allowed at five per cent per annum simple on the principal amount from . ' the date; of the. mortgage and that any sums received over above this would go to reduce the principal. He therefore allowed the appeal and set aside the order of the Competent Officer and ordered account to be taken in the manner indicated by him. The appellants,then applied to the punjab High Court by a writ petition, which was dismissed in limine. Their application for a leave to Appeal to this Court was also dismissed. Thereafter they ,obtained special leave from this: Court, and, that is how the matter has come before us L/S5SCI 6 58 The Act deals with separation of the interest of an evacuee from the interest of a non evacuee in composite properties. Under section 2 (d) "composite property" inter alia means any property which, or any property in which an interest, has been declared to be evacuee property and in which the interest of the evacuee is subject to mortgage in any form in favour of a person, not being an evacuee. Under section 2 (h), "principal money" in relation to a mortgage deed executed by an evacuee inter alia means in the case of mort gage deed which has not been executed by way of renewal of a prior mortgage deed, the sum of money advanced by way of loan at the time of the execution of the mortgage deed. Under section 3 the Act and the rules and orders made thereunder have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law, save as otherwise expressly provided in the Act. Sections 4 to 8 provide for machinery for separation of the claims of evacuees and non evacuees in composite properties. Then we come to section 9(1) which is in these terms: "(1) Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of subsection (2) be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced. " It is unnecessary to refer to section 9(2) for we are not concerned with that provision in the present appeal. We may however refer to section 8(3) which is material and in these terms: "(3) If there is any dispute as to whether a liability is a mortgage debt or not or whether any claim submitted under section 7 exists, the Competent Officer shall decide such dispute : Provided that a decree of a civil court '(other than an ex parte decree passed after the 14th day of August, 1947) shall, subject to the provisions of sections 9 and 10, be binding on the Competent Officer in respect of any matter which has been finally decided by such decree , and where any matter was decided by an ex parte decree passed by a civil court after the 14th day of August, 1947, the Competent Officer may decide such matter afresh and on such decision being made the ex parte decree shall be deemed to have no effect." 59 Section 10 provides for separation of the interest of evacuee from the interest of claimants in composite properties and lays down how that will be done. Clause (b) specially provides for the manner in which the claim of a mortgagee will be dealt with by the Competent Officer, but we are not concerned with the details of that provision. It will be seen from a consideration of these provisions that the Competent Officer is bound by the decree of a civil court except an ex parte decree passed after August 14, 1947 in respect of a mortgage subject to the provisions of sections 9 and 10. Section 10 indicates how the Competent Officer is to separate the interest of an evacuee from the interest of a non evacuee, even in the case of a decree except an ex parte decree passed after August 14, 1947. Section 9(1) provides for interest at five per cent per annum simple, and the decree in a mortgage suit except an ex parte decree passed after August 14, 1947 which is otherwise binding on the Competent Officer is subject to the provisions of section 9(1) as to interest. It will also be noticed that there is no provision in the Act which specifically provides for reopening of transactions relating to mortgage and taking accounts from the date of the mortgage on the basis of interest provided in section 9(1) and for crediting anything paid as interest over and above the rate provided in section 9(1) to wards principal. Prima facie therefore in the absence of such a provision it cannot be assumed that the legislature intended that a mortgage transaction should be reopened from the date of the mortgage and accounts taken afresh and anything paid in excess of five per cent per annum simple interest applied towards reduction of the principal amount. We have therefore to see whether there is anything in the words of section 9(1) which leads to this result in the absence of a specific provision to that effect in the Act. Section 9(1) begins with a non obstante clause and lays down that it will apply notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority. It then provides that where a claim is made by a mortgagee, as in the present case, no mortgaged property of an evacuee shall be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced. The key words in the provision are "no mortgaged property shall be liable". These words indicate that the Competent Officer when he comes to deal with a liability under a mortgage must calculate this liability on the basis that interest should be allowed only on the principal amount and only at the rate of five per cent per annum simple. , The liability which the Competent Officer has to determine is with respect to the amount still due to the non evacuee. Further as the non obstante clause includes any decree of a civil court and as such decree is subject to section 9(1) in view of the proviso to section 8(3), the Competent Officer would not be bound by the calculation of interest made by the civil court and would have to determine the 60 liability still due on the mortgage himself on the basis of simple interest at the rate of five per cent per annum on the principal sum advanced. Any calculation made by the civil court in arriving at the sum decreed by it on the basis of interest at more than five per cent per annum so far as the liability still due is concerned would not be binding on the Competent Officer and he will have to make his own calculations on the basis of simple interest at the rate of five per cent per annum. Similarly in a case where there is no decree and there is still some liability on the mortgage, the Competent Officer would not be bound by the rate of interest mentioned in the mortgage deed and will calculate the liability still due on the basis of simple interest at the rate of five per cent per annum on the principal amount advanced. But section 9(1) clearly shows that it applies only where the liability is still due and there is nothing in the words of section 9(1) which gives power to the Competent Officer to reopen the account under the mortgage from the date of the mortgage and for that purpose treat anything paid as interest under the contract over and above five per cent per annum simple interest as payment towards reduction of the principal amount Section 9(1) in our opinion only deals with liability still due and does not contemplate that any payments made already under the contract as interest should be taken partly towards interest and partly towards principal if they are above five per cent per annum simple interest. As section 9(1) speaks only of the liability of the mortgaged property it can only take in liability still due, for whatever has been paid in accordance with the contract towards interest is no longer a liability. This conclusion based on the words of section 9(1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal sum. Two situations may arise before the Competent Officer in such circumstances when calculating the liability under a mortgage. In one case there may be no decree already passed in favour of the mortgagee. In such a case in calculating the liability still due on the mortgage, the Competent Officer will calculate that liability on the basis of simple interest at the rate of five per cent per annum on the principal money advanced and may ignore the rate of interest mentioned in the contract. But even so, the words of section 9(1) do not give him power to reopen the accounts and what ever has been paid towards interest, if it is not in excess of the contractual rate of interest though it may be in excess of the rate of five per cent per annum simple interest, cannot be taken into account in reducing the principal amount. But whatever is still due under the mortgage will have to be worked out on the basis of simple interest at the rate of five per cent per annum on the prin cipal amount advanced. We may illustrate this by an example, 61 Suppose a mortgage was entered into on January 1, 1949 and the interest therein is nine per cent per annum. Suppose that interest for the years 1949 and 1950 has been paid at the contractual rate but nothing has been paid thereafter. in such a case, the amount paid in excess of five per cent per annum for 1949 and 1950 will not go to reduce the principal; but thereafter interest will be calculated at five per cent per annum to arrive at the liability on the mortgaged property or what is still due. The second case which may arise before the Competent Officer would be a case where a decree has been passed on the mort gage bond except an ex parte decree passed after August 14, 1947. In such a case also the Competent Officer cannot take into account anything paid in excess of five per cent per annum simple interest before the date of the suit provided it is not at more than the contractual rate; but as the decree is subject to section 9(1), the Competent Officer will have to calculate interest at five per cent per annum simple from the date of the suit and cannot award more interest in calculating the liability still due under the mortgage. Of course in both the cases if before the suit nothing has been paid towards interest or if something has been paid but it is less than five per cent per annum simple interest on the principal amount advanced. the Competent Officer in calculating the liability still due on the mortgage will have to allow five per cent per annum simple interest from the date of the mortgage to make up the deficiency, if any. As we read section 9(1), we find no provision in it for reopening the account from the very beginning and utilising any interest paid in excess of five per cent per annum simple but within the contractual rate towards reducing the principal amount. Section 9(1) only deals with the liability of the mortgaged property which may still be due when the claim is made before the Competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is nothing in the words of section 9(1) which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the contractual rate. In this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also not quite correct, though it is more in accord with the interpretation of section 9(1) which we have indicated above. On the view we have taken the liability will be calculated thus: Any amount paid before the date of the suit i.e. December 11, 1939, provided it is not more than the contractual rate of interest though it may be above five per cent per annum simple will not go to reduce the principal amount. From the date of the suit till the date of the final decree i.e. April 25. 62 1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to section 8 (3), to section 9 (1). Further from the date of the final decree also the appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the ' rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the costs of the suit which was decreed in their favour, but there will be no interest on such costs. The account will be made up accordingly to determine the liability due under the mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under section 10(b) or (c). We therefore allow the appeal. The writ petition is allowed and the order of the Appellate Officer is set aside and the order of the Competent Officer varied in the manner indicated above. The appellants will get their costs from the Custodian Evacuee Property. Appeal allowed.

Orders of reassessment under section 16(3) read with section 17(b) of the Wealth Tax Act were, passed by the Wealth Tax Officer in respect of two assessment years, and by those orders, amounts which had been formerly allowed as deduction were included in the total wealth of the respondent. The orders were set aside by the Tribunal on the ground that the reassessment was based on a mere change or opinion on the part of the Officer, because, there was no "information" in his Possession, as required by section 17(b), which could lead him to believe that chargeable wealth of the respondent had escaped assessment. The appellant 's applications to the Tribunal and the High Court, for a reference to the High Court, were dismissed. In appeal to this Court, HELD: The Tribunal should be directed to make a reference either to the High Court under section 27(1) or to this Court under section 27 (3A) of the Wealth Tax Act. [179 G]. There is a divergence of opinion among the High Courts as to the meaning of the word "information" in. section 34(1) (b) of the Income tax Act, and some High Courts have taken the view that a change of opinion by the Income tax Officer, in certain circumstances, will justify the issue of notice under section 34 (1)(b) of the Income tax Act. Since that section is in pari materia with section 17(b) of the Wealth Tax Act, a question of law did irises a,; to the interpretation of the word "information" in section 17(b) of the Wealth Tax Act and it should have been referred by the Tribunal to the High Court. [179 E]

ivil Misc. Petition (C) No. 13066 of 1989. IN Civil Appeal No. 2628 of 1980. 563 A.K. Sen and V.B. Joshi for the Petitioner. G.L. Sanghi, C.M. Lodha, Shankar Ghosh, H.M. Singh and C.P. Mittal for the Respondents. The Judgment of the Court was delivered by V. RAMASWAMI, J. In this petition the petitioner has prayed for convicting Respondents 1 and 2 for committing the contempt of this Court by violating the terms and conditions of the undertaking filed in Civil Appeal No. 2628 of 1980 and for a direction that whosoever is in possession of the suit premises be handed over to the petitioner. The peti tioner as the owner and landlord of the property, Tika No. 3, City Survey House, bearing No. 344/345, Jambli Naka, Thane, consisting of ground floor, first floor and second floor in which the business of restaurant known as Ramakr ishna Hindu Hotel or Ramakrishna Hotel is carried on, filed Civil Suit No. 2 13 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name, P.A. Dange, V.A. Dange, Haribhan Shivale and Giri Anna Shetty for eviction from the above said premises. The suit was decreed by the Trial Court. The first respondent who was the first defendant in the suit alone filed an appeal against this decree before the Dis trict Court. The appeal was dismissed confirming the order of eviction. Thereafter, the first respondent filed writ petition No. 354 of 1975 in the High Court of Bombay and that writ petition was also dismissed. Though defendants 2, 3, 4 and 5 did not file the appeal or take the matter fur ther to the High Court they were implead as respondents in the appeal and the writ petition filed by the first respond ent herein. The first respondent thereafter filed Civil Appeal No. 2628 of 1980. The said appeal was dismissed by this Court on 18th of August, 1987. However, at the request of the appellant this Court allowed the appellant to contin ue to be in possession and carry on the business till 31.3.1989 subject to the "appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file an usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered. In default of furnishing or filing the undertaking in the manner indicat ing within the 564 time aforesaid the decree of execution shall become executa ble forthwith." In pursuance of this order the first respondent K.M.M. Shetty filed an undertaking on 5.10.1987. The first respond ent through his advocate had produced the muster roll show ing the names of persons employed by him for running the hotel business in the suit premises as well as a list of persons staying in the said hotel. This list showed 17 persons as being the employees and persons staying in the hotel, and as directed by this Court the 17 persons also filed an undertaking. Some time in the beginning of 1989 one Raghuram A. Shetty second respondent in the contempt application filed Civil Suit No. 306 of 1989 in the Thane Civil Court before the IIIrd Joint Civil Judge, Senior Division, Thane, for a declaration that the decree for eviction obtained in respect of the suit premises in Civil Suit No. 2 13 of 1970 cannot be executed against him and for a permanent injunction, against the petitioner herein. Pending the suit he had also filed an application under Order 39 Rule 1 and 2 read with section 151 of CPC for a temporary injunction from executing the decree for eviction. By an order dated 5.4.1989, the IIIrd Joint Civil Judge, Thane, granted a temporary injunc tion against the petitioner herein restraining him upto the disposal of Civil Suit No. 306 of 1989 from executing the decree for eviction given in Civil Suit No. 213 of 1970. Thereafter, the petitioner has filed this contempt petition both against his original tenant K.M.M. Shetty and also against the second respondent who was the plaintiff in Civil Suit No. 306 of 1989. The second respondent has filed a reply statement in which he has contended that P.A. Dange had taken over the hotel business which was being carried on by the tenant K.M.M. Shetty in the name and style of "Ramkrishna Hindu Hotel" at the ground floor of the suit premises on 29.11.1986 and under an agreement dated 2nd January, 1967 the said P.A. Dange with the consent of the tenant trans ferred the said business and the exclusive possession of the hotel to the second respondent herein. Subsequently there was another agreement executed between the tenant and the second respondent on 1.8.1972 under which the second re spondent was paying royalty to the tenant and that to the knowledge of the petitioner he was in the occupation of the premises and carrying on the business and that in spite of it he had not been impleaded in the eviction suit or the subsequent proceeding and that therefore he was not bound by the decree for eviction. A 565 rejoinder has been filed by the landlord petitioner to this reply. As stated earlier the Suit No. 213 of 1970 was filed by the petitioner for eviction not only against the original tenant K.M.M. Shetty but also against P.A. Dange, V.A. Dange and two others. The case of the petitioner landlord was that the tenant had sub let the premises to the said P.A. Dange defendant No. 2 and V.A. Dange defendant No. 3. The tenant filed written statement contending that he had allowed the second defendant to manage and conduct the said hotel busi ness under the terms and conditions set out under an agree ment made and entered into between them and that Municipal licence for the business had always been and still in the name of the tenant first defendant. Neither P.A. Dange nor V.A. Dange ever stated that they had parted with the posses sion to the second respondent either as a licensee or in any other capacity. Again in the Writ Petition No. 354 of 1975 filed in the High Court the first respondent had stated that P.A. Dange was permitted to conduct the said business under an agreement dated 29th February, 1970 on his paying the tenant a sum of Rs.500 per month by way of royalty, that this agreement was subsequently renewed on 29th January, 1970 increasing the royalty amount from Rs.500 to Rs.600 per month but, however, during the pendency of the appeal before the learned District Judge, Thane, defendants 2 and 3 had returned the business together with the premises, stock in trade, furniture, fittings and all paraphernalia which were given to them for conducting the said business to the first respondent herein and that the first respondent had been in sole possession and occupation of the said premises and of the business conducted therein and he himself had been carrying on the business from that time. Again in this Court when he filed the special leave petition the first respond ent prayed for stay of dispossession. This Court by an order dated 5th November, 1980 granted stay of dispossession on condition that the respondent will continue to pay compensa tion equivalent to rent every month regularly to the peti tioner herein and that he shall not induct anybody else in the premises in question. When the petitioner received notice in Civil Suit No. 306 of 1989 he sent the lawyer 's notice dated 14th March, 1987 to the first respondent inviting his attention to the undertaking given by him to vacate the premises before the 31st of March, 1989 and the consequences that may follow, if in breach of the said undertaking, he does not hand over possession. In this notice he also brought to the notice of the first respondent that the suit was filed at the instiga tion of the first respon 566 dent and charged collusion between first and second respond ent and stated that the suit is based on false and ficti tious allegations intentionally made to postpone the date of delivery of the premises. The first respondent sent a reply to this notice on 23.8.1989 stating that he is not at all concerned in any manner whatsoever with the suit filed by the second respondent, and that he would be filing necessary affidavit in the Suit No. 306 of 1989. The first respondent filed an affidavit in the suit in which also he stated that he had nothing to do with the suit filed by the plaintiff and denied the claim of the plaintiff and further stated that the suit premises had to be handed over to the peti tioner by 31.3.1989 as per his undertaking given in this Court. He had also prayed the Court to pass "such suitable orders to facilitate compliance of the orders" of this Court in respect of the suit premises. he had enclosed copy of his reply to the lawyer 's notice sent by him to the petitioner along with this affidavit. However, for the first time in the reply filed to the contempt application the first re spondent had stated that "the petitioner has with ulterior motives deliberately withheld from this Hon 'ble Court mate rial facts i.e. the respondent No. 1 has not been (in land lord 's knowledge) in the suit premises since 1967 i.e. even before the suit for eviction was filed in the trial court" and that "at that time of final hearing of the appeal, it was landlord 's duty to bring to the notice of this Hon 'ble Court that the answering respondent is not in possession of the dispute premises. " He had further stated that when the undertaking was filed by him he was not in possession of the suit premises and that it was well within the knowledge of the landlord. He had also stated that the second respondent had been in possession of the suit property. We cannot now accept this statement of the first respondent that he was not in possession at the time when he gave the undertaking on the facts and circumstances stated above. If the second respondent is in possession as he claims now, it would mean that the first respondent had been playing a fraud on the Court, and sweating false affidavits and making false state ments and obtaining orders on the basis of such false state ments. It may be noted, however, that there was absolutely no need for making such false allegations and obtain orders which are of no use to him if he had not been in possession, as stated now. If it is said that he might have been moti vated by a desire to spite the landlord and to deprive him of the possession it would clearly be an abuse of the proc ess of the Court. Throughout P.A. Dange and the first respondent who were stated to have given a licence to the second respondent for carrying on the business were parties to the proceedings but they never informed 567 the Court about the possession being with the second re spondent. As already stated the learned counsel for the first respondent produced in this Court at the time of hearing of the Civil Appeal the muster roll for running the hotel as well as a list of persons who are stated to be staying in the hotel. In that list the second respondent 's name did not find a place. Now if the first respondent states that the second respondent had been in the possession of the suit premises and carrying on the hotel business ever since 2nd January, 1967 the first respondent is guilty of deliberately suppressing the facts and giving a false under taking to this Court that he is in possession of the suit premises. In the Civil Suit No. 306 of 1989, the second respondent had prayed for the injuction on the basis that he was a licensee originally from P.A. Dange and later under the tenant himself and that though there was no privity between the petitioner and the second respondent, by reason of certain amendments to the Bombay Rents, Hotel and Lodging House Rates Control Act he had become the tenant directly under the petitioner herein and entitled to protection. An interim injuction has been granted by the IIIrd Joint Civil Judge, Thane, on the ground that it is necessary, till the plaintiff establishes his right, to allow him to be in possession. The learned Judge was not well founded in this view. In the light of the earlier statements made by the first respondent K.M.M. Shetty, P.A. Dange and V.A. Dange in the eviction proceedings and in this Court and in the light of the undertakings given by the first respondent and 17 others the learned Judge should have directed the plaintiff to prove his claim in the suit first before any relief is given against the defendants pending the suit. It may be mentioned that the argument of the learned counsel of the petitioner was that the first respondent had falsely insti gated the second respondent to file the suit and obtain an injunction. If this contention is true then the first re spondent is guilty of contempt in not handing over vacant possession as per the undertaking and in fact the second respondent would equally be guilty as abetor of the breach. However, we are not going into the question of the second respondent 's right in Civil Suit No. 306 of 1989 and that may have to be decided after trial. Suffice it to say that we are of the view that the order of injunction against the petitioner from executing the decree against the second respondent is not justified in this case. We would like to add that as the facts of the undertaking given and the various statements made by the tenant in the eviction pro ceedings were before him, we would have expected the learned Civil Judge, Thane, to have directed the parties to obtain a clarification from this Court, if there 568 was any doubt as to the executability of the decree passed by this Court. Be that as it may, we now direct that that portion of the order granting injunction against the petitioner from executing the eviction decree against the second respondent, on the facts and circumstances of this case, shall not be operative and that petitioner is entitled to execute the decree for eviction against all persons who are in posses sion of the property. Now coming to the question of relief that is to be granted to the petitioner and the punishment to be imposed on the first respondent, the learned counsel for the first respondent contended that his client is an old man of more than 84 years and that in fact though he was willing to hand over vacant possession, on the facts and circumstances he could not comply with undertaking bona fide. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an under taking given to the Court by or on behalf of a party to a civil proceedingS. is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the per sons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circum stances may be in the form of a direction to the contemnor to purge the contempt or a sentence imprisonment or fine or all of them. On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing the first respondent contemnor to deliver vacant possession immediate ly and issuing necessary further and consequential direc tions for enforcing the same. In the foregoing circumstances, we find the first re spondent guilty of committing contempt by wilful disobedi ence of the undertaking given by him in this Court and accordingly we convict him and 569 sentence him to pay a fine of Rs.500 within the period of four weeks, failing which he shall suffer simple imprison ment for one month, and also direct him to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. We further direct the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men and if necessary with police help and give vacant possession of the premises to the petitioner forthwith. However, we discharge the rule issued against the second respondent.

The Respondent landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act 1958 for an order of eviction of the appellant tenant from a shop situate at G.T. Road, Delhi on the ground that the tenant Duli Chand had sub let or parted with the possession of the said shop after the 9th of June 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of respondent landlord. The contention of the appellant tenant was that he had not sub let or parted with the possession of the shop in ques tion. According to him Hiralal was his relative who died sometime prior to 1958 and that Sri Bhagwan was his son and the name of the business as M/s Hiralal Sri Bhagwan & Compa ny was given in memory of the deceased Hira Lal. In reply, the Landlord respondent had contended that it was true that Sri Bhagwan was the natural son of Duli Chand but since he had given him in adoption to Hiralal, he had gone out of the family of the appellant and as such it was a clear case of sub letting and parting with the possession of the rented premises. The Rent Controller, held that the land lord had failed to prove parting with possession of the tenanted shop. On appeal by the landlord, the Rent Control Tribunal held that the tenant had parted with the legal possession of the premises and in that view ordered the eviction of the appel lant tenant under section 14( 1 )(b) of the Act. Thereupon the appellant tenant preferred second appeal before the High Court. The High Court having affirmed the finding of the Tribunal that the appellant tenant had parted with the possession of the premises in dispute, dismissed the appeal. Hence this appeal by the tenant. Dismissing the appeal, this Court, HELD: Section 14(1)(b) requires a "Consent in Writing" of the landlord in order to avoid an eviction on the ground of sub letting, 466 assigning or otherwise parting with the possession of the whole or any part of the premises. [472B] Mere permission or acquiescence will not do. The consent shah also be to the specific sub letting or parting with possession. 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. [473C] 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. [473E] In the instant 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 Shri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had come to know of Sri Bhagwan getting the exclusive possession and doing business in the premises. [471G] Jagan Nath (deceased) through L. Rs. vs Chander Bhan & Ors., ; ; Lakshman Singh Kothari vs Smt. Rup Kanwar, ; ; Bai Hira Devi & Ors. vs The Official Assign ee of Bombay; , ; Associated Hotels of India Ltd., Delhi vs S.B. Sardar Ranjit Singh, ; and M/s Shalimar Tar Products L,d. vs H.C. Sharma & Ors. , ; , referred to.

Civil Appeal No. 1536 of 1970. Appeal by special leave from the judgment and order dated the 10th November, 1969 of the Orissa High Court at Cuttack in O.J.Cs. No. 877 of 1969. Santosh Chatterjee and G. section Chatterjee for the Appellant. The Judgment of the Court was delivered by SHINGHAL, J. This appeal by special leave is by Pratap Narain Singh Deo who is the, proprietor of two cinema halls in Jeypore, district Koraput, Orissa. It is not in dispute that Srinivas Sabata, respondent No. 1, (hereinafter referred to as the respondent) was working as a carpenter for doing some ornamental work in a cinema hall of the appellant on July 6, 1968, when he fell down, and suffered injuries resulting in the amputation of his left arm from the elbow. He served a notice on the appellant dated August 11, 1968 demanding payment of compensation as his regular employee. The appellant sent a reply dated August 21, 1968 stating that the respondent was a casual contractor, and that the accident had taken place solely because of his own negligence. The respondent then made a personal approach for obtaining the compensation, but to no avail. He therefore made an application to the Commissioner for Workmen 's Compensation, respondent No. 2, stating that he was a regular employee of the appellant, his wages were Rs. 120/ per mensem, he had suffered the injury in the course of his employment and was entitled to compensation under the , (hereinafter referred to as the Act). Notice of the application was served on the appellant on October 10, 1968 calling upon him to show cause why penalty to the extent of 50 percent and interest at 6 percent per annum should not be imposed on him under section 4A of the Act on the amount of compensation payable by him because of the default in making the payment of the compensation. The appellant contested the respondents ' claim on the grounds mentioned above and on the further ground that respondent No. 2 had no jurisdiction to entertain and adjudicate on the claim. He filed a memorandum of agreement on April 10, 1969 accepting the liability to pay compensation for a sum which was found by the Commissioner to be so grossly inadequate that he refused to register it. The Commissioner held in his order dated May 6, 1969 that the injury had resulted in the amputation of the left arm of the respondent above the elbow. He held further that the respondent was a carpenter by profession and "by loss of his left hand above the elbow he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. " He therefore adjudged him to have lost "100 percent of his earning capacity. " On that basis he calculated the amount of compensation at Rs. 9800/ 874 and ordered the payment of penalty to the extent of 50 per cent together with interest at 6 percent per annum, making a total of Rs. 15,092/ . The appellant felt aggrieved and filed a writ petition in the High Court of Orissa, but it was dismissed summarily on October 10, 1969. He has therefore come up in appeal to this Court by special leave. It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of his employment with the appellant. It is also not in dispute that the injury resulted in amputation of his left arm at the elbow. It has however been argued that the injury did not result in permanent total disablement of the respondent, and that the Commissioner committed a gross error of law in taking that view as there was only partial disablement within the meaning of section 2(1)(g) of the Act which should have been deemed to have resulted in permanent partial disablement of the nature referred to in item 3 of of Schedule I of the Act. This argument has been advanced on the ground that the amputation was from 8" from tip of acromion and less than 41/2" below tip of olecranon. As will appear, there is no force in this argument. The expression "total disablement" has been defined in section 2(i) (1) of the Act as follows: "(1) "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement. " It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. " This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to item 3 of of Schedule I, because it was not the appellant 's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 41/2" below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 875 It has next been argued that the Commissioner committed serious error of law in imposing a penalty on the appellant under section 4A(3) of the Act as the compensation had not fallen due until it was 'settled ' by the Commissioner under section 19 by his impugned order dated May 6, 1969. There is however no force in this argument. Section 3 of the Act deals with the employer 's liability for compensation. Sub section (1) of that section provides that the employer shall be liable to pay compensation if "personal injury is caused to a workman by accident arising out of and in the course of his employment. " It was not the case of the employer that the right to compensation was taken away under sub section (5) of section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due with after the Commissioner 's order dated May 6, 1969 under section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of a agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer 's liability to pay compensation under section 3, in respect of the injury, was suspended until after the settlement contemplated by section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary. It was the duty of the appellant, under section 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub section (2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent 's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty. The appeal fails and is dismissed.

Under Section 2(i)(1) of the Workmen 's Compensation Act, 1923,"total disablement" means such disablement, whether of a temporary or Permanent nature, as incapacitates a workmen for all work which he was capable of per forming at the time of time ocident resulting in such disablement. Under section 4A(3), when an employer defaults in paying the compensation within one month from the date it fell due, the Commissioner may direct payment of penalty and interest if he is of the opinion that there was no justification for the employer 's delay. The Commissioner, in the present case, awarded compensation, holding that the respondent was a carpenter by profession, that he suffered an injury by an accident which arose out of and in the course of his employment with the appellant, that it resulted in the amputation of his left arm from above the elbow, that in consequence he had become unfit for the work of carpenter as carpentery cannot be carried on with one hand only, and that, therefore, the respondent had lost 100% of his earning capacity, that is, that he suffered total disablement. He also ordered the payment of penalty under section 4A(3) together with interest at 6 per cent per annum. The appellant 's writ petition to the High Court challenging the order was dismissed. In appeal to this Court, it was contended, (1) that the amputation was of the nature referred to in item 3 of Part II of Sch. I of the Act and must therefore be deemed to have resulted only in permanent partial disablement, and (2) that the Commissioner erred in imposing a penalty, as com pensation had not fallen due until it was settled by the Commissioner under section 19. Dismissing the appeal. ^ HELD: (1) The finding of the Commissioner that there was total disablement was correct. The argument with reference to item 3 of Part II of Sch I was a new case which could not be allowed to be raised by the appellant because the facts relied on had not been admitted or established. [874G H] (2) The Commissioner was fully justified in ordering the Payment of penalty and interest. [875A] (a) Section 3(1) of the Act provides that an employer shall be liable to pay compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment. Therefore under section 4A(1) it was the duty of the appellant to pay the compensation at the rate provided in section 4, as soon as the personal injury was caused to the respondent. Not only did the appellant not do so or even make a provisional payment under section 4A(2), he took the false pleas that the respondent was a casual contractor and that the accident was caused solely by the respondent 's own negligence, and raised frivolous objections before the Commissioner that he had no jurisdiction and even prevailed on the respondent to file a memorandum of agreement settling the claim at a grossly inadequate sum. He was therefore liable to pay the penalty and the interest. [875B, E H] (b) There is nothing in section 10 which provides that if any question arises in any proceeding under the Act as to the liability of any person to pay company on or as to the amount or duration of the compensation it shall, in default 873 of agreement, be settled by the Commissioner to justify the argument that appellant 's liability to pay compensation was suspended until after the settlement under section 19. [815 CE]

Civil Appeal No. 187 of 1983. From the Judgment and Order dated the 17th August, 1982 of the Punjab and Haryana High Court in First Appeal From Order No. 199 M of 1979. 306 R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the appellant. E.C. Agarwala, Mrs. H. Wahi and Rajiv Sharma for the respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. The parties herein were married at Jullundur City according to Hindu Vedic rites on or about 24th January, 1975. The first daughter of the marriage Menka was born on 4th January, 1976. On 28th February, 1977 second daughter Guddi was born. It is alleged that 16th May, 1977 was the last day of cohabitation by the parties. It is further alleged that on 16th May, 1977, the respondent husband turned the appellant out of his house and withdrew himself from her society. The second daughter unfortunately expired in the house of the respondent/father on 6th August, 1977. On 17th October, 1977, the wife appellant filed a suit against the husband/respondent herein under Section 9 of the hereinafter referred to as the said Act for restitution of conjugal rights. In view of the argument now sought to be advanced, it is necessary to refer to the said petition. In the said petition, the wife had set out the history of the marriage as hereinbefore briefly mentioned and alleged several maltreatments both by the husband as well as by her in laws and thereafter claimed decree for restitution of conjugal rights. On 21st March, 1978, the learned Sub Judge Ist Class passed an order granting Rs. 185 per month as maintenance pendente lite and Rs. 300 as the litigation expenses. On 28th March, 1978, a consent decree was passed by the learned Sub Judge Ist Class for restitution of conjugal rights. It may be mentioned that on the petition of the wife for restitution of conjugal rights, the husband respondent appeared and filed his written statement admitting therein the factum of marriage between the parties but denied the fact that the respondent had ever made any demand from the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned her out from his house as alleged by the wife petitioner in her petition for restitution of conjugal rights. The respondent thereafter made a statement in the court that the application of the petitioner under Section 9 of the said Act be granted and decree thereof be passed. Accordingly the learned Sub Judge Ist Class on 28th March 1978 passed the decree for the restitution 307 of conjugal rights between the parties. It was alleged by the petitioner wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife. This fact has been disbelieved by all the courts. The courts have come to the conclusion and that conclusion is not challenged before us that there has been no cohabitation after the passing of the decree for restitution of conjugal rights. On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of confugal rights, but no actual cohabitation had taken place between the parties. The appellant filed her reply to the said petition. The categorical case in reply of the appellant was that it was incorrect that after passing of the decree, there had been no restitution of conjugal rights between the parties, positive case of the appellant was that after passing of the decree, the wife was taken to the house of the husband by the parents of the wife after one month of the decree and that the husband kept the wife in his house for two days and she was again turned out. It was further alleged that the wife had filed an application under Section 28A of the said Act in the court of Sub Judge, 1st Class, Jullundur on 22nd January, 1979 with the request that the husband should be directed to comply with the decree passed against him under Section 9 of the said Act and the application was pending at the time when the reply was filed by the wife to the petition for divorce. The learned District Judge on 15th October, 1979 dismissed the petition of the husband for divorce. The learned Judge framed two issues, one was whether there has been no restitution of conjugal rights after the passing of the decree for the restitution of conjugal rights, and secondly to what relief was the husband entitled to ? After considering the evidence of civil and criminal proceedings pending between the parties, the learned Judge came to the conclusion that there has been no resumption of cohabitation between the parties after 28th March, 1978 and decided the issue in favour of the husband but on the question of relief the learned Judge was of the view that in view of the provisions of Section 23 of the said Act and in view of the fact that the previous decree was a consent decree and at that time there was no provision like provision of Section 13B of the said Act i.e. 'divorce by mutual consent ', the learned Judge was of the view that as the decree for restitution 308 of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce. Being aggrieved by the said decision, there was an appeal before the High Court of Punjab and Haryana. So far as last mentioned ground was concerned, the High Court held that in view of the decision of this Court in the case of Dharmendra Kumar vs Usha Kumari, this contention was not open to the wife. The court was of the opinion that in view of the said decision of this Court, it could not be said that the husband was taking advantage of his 'wrongs '. In the said decision this Court noted that it would not be reasonable to hold that the relief which was available to the spouse against whom a decree for restitution of conjugal rights had been passed should be denied to the one who does not comply with the decree passed against him or her. The expression "in order to be a 'wrong ' within the meaning of Section 23 (1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to. So, therefore, Section 23 (1) (a) provides as follows: "23. (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub clause (a), sub clause (b) or sub clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and"). In that view of the matter, the High Court rejected the contention. So far as the other aspect was concerned, the learned Judge expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties and therefore being a collusive one disentitled the husband to a decree for divorce. This view was taken by the learned trial judge relying on a previous decision of the High Court. Mr. Justice Goyal of the High Court felt that this view required reconsideration and he therefore referred the matter to the Chief Justice for constitution of a Division Bench of the High Court for the consideration of this question. 309 The matter thereafter came up before a Division Bench of Punjab and Haryana High Court and Chief Justice Sandhawalia for the said court on consideration of different authorities came to the conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle the petitioner to decree for restitution of conjugal rights. It may be mentioned that before the Division Bench of behalf of the appellant wife, counsel did not assail the factual finding of the Trial Court that there was no co habitation after the decree for restitution of conjugal rights nor did he press the first ground of defence namely that the appellant could not take advantage of his 'wrong ' because of having refused cohabitation in execution of the decree. However, the ground that the decree for restitution of conjugal rights was in a sense collusive decree was pressed before the Division Bench. In view of the Full Bench decision of the Punjab and Haryana High Court in the case of Joginder Singh vs Smt. Pushpa wherein the majority of the Judges of the Full Bench held that a consent decree in all cases could not be said to be a collusive decree and where the parties had agreed to passing of a decree after attempts had been made to settle the matter, in view of the language of Section 23 of the court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree. Section 23 sub section (2) provides as follows: "(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties: Provided that nothing contained in this sub section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub section (1) of section 13. " In this case from the facts on record it appears that there was no collusion between the parties. The wife petitioned against the husband on certain allegations, the husband denied these allegations. He stated that he was willing to take the wife back. A decree on that basis was passed. It is difficult to find any collusion as such in 310 the instant case. Apart from that we are in agreement with the majority of the learned judges of the Division Bench of Punjab and Haryana High Court in the case of Joginder Singh vs Smt. Pushpa (supra) that all cases of consent decrees cannot be said to be collusive. Consent decrees per se in matrimonial matters are not collusive. As would be evident from legislative intent of Section 13B that divorce by mutual consent is no longer foreign to Indian law of divorce but of course this is a subsequent amendment and was not applicable at the time when the decree in question was passed. In the premises we accept the majority view of the Division Bench of Punjab and Haryana High Court on this point. In this appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree as such was not bad or collusive. What he tried to urge before us was that in view of the expression 'wrong ' in Section 23(1) (a) of the Act, the husband was disentitled in this case to get a decree for divorce. It was sought to be urged that from the very beginning the husband wanted that decree for divorce should be passed. He therefore did not deliberately oppose the decree for restitution of conjugal rights. It was submitted on the other hand that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby he misled the wife and the Court and thereafter refused to cohabitate with the wife and now, it was submitted, cannot be allowed to take advantage of his 'wrong '. There is, however, no whisper of these allegations in the pleading. As usual, on this being pointed out, the counsel prayed that he should be given an opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for the mistake of the lawyers. In this case, however, there are insurmountable difficulties. Firstly there was no pleading, secondly this ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial court and before the Division Bench were contrary to the facts now sought to be urged in support to her appeal. The definite case of the wife was that after the decree for restitution of conjugal rights, the husband and wife cohabitated for two days. The ground now sought to be urged is that the husband wanted the wife to have a decree for judicial separation by some kind of a trap and then not to cohabitate with her and thereafter obtain this decree for divorce. This would be opposed to the facts alleged in the defence by the wife. Therefore 311 quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent case. Counsel for the appellant sought to urge that the expression 'taking advantage of his or her own wrongs ' in clause (a) of sub section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands. Firstly even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect. We are therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression 'his own wrongs ' in section 23(1) (a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the courts below. Further more we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter. Our attention, however, was drawn to a decision of a learned single judge of the Andhra Pradesh High Court in the case of T. Sareetha vs Venkata Subbaiah. In the said decision the learned judge had observed that the remedy of restitution of conjugal rights provided for by Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution. Hence, according to the learned judge, Section 9 was constitutionally void. Any statutory provision that abridged the rights guaranteed by Part III of the Constitution would have to be declared void in terms of Article 13 of the Constitution. According to the said learned judge, Article 21 guaranteed right to life and personal liberty against the State action. Formulated in simple negative terms, its range of operation positively forbidding the State from depriving any person of his life or personal liberty except according to the procedure established by law was of far reaching dimensions and of overwhelming constitutional significance. Learned judge observed that a decree for restitution of conjugal rights constituted the grossest form of violation of any individual right to privacy. According to the learned judge, it denied the woman her free choice whether, when and how her body was to 312 become the vehicle for the procreation of another human being. A decree for restitution of conjugal rights deprived, according to the learned judge, a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be sensed. The woman loses her control over her most intimate decisions. The learned judge therefore was of the view that the right to privacy guaranteed by Article 21 was flagrantly violated by a decree for restitution of conjugal rights. The learned judge was of the view that a wife who was keeping away from her husband because of permanent or even temporary estrangement cannot be forced, without violating her right to privacy to bear a child by her husband. During a time when she was probably contemplating an action for divorce, the use and enforcement of Section 9 of the said Act against the estranged wife could irretrievably alter her position by bringing about forcible conception permanently ruining her mind, body and life and everything connected with it. The learned judge was therefore clearly of the view that Section 9 of the said Act violated Article 21 of the Constitution. He referred to the Scarman Commission 's report in England recommending its abolition. The learned judge was also of the view that Section 9 of the said Act, promoted no legitimate public purpose based on any conception of the general good. It did not therefore subserve any social good. Section 9 of the said Act was, therefore, held to be arbitrary and void as offending Article 14 of the Constitution. Learned judge further observed that though Section 9 of the said Act did not in form offend the classification test, inasmuch as it made no discrimination between a husband and wife, on the other hand, by making the remedy of restitution of conjugal rights equally available both to wife and husband, it apparently satisfied the equality test. But bare equality of treatment regardless of the inequality of realities was neither justice nor homage to the constitutional principles. He relied on the decision of this Court in the case of Murthy Match Works, Etc. vs The Assistant Collector of Central Excise Etc. The learned judge, however, was of the opinion based on how this remedy was found used almost exclusively by the husband and was rarely resorted to by the wife. The learned judge noticed and that is a very significant point that decree for restitution of conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil Procedure. He also referred to certain trend in the American law and came to the 313 conclusion that Section 9 of the said Act was null and void. The above view of the learned single judge of Andhra Pradesh was dissented from in a decision of the learned single judge of the Delhi High Court in the case of Smt. Harvinder Kaur vs Harmander Singh Choudhry. In the said decision, the learned judge of the Delhi High Court expressed the view that Section 9 of the said Act was not violative of Articles 14 and 21 of the Constitution. The learned judge noted that the object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The leading idea of Section 9 was to preserve the marriage. From the definition of cohabitation and consortium, it appeared to the learned judge that sexual intercourse was one of the elements that went to make up the marriage, but that was not the summum bonum. The courts do not and can not enforce sexual intercourse. Sexual relations constituted an important element in the conception of marriage, but it was also true that these did not constitute its whole content nor could the remaining aspects of matrimonial consortium be said to be wholly unsubstantial or of trivial character. The remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse. The learned judge expressed the view that the restitution decree did not enforce sexual intercourse. It was a fallacy to hold that the restitution of conjugal rights constituted "the starkest form of governmental invasion" of "marital privacy". This point namely validity of Section 9 of the said Act was not canvassed in the instant case in the courts below counsel for the appellant, however, sought to urge this point before us as a legal proposition. We have allowed him to do so. Having considered the views of the learned single judge of the Andhra Pradesh High Court and that of learned single judge of Delhi High Court, we prefer to accept on this aspect namely on the validity of Section 9 of the said Act the views of the learned single judge of the Delhi High Court. It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "Conjugal". Shorter Oxford English Dictionary, 3rd Edn. I page 371 notes the meaning of 'conjugal ' as "of or pertaining to marriage or to husband and wife in their relations to each other". In the Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt defines 'conjugal rights ' thus: 314 "The right which husband and wife have to each other 's society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, section 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (s.22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. See in this connection Mulla 's Hindu Law 15th Edn. p. 567 Para 443. There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission 71st Report on the "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus: "Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one 's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage "breakdown" and if it continues for a fairly long period, it would indicate destruction of the essence of marriage "irretrievable breakdown". Section 9 only is a codification of pre existing law. Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an 315 injuction. Sub rule (1) of Rule 32 is in these terms: "Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injuction by his detention in the civil prison, or by the attachment of his property, or by both. " It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights the sanction is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property. So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for. This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably. It serves a social purpose as an aid to the prevention of break up of marriage. It cannot be viewed in the manner the learned single judge of Andhra Pradesh High Court has viewed it and we are therefore unable to accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view. Another decision to which our attention was drawn is also a Bench decision of the Andhra Pradesh High Court in the case of Geeta Laxmi vs G.V.R.K. Sarveswara Rao. There on the admitted 316 misconduct of the husband is not only in not complying with the decree for restitution of conjugal rights but ill treating the wife and finally driving her away from the house, it was held that the husband was not entitled to a decree under Section 13(1A) of the said Act in view of the wrong as contemplated under Section 23(1) (a) of the Act. The facts of that case were entirely different from the facts of the instant case before us. There is no such allegation or proof of any ill treatment by the husband or any evidence of the husband driving the wife out of the house. In that view of the matter, this decision cannot be of any assistance to the appellant in the instant case. Counsel for the appellant, however, contended before us that in the social reality of the Indian society, a divorced wife would be materially at a great disadvantage. He is right in this submission. In view, however, of the position in law, we would direct that even after the final decree of divorce, the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage. Separate maintenance should be paid for the wife and the living daughter. Until altered by appropriate order on application on proper materials such maintenance should be Rs. 200 per month for the wife appellant and Rs. 300 per month for the daughter Menka. Wife would be entitled to such maintenance only until she re marries and the daughter Menka to her maintenance until she is married. Parties will be at liberty to ask for variation of the amounts by proper application on proper materials made before Sub judge Ist Class Jullunder. The respondent would pay costs of this appeal to appellant assessed at Rs. 1500. The appeal is dismissed with the aforesaid directions. N.V.K. Appeal dismissed.

The wife appellant filed a suit against the husband respondent under Section 9 of the , for restitution of conjugal rights. Though the respondent contested the petition contending that he had neither turned the appellant out from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub Judge for the restitution of conjugal rights between the parties. After a lapse of a year, the respondent husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co habitation had taken place between the parties. The appellant filed her reply contending that she was taken to the house of the husband by her parents one month after the decree and that the husband kept her in the house for two days and then she was again turned out. It was further alleged that an application under Section 28A filed in the Subordinate Court was pending. 304 The District Judge after considering the evidence of the civil and criminal proceedings pending between the parties, came to the conclusion that there had been no resumption of cohabitation between the parties and that in view of the provisions of Section 23 and in view of the fact that the previous decree was a consent decree and that at the time of the passing of the said decree, as there was no provision like Section 13B i.e. divorce by mutual consent '; held that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce. The respondent filed an appeal. A Single Judge of the High Court following the decision of this Court in Dharmendra Kumar vs Usha Kumari ; , held that it could not be said that the husband was taking advantage of his 'wrongs ', but however expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties, and therefore being a collusive one disentitled the husband to a decree for divorce, and referred the matter to the Chief Justice for constitution of a Division Bench for consideration of the question. The Division Bench held following Joginder Singh vs Smt. Pushpa, AIR 1969 Punjab and Haryana page 397 that a consent decree could not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for restitution of conjugal rights, and that in view of the language of Section 23 if the Court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree. The appeal was allowed, and the husband granted a decree of divorce. In the appeal to this Court it was contended on behalf of the wife appellant that : (a) in view of the expression 'wrong ' in section 23(1) (a) of the Act, the husband was disentitled to get a decree for divorce, and (b) Section 9 of the Act was arbitrary and void as offending Article 14 of the Constitution. Dismissing the Appeal, ^ HELD: (1) In India conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. There are sufficient safeguards in Section 9 of the to prevent it from being a tyranny. [314 D E] 305 2. Section 9 is only a codification of pre existing law. Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction. [314 H] 3. Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view. [315 G] T. Sareetha vs Venkata Subbaiah, A.I.R. 1983 Andhra Pradesh page 356, over ruled. Harvinder kaur vs Harmander Singh Choudhry, A.I.R. 1984 Delhi, page 66, approved. It is significant that unlike a decree of specific performance of contract; a decree for restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is deliberate, might be enforced by attachment of property. Where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only the properties have to be attached, is provided for. This is so to enable the Court in appropriate cases when the Court has decreed restitution for conjugal rights to offer inducement for the husband or wife to live together and to settle up the matter amicably. It serves a social purpose, as an aid to the prevention of break up of marriage.[315 C F] 5. (i) Even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage. Separate maintenance should be paid for the wife and the living daughter. Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married. [316 C; E] (ii) Until altered by appropriate order on application or proper materials, such maintenance should be Rs. 200 per month for the wife, and Rs. 300 per month for the daughter. [316 D]

No. 917 of 1990. (Under Article 32 of the Constitution of India). (With I,A. Nos. 1 3/90 in Writ Petition (Civil) No: 9/88 and Contempt Petition No. 45/91 in Writ Petition (Civil) NO. 602/90). S.K. Bhattacharya and R. Venkataramani for the Petitioners. Altaf Ahmed, Additional Solicitor General, S.K. Mehta, A. 597 Mariarputham, Ashok Bhan, Ms. A. Subhashini, R. Ramachan dran, S.P. Kalra and Arun Madan for the Respondents. The following Order of the Court was delivered: The main application is under Article 32 of the Consti tution while the Contempt Petition and the Interlocutory Applications in the connected Writ Petition are for orders and directions. The common aspects in all the three proceed ings are that the petitioners before this Court are Research Scholars connected with Projects entrusted to different Institutions. They are before the Court for security of emplOyment and improvement of conditions of service. In Writ Petition 999 of 1988. along with Writ Petition No. 1043 of 1989 we gave our judgment on March 22, 1990, We then indicated: "The Institute set up by Statute is intended to carry on research in a continuous way to improve the level of medical knowledge. Under the Act the Institute is an autonomous body though the Chairman thereof is no other than the Union Minister of Health. It is true that the Institute is entrusted from time to time. with research projects by the World Health Organisation, the Indian Council of Medical Research and other government and semi govern ment bodies. It is appropriate that a Scheme should be evolved 'by the Institute m coordi nation with the Health Ministry and the Indian Council of Medical Research so that a team of researchers is built up to meet the general requirements of research. It is quite possible that certain projects would require specia lised hands ' and on such occasions a special team could be set up on casual basis by draw ing the competent hands from different insti tutions ,for a period but to keep up the tempo of research if a team of researchers is built up, it would be. convenient for the Institute for purposes of discipline and control as also for efficiency. The Health Ministry must also sponsor Continuous research projects in the field of medicine and health and for such purpose several projects should be listed out from time to time and entrusted to the re spondents Institute as also a similar Insti tute at Chandigarh and to institutes as and when 'set up elsewhere. This would assist ill updating relevant medical 'information ' and knowledge, apart from building up a scientific tone and temper for general circulation. 598 We commend that the Institute initiates serious action in this regard. without delay and we suggest that the Ministry of Health and the indian Council of Medical Research collab orate with the Institute to work out the same. Pursuant to our observations the Ministry of Health appears to have taken some action and particulars relating thereto have been placed before us. On that occasion we indicated that those who have put in 15 year. s of research work should immediately be regularised and core a cadre could be built up. The Health Ministry has no objection tO a core cadre of researchers being created. The Indian Council of Medical Research ( 'ICMR ' for short) is actually the organisation set up for the research purposes and as we gather the Union of India in the relevant Ministry meets its expenditure on research by funding. The Court does not have the adequate technical knowhow but we are of the view that if appropriate coordination is made and the Health Ministry, ICMR and the Institutes where research is carried on tie up their operations more useful work can be done and simultane ously the researchers would have better terms of employment. All the Institutes where research is carried on may not be at the national capital. What is necessary is the emergence of a small monitoring unit which would finalise the various research projects well in advance and receive offers of projects from organisations like World Health Organisation or other bodies. No consideration has been given. as to why the drug manufacturers in India who have engaged themselves in a very lucrative trade should also participate in research pro grammes. Quality of work in research institutes specialised in their fields is bound to. be better than research carried on by the manufacturers themselves. A scheme could be evolved by which established drug manufacturers could be required to participate in such programmes by supporting particular research projects which the monitoring body Could allot. Continuing research not only keeps up the level of knowledge but also helps the enhancement of efficiency of treatment of diseases and in the matter of providing relief to the patients. Mr. Venkataramani seriously presses before us that the researchers should have some scheme where within two to three years they could as in other Government service be made permanent and given guarantees of service. When we gave our final decision in Writ Petition No. 999/1988 ' we had no intention of creating a permanent cadre of the type Mr. Venkataramani argues about. In fact 'project 599 wise research helps to generate better efficiency than caderised research organisation. Once service guarantees are provided and security of service is available, the flow of inspiration from within perhaps slows down. We had, there fore, thought that those who had put in long period of research work should only be provided security so that in the later part of their service life, they may not be put to inconvenience. We have no objection to a core cadre being built. up and if the Health Ministry is of the view that there should be a core Cadre, perhaps, it can quickly be set up and such of the researchers who have put in a more or less continued period of work Could be brought into the Cadre at the first instance on regular basis. The Committee which the Union of India has perhaps to set up may look into this matter more thoroughly and give shape to the idea we have conveyed by our judgment. The Patel Chest Institute seems to ' be more or less a permanent feature and researchers therein may be continued.against the programmes available. The funding of course has to be ultimately done by the Health Ministry and the manner of funding may be determined by it. The research ers who have worked in the All India Institute of Medical Sciences should be continued upon availability of its pro grammes but those was have put in longer periods may be absorbed in available vacancies. We are aware of the stand taken by Committee that researchers may be treated as in service candidates when regular vacancies occur for absorp tion. This has our approval. We adjourn these matters by two months to receive a comprehensive response. from the Union Government in the Health Ministry so that we would have the opportunity of examining the comprehensive scheme and then make a final order. Call on 4.10.1991. G.N. Matters adjourned.

In the present petitions filed before this court, the petitioners, Research Scholars connected with Projects entrusted to different institutions, prayed for security of employment and improvement of conditions of service. In the earlier writ petitions this Court indicated that those who have put in 15 years of research work should be immediately regularised and that a core cadre be built up. The Respond ents undertook to submit a comprehensive scheme and this court granted two month 's time to the Respondents to file the same. Passing interim orders pending examination of a compre hensive scheme to be submitted by the Respondents, this Court, HELD: 1. The Indian Council of Medical Research (I.C.M.R.)is actually the organisation set up for research purposes and the Union of India meets the expenditure on research by funding. This Court does not have the adequate technical know how but is of the view that if appropriate coordination is made and the Health Ministry, ICMR and the Institutes where research is carried on tie up their opera tions, more useful work can be done and simultaneously the researchers would have better terms of employment. All the Institutes where research is carried on may not be at the National Capital. Hence a small monitoring unit requires to be set up which would finalise the various research projects well in advance and receive offers of projects from organi sations like World Health Organisation or other bodies. [598B D] 596 2. No consideration has been. given as to why the drug manufacturers in India who have engaged themselves in a Very lucrative trade should also participate in research pro grammes. Quality of work in research institutes specialised in their fields is bound to be better than research carried on by the manufacturers themselves. A scheme could be evolved by which established drug manufacturers could be required to participate in such programmes by supporting particular research projects which the monitoring body 'could allot. Continuing. research not only keep up the level of knowledge but also helps the enhancement of effi ciency of treatment of diseases and in the matter of provid ing relief to the patients. [598E G] 3. Once service guarantees are provided and security of service is available, the flow of inspiration from within perhaps slows down. However, there is no objection to a core cadre being built up and if the Health Ministry is of the view that there should be a core cadre, it can quickly set up the same and such of the researchers who have put in more or less continued period of work could he brought into the cadre at the first instance on regular basis. The Committee which the Union of India has to set up my look into this totter more thoroughly and give shape to the idea. [599A C] 4. The Patel Chest Institute seem to be more or less a permanent future and researchers therein may be continued against the programmes available. The funding of course has to be ultimately done by the Health Ministry and the manner of funding may be determined by it. The researchers who have worked in the All India Institute of Medical Sciences should he continued upon availability of its programmes but those who have put in longer periods may be absorbed in available vacancies. The stand taken by Committee that researchers may be treated as in service candidates when regular vacancies occur for absorption, is approved. [599D, E]

Appeal No. 129 of 1968, Appeal by Special Leave from the Judgment and Order dated the 18 8 66 of the Bombay High Court in S.C.A. No. 1299/67 and Civil Appeal No. 2007 of 1969 From the Judgment and Order dated the 18th, 20th June 1968 of the Bombay High Court in S.C.A. No. 1676 of 1964. and Special Leave Petition (Civil) No. 3175/75 From the Judgment and Order dated the 31 10 74 of the Bombay, High Court in Special Civil Appln. No. 2610 of 1970. V.M. Tarkunde, V.N. Ganpule and P.C. Kapoor for the appellant in C.A. 129 of 1968. S.N. Anand for Respondent No. 1 in CA 129/68 V.N. Ganpule for the Petitioner in SLP S.B. Wad and R.N. Nath for the Appellants in CA 2007 of 1969. R.B. Datar and S.C. Agarwal for Respondent No. 1 in CA 2007/ 69 The Judgment of the Court was delivered by KRISHNA IYER, J. These two appeals raise a short issue of interpretation of the proviso to section 32F (1) (a) of the Bombay Tenancy and Agricultural lands Act, 1948 (Bombay Act LXVII of 1948) (hereinafter referred to as the Act). The appellants in both the cases are the aggrieved landlords, the tenants ' right of purchase under the Act having been upheld by the High Court. The correctness of this view is canvassed ,before us by counsel. The facts necessary to appreciate the rival contentions may be are different but the issue is identical and, stated briefly. The parties so a single judgment will dispose of both the appeals. 680 In Civil Appeal No. 2007 of 1969 the widow of a deceased landowner, one Dattatraya, is the appellant. The deceased owned several houses, had a money lending business and considerable agricultural lands. He left behind him on his death in 1952 a widow (the second appellant) and two sons, one of whom is the first appellant. Admittedly the Act, an agrarian reform measure, was extensively amended by Bombay Act XIII of 1956 conferring great rights on tenants and inflicting serious mayhem on landlordism. The case of the appellants is that there was a partition among the mother and the two sons of the agricultural estate whereunder the second appellant (the widow) was allotted around 80 acres of land out of which about 15 acres were held by the first respondent as a tenant, On the Tillers, Day tenants, bloomed into owners by the conferment of the right of pur chase. On the basis that the first respondent had become the owner, a proceeding for the determination of the pur chase price of these lands was initiated? by the Tribunal, as provided under section 32G of the Act. Although notice was not given to the second appellant, the first appellant appeared before the Tribunal, urged the case that the land held by the first respondent. was set apart in a family partition to his mother, the second appellant, and. that since she was a widow she came squarely within the protec tive provision of the proviso to cl. (a) of section 32F(1 ) of the Act. The first respondent, however, contested the partition and further pressed the plea that even if the agricultural ' lands had been divided since the house and the money lending business and other assets admittedly remained ' joint, the appellant was ineligible to claim the benefit of the proviso aforesaid. We need not trace the history of the litigation from deck to deck but may conclude the story for the present purpose by stating that the High Court took the view that the second appellant (widow did not qualify under the said proviso: "The proviso is not satisfied ' unless the share of a disabled person is separated by metes and bounds in all of the joint family property and ' unless the agricul tural land allotted to him corresponds to his share in the entire property and is not in excess thereof. " This was the construction put by the Court on the proviso and chal lenged before us by Shri Wad in C.A. 2007 of 1969 and by Shri Tarkunde in C.A. 129 of 1968. In Civil Appeal No. 129 of 1968 the legal scenario is similar. The family owned lands and other assets and there was a partition on November 7, 1956 confined to agricultural land only, but the house property remained undivided. The partition deed shows that the land under the tenancy of the first respondent has been set apart to the share of a minor appellant. The Tillers ' Day arrived '. The tenant claimed to have become owner. Proceedings under section 32G of the Act for determination of ' the compensation were commenced and the mantle of protection of the proviso to section 32F (I) (a) was pleaded in vain. The High Court having negatived the land lord 's contention summarily, this Court has been approached, the point urged being the same as in the previous appeal. In both the appeals we my proceed, for testing the legal pro. position, on assumed facts. We may take it that there was a parti 681 tion in both cases during the period referred to in the proviso, i.e., before March 31, 1958. We may further take it that the widow and the minor come within the category specified in section 32F (1) (a). We have also to proceed on the basis that the joint family in each case has other assets which remain joint and undivided. Before proceeding further with the discussion it may be proper to read the relevant provision for a break up of the! statutory limbs: "32F. (1) Notwithstanding anything contained in the proceeding sections (a) where the landlord is a minor, or a widow or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 and for enabling the tenant to exercise the right of purchase, the landlord shall send an intima tion to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31: Provided that where a person of such category is a member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satis fied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family proper ty, and not in a larger proportion. X X X X" Where the landlord is a minor or a widow, as in this case, the tenants ' fight to purchase such land under section 32 is postponed till their disability disappears and one year lapses thereafter. But this embargo. on the exercise of the fight of purchase by the tenant does not operate if the property belongs to a joint family and there is a partition therein and the land in question is allotted to the person under disability. What the section insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; and (b) the Mamlatdar is satisfied that the share of such person in the land is separated in the same proportion as the share of that person in the entire joint family property and not in a larger proportion. We are dealing with an agrarian reform law whose avowed object is to confer full proprietorship on tilling tenants and it is a fact of common knowledge that landlords resort to cute agrarian legal engineering to circumvent the provisions. The legislature, with local knowledge of famil iar manipulations and manouvres calculated to 682 defeat land reforms, makes widely worded provisions the 'why ' of it may not be easily discernible to the Court. We have to give full force and effect without whittling down or supplying words. Nor can the Court presume the mischief and remedy the evil by interpretative truncation. A blend of the grammatical and the teleological modes of construction is the best and that is what has been done by the High Court. We are free to agree that the involved drafting of the section has had its share in the marginal obscurity of meaning. But our legislative process, not an unmixed bless ing, works under such instant stress and ad hoc haphazard ness that the whole piece when produced makes experienced draftsmen blush. Reform of the inherited lawmaking method ology may save court time and reduce litigation. Be that as it may, we have to wrestle with the language of the Proviso to decode its true sense. The broad idea is to vest full ownership in the tenan try. A compassionate exception is made in favour of handi capped landlords who cannot prove their need to recover their land on approved grounds. These disabled categories include infants and widows. But if the lands belong to joint families of which they are members, the raison d 'etre for such protection does not exist because the manager of this joint family takes care of its collective inter ests. Where, however, there has been a partition of the joint family, then the widow or minor has to stand on her or his own disabled legs and so the Proviso to section 32F (1) (a) was brought in by amendment to give them protection for the period of the disability and a little longer. But every ruse to save the lands is used by landlords and so, once it was in the air that minors and widows may be exempted, a spate of partitions perhaps ensued. Joint living is the dear, traditional Hindu way of life but jettisoning jointness to salvage ,land is dearer still. Blood is thicker than water, it has been said; but in this mundane world, property is thicker than blood: So partition deeds, conven iently confined to land, became a popular art of extrica tion. And the Legislature, anxious to inhibit such abuse, while willing to exempt genuine, total separations, condi tioned the Proviso under consideration by insisting that the separation should be from the whole joint family assets and not a tell tale transaction where agricultural lands .alone are divided and secondly, even where there is a total parti tion, only a fair proportion of the lands is allotted to the disabled person. In this light, we may read the Proviso. To steer clear of possible confusion we may agree that partial partition may be legally permissible and the Hindu law does not require investigation into the motives or motivelessness behind the partition. We also accept that division in status is good enough to end commensality or jointness under the personal law. But we are now in the jurisdiction of land reform legislation and the Legislature, with a view to fulfil its objectives, may prescribe special require ments. The Court has to give effect to them, in the spirit of agrarian reform and not read down the wide words on judicial suppositions. 683 Here the Proviso can rescue the widow or the minor only if the prerequisites are fairly and fully fulfilled. Sec tion 32 states that the tenants shall be deemed to have purchased the tenanted land on the Tillers ' Day. The Tribu nal suo motu takes action to determine the purchase price. But all this is kept in abeyance if the landlord belongs to the disabled category and qualifies under section 32F (1). The crucial issue is whether the Proviso applies even if the separation of the widow or minor is restricted to agricul tural lands. Shri Wad and, Shri Tarkunde vehemently urge that it is none of the concern of the agrarian law what happens to the other assets of the joint family, so long as the lands are divided in fair proportion. Shri Datar presses what the High Court has laconically reasoned, viz., that it is possible to defeat the scheme by division of the lands alone. Fox one thing, in most such partial parti tions, inspired by the desire to avoid the land reforms in the offing, the Legislature can, as a policy decision, insist on a whole partition, to reduce the evasion. More over, there will be a sudden fancy for allotting all the good lands to the share of widows and minors, depriving the tenants of their legitimate expectations. And, if lands and other assets are to be divided, then less lands will go to the disabled persons or even none. For instance the house may be allotted to the widow and the lands taken over by adult males. The ornaments may all go to the woman, the agriculture to the men. We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided to lay down conditions and the words of the text must be assigned full effect. The Proviso clearly states that the disabled person 's share 'in the joint family ' must have been 'separated by metes and bounds '. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent, is not separated from the joint family. Notional division or divi sion in status also may not be enough because the Act in sists on separation 'by metes and bounds '. Ordinarily 'metes and bounds ' are appropriate to real property, mean ing, as the phrase does, 'the boundary lines of land, with their terminal points and angles '. In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated. The ineptness and involved structure and some ambiguity notwith standing, the sense of the sentence is clear. The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more, the section uses the expressions 'the share of such person in the joint family ', 'the share of such person in the land ', 'the share of that person in the entire joint family property '. Thus it is reasonable to hold that when the expression used is 'the share of such person in the point family. ', it is not ' confined to the share in the land only. It really means his share 'in the entire joint family property '. Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property, the proportion that the allot ment of the land bears to his share in the entire joint 684 family property with a view to see that there is no unfair manouvre to defeat the scheme of the Act. The necessary postulate is that there is a division in the entire joint family property. Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint family properties. We are therefore in agreement with the interpretation adopted by the High Court. In the cases under appeal there is no division of all the joint family properties. Only the landed properties have been separated. The appeals there fore fail and are dismissed. In the circumstances, we direct parties to bear their costs. S.R. Appeals dis missed.

The appellant ,who was the Additional District Magis trate in overall charge ,of the Nizarat and the Land Acqui sition sections of the Collectorate was charged for criminal misconduct under section 5(2) read with section 5(1)(c) and 5(1 ) (d) of the Prevention of Corruption Act, 1947. The allegation against the appellant was that he withdrew a sum of Rs. 10,000/ on 9 1 1965 on the ground that he wanted to distribute the said amount amongst the villagers whose land was acquired as the compensation; that in fact the appellant never wanted to distribute the said amount and that he retained,the money with him for about 6 months dishonestly and only after that the money was deposited in the Treasury. The defence of the appellant was that the Secretary of the Works Department called a meeting in the Secretariat on 25 9 1964 and that the appellant was expressly directed to proceed to the spot and persuade the villagers to accept the compensation money; that it was pursuant to that mandate that the appellant withdrew the money on 9 1 1965; that he could not go to the village in question in that day because one of the officers who was to accompany him was not avail able; that he, therefore, again deposited the money back with the Nazir and collected the money from him again on 20 1 1975; that he went there along with several officials; that the villagers, however, refused to accept the compensa tion. The appellant was, however, hopeful of getting the compensation increased and to persuade the villagers to accept the increased compensation. He, therefore, on his return handed over the money to the Nazir, however, asked him not to deposit the same in the Treasury so that cash would be readily available as soon as needed. Nazir was examined by the prosecution and he denied having received the money as suggested by the appellant. Secretary of the Works Department was not examined by the prosecution. The Land Acquisition Officer PW 8 deposed that the Secretary directed the appellant to take action for payment of the compensation money to the villagers and that the appellant should personally persuade the villagers to accept the compensation. The said witness was, however, declared hostile on the ground that he did not state to the Police that when the appellant and the Executive Engineer visited the village they did not persuade the villagers to receive the compensation amount. PW 7 the Executive Engi neer deposed that he accompanied the appellant to the vil lage and that the appellant tried to persuade the villagers to receive the compensation but that they refused to accept the same. This witness was also declared hostile because of certain minor omissions in his statement before the Police. PW 6, one of the villagers also deposed that the appellant persuaded them to give up possession but the villagers did not agree. This witness was also declared hostile because he omitted state some facts before the Police. The Trial Court and the High Court relying on the evi dence of Nazir and certain documents convicted the appellant under section 5(1)(c) and 5(1)(d) read with section 5(2)of the Prevention of Corruption Act, 1947. 12 1104SCI/76 440 Allowing the appeal by Special Leave, HELD: 1. In a charge of misappropriation once the en trustment of money is proved and although the onus to prove the entrustment is on the prosecution. if the explanation of the accused is found to be false he must be presumed to have retained the money with himself. [444 A B] Jaikrishnadas Manohardas Desai and Anr. vs State of Bombay, 324; followed. Three principles of criminal jurisprudence which are well settled are as under: (i) that the onus ties affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weak ness or falsity of the defence version while prov ing its case; (ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty; and (iii) that the onus of the prosecution never shifts. [444 G H, 445 A] 3. Under section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused but the said section does not at all indicate the nature and the standard of proof required. It is suffi cient if the, accused is able to prove his case by the standard of preponderance of probabilities as envisaged by section 5 of the Evidence Act. [445 A B] Harbhajan Singh vs State of Punjab, ; , 241 and State of U.P. vs Ram Swarup & Anr. [1975] 1 S.C.R. 409, 416 17, followed. The accused succeeds if the probability of his version throws doubt on the presecution case. He need not prove his case to the hilt. It is sufficient for the defence to give a version which competes in probability with the prosecution version for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the court. [445 B C] 4. In a criminal trial it is not at all obligatory on the accused to produce evidence in support of his defence and for the purpose of proving his version he can rely on the admissions made by prosecution witnesses or on the documents filed by the prosecution. The courts below were not justified in drawing adverse inference against the accused for not producing evidence in support his defence. The prosecution cannot derive any strength or support from the weakness of the defence case. [446 E G] 5. The courts below erred in basing conviction of the appellant on the sole testimony of the Nazir completely ignoring the important admissions made in favour of the accused by other prosecution witnesses, some of whom were declared hostile and some were .not. [446 H, 447 A] 6. No explanation is coming forth why the Secretary, Works Department Who was a Government servant, has not been examined. It was a part of the prosecution case that in the said meeting the Secretary did not direct the appellant to go to the village for making payment. The prosecution ought to have examined the Accountant who was a material witness in order to unfold the prosecution narrative itself. The court drew adverse inference for his non examination. [447 D:E] 7. Section 154 of the Evidence Act confers. a discretion on the court to permit a witness to be cross examined by a party calling him. The section confers a judicial discretion and must be exercised judiciously and properly in the inter est of justice. The court will not nor.m. ally allow a party to cross examine his own witness and declare the same hostile unless the court is Satisfied that the statement of the witness exhibits an element of hostility. or that he has resiled from a material statement which he made before an earlier authority. [448 G H, 449 A] 441 Dahyabhai Chhaganbhai Thakker vs State of Gujarat, ; , 368. 69. 70 followed. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross examine his own witnesses cannot be allowed. The contingency _of permitting the cross examina tion of the witness by the party calling him is an extra ordinary phenomenon and permission should be given only in special cases. [449 G H, 450 C] 8. On the facts the court found that the Trial Court wrongly exercised its discretion in permitting the prosecu tion to cross examine its own witnesses. [451 F] 9. Merely because a witness is declared hostile it does not make him unreliable so as to exclude his evidence from consideration altogether. [450 E F] Bhagwn Singh vs State of Haryana, ; , 391 92 followed. The court found that the defence version was ren dered probable by the testimony of witnesses as well as documents. [457 A D] 11. The Court found that the Nazir was not a reliable witness and that the courts below ought not to have acted on his sole testimony. [455 C]

100 and 101 of 1956. Petitions under Article 32 of the Constitution for writs in the nature of Habeas Corpus. N. C. Chatterjee, Sadhan Chandra Gupta and Janardhan Sharma, for the petitioners. C. K. Daphtary, Solicitor General for India, Porus A. Mehta and R. H. Dhebar, for the respondents. September 17. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. These are petitions under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus. On 26th January 1956 the District Magistrate, Than;, passed orders under section 3(2) of the IV of 1950 (hereinafter referred to as the Act) for the detention of the petitioners, and in execution of the orders, they were arrested on 27th January 1956. The next day, the District Magistrate sent his report to the State Government which on 3rd February 1956 approved of the same. Meantime, on 30th January 1956 the District Magistrate formulated the grounds on which the orders of detention were made, and the same were communicated to the petitioners on 31st January 1956. A copy of these grounds was sent to the State Government on 6th February 1956. The petitioners challenge the validity of the detention on two grounds. They contend firstly that the grounds for the order of detention which were furnished to them under section 7 of the Act are vague, 646 and secondly that the requirements of section 3 (3) of the Act had not been complied with, in that those grounds had been sent to the State Government by the District Magistrate, not along with, his report on 28th January 1956, but on 6th February 1956, after the State Government had approved of the order. There is no substance whatsoever in the first contention. The communication sent to the petitioners runs as follows: "During the monsoon season in the year 1955, you held secret meeting of Adivasis in Umbergaon, Dhanu, Palghar and Jawhar Talukas of Thana Distric 't at which you incited and instigated them to have recourse to intimidation, violence and arson in order to prevent the labourers from outside villages hired by landlords from working for landlords. As a direct result of your incitement and instigation, there were several cases of intimidation, violence and arson in which the Adivasis from these Talukas indulged. Some of these cases are described below. . " Then follows a detailed statement of the cases. It is argued for the petitioners that no particulars were given as to when and where the secret meetings were held in which they are alleged to have participated, and that the bald statement that they took place during the monsoon season was too wide and vague to be capable of being refuted. But then, the particulars Which follow give the dates on which the several incidents took place, and it is obvious that the meetings must have been held near about those dates. The communication further states that it is not in the public interests to disclose further facts. Reading the communication as a whole, we are of opinion that it is sufficiently definite to apprise the petitioners of what they were charged with and to enable them to give their explanation therefor. That was the view taken by Chagla, C. J. in the applications for habeas corpus, which the petitioners moved in the High Court of Bombay under article 226 of the Constitution, and we are in agreement with it. The complaint that the grounds are vague must therefore fail. As regards the second contention, it will be usefu 647 to set out the relevant sections of the Act bearing on the question: Section 3(1) "The Central Government or the State Government may (a)if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i)the defence of India, the relations of India with foreign powers, or the security of India, or (ii)the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential to the community; or (b)if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) Any of the following officers, namely, (a) District Magistrates, (b) Additional District Magistrates specially empowered in this behalf by the State Government, (c) the Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad, (d) Collector in the State of Hyderabad may if satisfied as provided in sub clauses (ii) and (iii) of clause (a) of sub section (1) exercise powers conferred by the said sub section. (3) When any order is made under this section by an officer mentioned in sub section (2) he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order made after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government. 648 (4) Where any order is made or approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have bearing on the necessity for the order". Section 7 (1) "Where a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose". On these sections, the argument of Mr. Chatterjee for the petitioners is that section 3 (3) requires that when an order of detention is made by one of the authorities mentioned in section 3(2) in this case it was so made that authority should forthwith report the fact to the State Government together with the grounds on which the order was made; that this provision is clearly intended to safeguard the rights of the detenu, as it is on a consideration of these grounds that the Government has to decide whether it will approve of the order or not;, that when therefore the grounds had not been made available to the State Government before they had approved of the order, as happened in the present case, there was a clear violation of the procedure prescribed by the statute, and that the detention became illegal. Now, it is clear from the affidavit filed on behalf of the respondent that when the District Magistrate sent a report under section 3(3) on 28th January 1956, he did send a report not merely of the fact of the making of the order of detention, but also of the materials on which he had made the order. The contention of the petitioner is that the grounds which 649 were formulated on 30th January 1956 and communicated to them on 31st January 1956 should also have been sent along with the report. The question is whether what the District Magistrate did was sufficient compliance with the requirements of section 3 (3), and that will depend upon the interpretation to be put upon the words "grounds on which the order has been made" occurring in that section. Construing these words in their natural and ordinary sense they would include any information or material on which the order was based. The Oxford Concise Dictionary gives the following meanings to the word "ground": 'Base, foundation, motive, valid reason '. On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as grounds therefor. But it is contended by Mr. Chatterjee that the expression "grounds on which the order has been made" occurring in section 3(3) is, word for word, the same as in section 7, that the same expression occurring in the same statute must receive the same construction, that what section 3 requires is that on the making of an order for detention, the authority is to formulate the grounds for that order, and send the same to the State Government under section 3(3) and to the detenu under section 7, and that therefore it was not sufficient merely to send to the State Government a report of the materials on which the order was made. Reliance was placed on the following passage in Maxwell 's Inter predation of Statutes, 10th Edition, page 522: "it is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act". The rule of construction contended for by the petitioners is well settled, but that is only one element in deciding what the true import of the enactment. is) to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute. "The presumption", says Craies, "that the same words are used in the same meaning is however very slight, and 650 it is proper 'if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act" '. (Statute Law, 5th Edition, page 159). And Maxwell, on whose statement of the law the petitioners rely, observes further on: "But the presumption is not of much weight. The same word. may be used in different senses in the same statute, and even in the same section". (Interpretation of Statutes, page 322). Examining the two provisions in their context, it will be seen that section 3(1) confers on the Central Government and the State Government the power to pass an order of detention, when the grounds mentioned in that sub clause exist. When an order is made under this provision, the right of the detenu under section 7 is to be informed of the grounds of detention, as soon as may be, and that is to enable him to make a representation against that order, which is a fundamental right guaranteed under article 22(5). Coming next to section 3(2), it provides for the power which is conferred on the State Government under section 3(1) being exercised by certain authorities with reference to the matters specified therein. This being a delegation of the power conferred on the State Government under section 3(1), with a view to ensure that the delegate acts within his authority and fairly and properly and that the State exercises due and effective control and supervision over him, section 3(3) enacts a special procedure to be observed when action is taken under section 3(2). The authority making the order under section 3(2) is accordingly required to report the fact of the order forthwith to the State along with the grounds therefor, and if the State does not approve of the order within twelve days, it is automatically to lapse. These provisions are intended to regulate the course of business between the State Government and, the authorities subordinate to it exercising its power under statutory delegation and their scope is altogether different from that of section 7 which deals with the right of the detenue as against the State 651 Government and ' its subordinate authorities. Section 3(3) requires the authority to communicate the, grounds of its order to the State Government, so that the latter might satisfy itself whether detention should be approved. Section 7 requires the statement of grounds to be sent to the detenu, so that he might, make a representation against the order. The purpose of 'the two sections is so different that it cannot, be presumed that the expression "the grounds on which the order has been made" is used in section ' 3(3) in the same sense 'Which it bears in section 7. That the legislature could not have contemplated that the grounds mentioned in section 3(3) should be, identical with those referred to in section 7 could also be seen from the fact that whereas under section 7(2) it is open to the authority not to disclose to the detenu facts if it considers that it would be against public interests so to do, it is these facts that will figure prominently in a report by the subordinate authority to the State Government under section 3(3),and form the basis for approval. If the grounds which are furnished under section 3(3) could contain matters which need not be communicated to the detenu under section 7, the expression "grounds on which the order has been made" cannot bear the same meaning in both the sections. There is also another reason in support of this conclusion. When the authority mentioned in section 3(2) decides, on a consideration of the materials placed before it, to act under that section and orders detention, it is required by section 3(3) to, report that fact with the grounds therefore to the State Government forthwith. But under section 7, the duty of the authority is to communicate the grounds to the detenu, as soon as may be. Now, it has been held that as the object of this provision is to give the detenu an opportunity to make a representation against the order, the grounds must be sufficiently definite and detailed to enable him to do so. It is obvious that the communication that has to be served on the detenu under section 7 of the Act is a formal document setting out the grounds for the order and the 652 Particulars in support thereof, subject, of course, to section 7(2); whereas the report to the State under section 3(3) is a less formal document in the nature of a confidential inter departmental communication, which is to contain the particulars on which the order was made. It could not have been intended that the contents of the two communications which are so Dissimilar in their scope and intendment should be identical. Mr. N. C. Chatterjee also cited certain observations of Kania C.J. in State of Bombay vs Atma Ram Sridhar Vaidya(1) as supporting his contention that the grounds which are furnished to the detenu must have been before the State Government before it approves of the order. Said the learned Chief Justice: "It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made". But the grounds referred to in the above passages are the reasons for making the order, not the formal expressions in which they are. embodied, and that will be clear from the following observation further on: "By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts". Our conclusion is that the failure on the part of the District Magistrate of Thana to send along with his report under section 3(3), the very grounds which he subsequently communicated to the detenu under section 7 is not a breach of the requirements of that sub section, and that it was sufficiently complied with when he reported the materials on which he made the order. The second contention of the petitioners also fails, and these applications must therefore be dismissed. (1) ; , 178.

The appellant filed a suit for recovery of certain amounts due from the first respondent company. By the time the suit came up for hearing the first respondent company was superseded and an Administrator was appointed. The suit was compromised and a consent decree was passed, the company being held liable and directed to make payment of Rs. 2.85 lakhs with interest at 6% from the date of the decree. The first respondent company received a sum of about Rs. 15 lakhs from the Custodian of Enemy Property as compensation in respect of certain Cotton mills owned by it. The third respondent was appointed a receiver in respect of this amount and he deposited a sum of Rs. 8 lakhs of the compensation amount into a fixed deposit account with a Bank. The decretal amount having become due and payable the appellant by an order dated April 12, 1978 obtained an interim attachment of the money in the fixed deposit account of the bank, which was confirmed by order dated April 24, 1978 on May 4, 1978 upon a petition by the appellant, the Court directed the receiver, 3rd respondent to pay the decretal amount to the appellant out of the amount in the fixed deposit account of the judgment debtor with the Bank. As this order was not implemented, the appellant again moved the Court and by its order dated the May 24. 1978 the Court directed the receiver to pay the amount to the decree holder and the Bank, the keeper of the fixed deposit account of the receiver was also put under an obligation not to raise any objection on the receiver withdrawing the money and paying the same to the decree holder. These directions not being obeyed, the appellant moved the Court for holding the third respondent receiver and the fourth respondent Bank in contempt and for passing appropriate orders for punishing them for contempt. Respondents 5 and 6 were in the meanwhile appointed as joint receivers. A solemn undertaking was given by the Bank to the Court that the decretal amount would be paid. In view of the undertaking the Court did not pass any orders on the contempt application. On March 7, 1980 the Court declined to grant the prayer for discharge of the receiver 3rd respondent and directed that the balance after payment of the decretal amount in the fixed deposit account will be held by the receiver. The Court however at the instance of the joint receivers Respondents 5 and 6 stayed the order for a fortnight. 450 Three appeals were filed against the order dated March 7, 1980. Two appeals were preferred by the Ist respondent company and one appeal was preferred by 2nd respondent, State of West Bengal. In the appeals preferred by the Ist respondent company the High Court by its order dated March 27, 1980 granted ad interim stay in the matter, by directing that the Bank would not disburse any amount in respect of the fixed deposit account and by issuing an injunction restraining the appellant from obtaining any payment. Allowing the appeals to this Court, ^ HELD: The order made by the Division Bench on March 27, 1983 and continued on September 9, 1980 are set aside. The order dated May 4, 1978 and May 24, 1979 as also the undertaking given by the Manager of the 4th respondent Bank through its Counsel on June 7, 1979 would be revived and would be effective and will have to be implemented. The 4th Respondent Bank will pay the decretal amount to the appellant, the appellant shall pass a receipt acknowledging receipt and the liability of the 4th Respondent company to the 3rd Respondent receiver shall thereupon stand discharged. Before the amount is paid, the appellant shall give security to the satisfaction of the High Court and also an undertaking on affidavit that in the event of the appeals being allowed, the appellant shall deposit the said amount with the High Court within one month from the date of the order of the appellate Bench. [459 C F] 2. This Court ordinarily does not interfere with interim orders unless and until manifest injustice convulsively shakes it. [455 E] In the instant case the interim order made by the Division Bench on September 9, 1980 confirming the ad interim order dated March 7, 1980 has to be interfered to a limited extent to avoid the impression that the Court 's process can be lightly trifled with. [458 H] 3. Failure to comply with the Court 's mandatory directions led the appellant to file a petition for contempt. The alleged contemners impleaded were Ist respondent company and the 4th respondent Bank. At the hearing, counsel for the 4th respondent unreservedly agreed to comply with the order of the Court. It was because the Bank unreservedly and unconditionally agreed and undertook to pay up the amount that the motion for taking action in contempt was discharged by the Court. [457 E, H] 4. The order dated June 7,1979 is not a fresh order on merits. It was merely an implementation of the order dated May 24, 1979 which appears to have become final and binding. [158 A] 5. The three appeals were preferred against the order dated March 7, 1980. That order had nothing to do with the order dated May 24, 1979 or the order dated June 7, 1979. At any rate, the order dated May 24, 1979 appears to have become final. [458 D]

ivil Appeals Nos. 928 and 929 of 1975. (From the Judgment and Order dated 8 10 1974 of the Allahabad High Court in Civil Writ Nos. 2169 and 2276 of 1974). F.S. Nariman, D.N. Misra and O.C. Mathur, for the appellant. S.C. Manchanda and O.P. Rana, for the respondents. ARGUMENTS APPELLANTS 1. Civil Appeal No. 928 of 1975. In this Appeal three questions arise for determination: (i) Whether in the facts and circumstances of the case the proviso to section 9(1) of the was applicable so as to enable the State of Uttar Pradesh to levy and collect Central Sales Tax in respect of the subsequent sales of coal effected by the Appellants to consum ers in the State of U.P. ? (ii) Whether the Sales Tax Officer, Moradabad had no jurisdiction to rectify the assessment for the year 1966 67 as there was no error apparent on the face of the record of the original assess ment (section 22 of the U.P. Sales Tax Act, 1948)? (iii) Whether the order of rectification passed under section 22 of the U.P. Sales Tax Act on 26th March, 1974 (for the assessment year 1966 67) and communicated to the Appellants on 31st March, 1974 was barred by limitation as it could not be said to be "within. three years from the date of" the original assessment order dated the 27th March, 1971 ? II. Re: Whether in the facts and circumstances of the case the proviso to Section 9(1) of the was applicable so as to enable the State of Uttar Pradesh to levy and collect Central 28 Sales Tax in respect of the subsequent sates of coal ef fected by the Appellants to consumers in the State of U.P. ? (a) The proviso to section 9(1) of the does not apply either : (i) to subsequent sales (in the course of inter State trade or commerce) of declared goods i.e. goods declared in section 14 to be of spe cial importance in inter State trade or commerce; or (ii) to sale of goods to persons other than registered dealers; (b) The argument 'in support of the submission that the proviso to section 9(1 ) does not apply to declared goods is as follows : Section 8(1) and 8(2) of the deals separately with two types of goods, namely, (i) goods of the description referred to in sub section(3) [see section 8(1)(b) and (ii)] declared goods [see section 8(2)(a)]. The rates of tax for the two types of goods have been and are differently prescribed in sub section (1) and sub section (2) of section 8 especially since the Amending Act VIII of 1963. The expression "goods of the description referred to in sub section (3)" in section 8(1) originally in cluded declared goods intended for re sale [see section 8(3)(a)] as originally enacted in the (reproduced in Chaturvedi 's , 4th .Edition, p. 548). Sub section (3) of section 8 then read as follows: "(3) The goods referred to in sub section (1) (a) in the case of declared goods, are goods of the class or classes specified in the certifi cate of registration of the registered dealer purchasing the goods as being intended for resale by him; and (b) in any 'other case, are goods of the class or classes specified in the certificate of regis tration of the registered dealer purchasing the goods as being intended for re sale by him or for use by him in the manufacture of goods for sale or for use by him in the execution of any; contract; and in either case include the containers or other materials used for the packing of goods of the class or classes of goods so specified. " By the Amending Act VIII of 1963 (which raised the rate of tax under section 8(1) to 2 per cent), clause (a) of section 8(3) stood deleted. The effect of this deletion was 29 that since 1963.declared goods fell outside the purview of section 8(3) Section 8(4) only applies to sales of goods of the description referred to in sub section (3), since the provisions of that sub section have express reference to the provisions of section 8( 1 ). For the proviso to section 9( 1 ) being applicable it is necessary that the registered dealer effecting the subsequent sale obtained or could have obtained the form prescribed in section 8(4)(a) i.e. Form 'C ' prescribed under rr. 12 and 13 of the Central Sales Tax (Registration and Turn over) Rules, 1957 (see 'pages 25 and 27 of Chaturvedi 's , Fourth Edition). In the present case, the appellants neither obtained nor could have obtained Form 'C ' from .their purchaser since section 8(4) [read with section 8(1) and (3)] did not (after 1963) apply to declared goods. It is submitted that to accept the arguments urged on behalf of the Respondents that section 8(4)(a) [read with section 8(1) and (3)] dealt with declared goods as well, would be to give no meaning to the provisions contained in section 8(2). Besides, as held by Their Lordships in State of Tamil Nadu vs Sitalakshmi Mills & Others C ; at 412 para 6), section 8 deals with three different classes of cases declared goods do not fall within the class mentioned in section 8 ( 1 ). The argument that the charging section 6 does not make any differentiation between declared and undeclared goods is of no avail. Section 6(1) itself commences with the words "Subject to the other provisions contained in this Act . . ". If the effect of any other provision is to take away liability to pay sales tax, effect would have to be given to that other provision notwithstanding the charging section [see State of Mysore vs L. Setty 16 S.T.C. 231,239 (S.C.)]. Declared ' goods are clearly intended by the framers of Central Tax Act, 1956 to receive preferential treatment not only in respect of local sales tax on local sales (see section 15), but also Central Sales Tax in sales effected during the course of inter State trade or commerce [see section 8(2)]. (c) Even assuming that section 8(4)(a) [read with section 8(1) and (3) include within its purview "declared goods", the proviso to section 9(1) is still inapplicable for the following reason : For the proviso to section 9(1) to be applicable and. for the State of U.P. to have jurisdiction to levy and collect the Central Sales Tax on subsequent sales, it is necessary that the registered dealer effecting the subsequent sales (by endorsement of documents of title like Railway Receipt during the course of the movement of the goods from one State to another) either "obtained or as the case may be 30 could have obtained" the Form prescribed. in section 8(4)(a) in connection with the purchase of such goods involved in the subsequent sale. Such a form could only be obtained under section 8(4)(a) from the appellants ' purchasers if the appellants ' sales were to be "a registered dealer" [see section 8(1) (b)]. Admittedly in the present case the appellants though registered dealer for the rele vant year in question did not sell coal to any registered dealer [see the averments in para 11 of the Writ Petition, page 62 Vol. 2 which have not been denied in the Affidavit in Reply (para 8 page 109 Vol. 2]. Therefore, even assuming that the provisions of section 8(4)(a) [read with section 8(1) and (3)] were applicable to declared goods (even after the Amending Act VIII of 1963), the sales result ing in the turnover of Rs. 5,59,172.38 not being to registered dealers, the provisions of section 8(1)(b) were not attracted. Consequently the form pre scribed under section 8(4)(a) Form 'C ' could not have been obtained by the appellants ' purchaser from the prescribed authority. Consequently the appel lants could not obtain from their purchaser such form under section 2(4)(a). Accordingly the last part of the proviso to section 9(1) not being satisfied, the State of U.P. had not jurisdiction to levy and collect Central Sales Tax from the Appellants. Re: Whether the Sales Tax Officer, Moradabad had no jurisdiction to rectify the assessment for the year 1966 67 as there was no error apparent on the face of the record of the original assessment (Section 22 )of the U.P. Sales Tax Act, 1948) ? It has been stated in the order of rectification dated the 26th March, 1974 passed under section 22 of the U.P. Sales Tax Act, 1948 that (page 96, Vol. 2): "In the present case of the assessee tiffs error is apparent because if this fact that it was registered under the had been placed before the Hon 'ble Allahabad High Court in the case of Karam Chand Thapar & Bros. (Coal Sales) Ltd., Moradabad for the year 1965 66 the decision would have been against them as have been happened in the above mentioned two cases.) The error apparent on the face of the record, which is a condition precedent to invoking the rectification provision (section 22) is that the appellants were treated as unregistered dealers by the High Court in the decision for the earlier assessment year 1965 66 (the judgment of the Hi h Court has been extracted at pages 71 78 of Vol. 2. But in section 22 the error has to be an "error apparent on the face of the re cord" of the assessment i.e. for the assessment year 1966 67. This assessment order is dated 27th March, 1971 and a copy of it is at pages 31 79 83 of VoL 2. In that order it is specifically mentioned (page 79 viz). : "10. Whether registered or not: Yes". Thus it was known to the Sales Tax Officer passing the original assessment order that the appellants were in fact registered dealers. An error apparent on the face of the record must be an error which is "glaring and obvious" [see ; , 150 (S.C.)]. Besides, there is a distinction between a mere erroneous decision and a decision which could be characte rised as vitiated by "error apparent". A rectification is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. It lies only for patent error (see Thungabhudra Industries Ltd. vs Government of Andhra Pradesh ; , 186) where the expression "error apparent on the face of the record" in 0.47, r i, C.P.C. was interpreted by the Supreme Court). In that case was also said that an error apparent on the face of the record was one where "without any elaborate argument one could point to the error" (page 186). This is also the. view expressed in a Sales Tax Case Master Construction Co. 17 S.T.C. 360, 365 366 (Subba Rao, J.). In the present case, it is submitted that the view of the Sales Tax Officer, Moradabad who passed the original assessment order dated 27th March, 1971 following the deci sion of the Allahabad High Court dated the 24th July, 1970 in Civil Miscellaneous Writ No. 4356 of 1969 (pages 71 to 78) was not patently erroneous. As a matter of fact the correctness of the subsequent decisions of the Allahabad High Court is being doubted in the present Appeal and there is no pronouncement of your Lordships on the question viz., interpretation of the proviso to section 9( 1 ). Besides, it cannot be said that at the time when the original assessment order was passed there was a manifest error. Moreover, even as a result of the subsequent decisions of the Allahabad High Court it cannot be said that what was not an error on 27th March, 1971 became an error on 26th March 1974 (the date of the rectification order under section 22). In any event, even assuming that there was an error, that error is not apparent on the face of the record of the original assess ment it is a matter in which the arguments, to say the least, are evenly balanced and a decision of the Highest Court is now awaited. In the circumstances there was no jurisdiction in the Sales Tax Officer, Moradabad to rectify and set aside the original order of assessment IV. Re: Whether the order of rectification passed under Section 22 of the U.P. Sales Tax Act on 26th March, 1974 (for the assessment year 1966 67) and communicated to the Appellants on 31st March, 1974 was barred by limitation as it could not be said to be "within three years from the date. of" the original assessment order dated the 27th March, 1971 ? It is submitted that the period of limitation under section 22 of the U.P. Sales Tax Act, 1948, runs from the date on which the order of rectification is communicated to the assessee which would enable the assessee to file an appeal under section 9 of the U.P. Sales Tax Act, 1948. The period of limitation for filing an appeal is 30 days from the date of service of the copy of the order appealed against. It is submitted that an order of rectifi cation is not complete as against the assessee unless it is duly communicated to him. The order of rectification af fects the rights and liability of an assessee and it is essentially fair and just that it should be communicated to the party as stated by Your Lordships in a case under the Land Acquisition Act where the phrase "date of the Collec tor 's award" was being considered. Your Lordships observed : " . If the award is treated as an admin istrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communi cated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writ ing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party con cerned either actually or constructively. If the award is. pronounced in the presence of the party whose rights are affected by it it can be said to be made when pronounced. If the date for the pro nouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be commu nicated to the said party even if the said party is not actually present on the date of its pronounce ment. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression 'the date of award ' used in the proviso must mean the date when the award is either commu nicated to the party or is known by him either actually or constructively. In our opinion, there fore, it would be unreasonable to construe the words from the date of the Collector 's award used in the proviso to section 18 in a literal or mechanical way." (A.I.R. 1961 S.C. 1500, 1503 [1962] 1 S.C.R. 676, 683684). It is submitted that on an analogy of reasoning the words "the date of any order passed by him" in section 22(1) of the U.P. Sates Tax Act, 1948 must be construed to mean the effective date of an order of rectification viz. the date when it is communicated. In the instant case the order was communicated after three years from the date of the assess ment order and, therefore, the order of rectification is vitiated as being barred by time. 33 V. 1n Civil Appeal No. 929 of 1975 the only question that arises is: Whether in the facts and circumstances of the case the proviso to section 9(1) of the , was applicable so as to enable the State of Uttar Pradesh to levy and collect central sales tax in respect of the subsequent sales of coal effected by the appellants to consumers in the State of U.P. ? The assessment year in question is 1969 70 and the Appellant adopts the arguments urged in Civil Appeal No. 928 of 1975. With regard to whether the sales by the appellants (in 1969 1970) during the course of the movement of the goods from State to State were to registered dealers or to consum ers, there is no indication in the record as to wheth er the sales effected to registered dealers or to con sumers or unregistered dealers. In the event of Your Lord ships holding that declared goods are not covered by the proviso to section 9(1) this would make no difference because it is admitted that the subsequent sales effected by the appel lants were of declared goods namely coal. But in the event of Your Lordships coming to the conclusion that the proviso to section 9 (1 ) may include also subsequent sales of declared goods, then the submission urged is (as in Civil Appeal No. 928 of 1975) that in any view of the matter it is only subsequent sales to registered dealers which would attract jurisdiction of the State authorities under the proviso to section 9( 1 ) and not subsequent sales by the appellants to unregistered dealers or consumers. The fact would be easy of ascertainment by the Sales Tax Officer and it is submit ted that in that event a direction ought to be given that the State of U.P. could levy and collect central sales tax under proviso to section 9 (1 ) in respect of subsequent sales of coal effected by the appellants only to registered dealers and not to unregistered dealers or consumers. short one. It is as to which State has jurisdiction to tax subsequent sales made by a registered dealer. In the instant case, admittedly the appellant is a dealer regis tered in U.P. both under the Central and the U.P. Act. Therefore, the short question which arises for consideration is as to whether in the instant case the State of U.P. would have the jurisdiction to tax such subsequent sales effected by the enforcement of documents t0 parties in U.P. ? There is a specific provision in the Act, which is proviso to section 9 (1 ), to cover cases such as the present case. Section 9(1) reads: "The tax payable by any dealer under this Act on sales of goods effected by him in the course of interstate trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that gov ernment in accordance with the provisions of sub section (2) in the State from which the movement of goods commence: Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subse quent to the first sale in respect of the same goods, the tax 34 shall, where such sale does not fall within sub section (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form pre scribed for the purposes of clause (a) of sub sec tion (4) of section 8 in connection with the pur chase of such goods." Sub section (2) of section 9 merely provides that the appropriate State on behalf of the Government of India shall assess, 'reassess, collect and enforce payment of tax under the Act as if the ' tax under the Act was a tax payable under the general sales tax law of the State. Therefore, it is that the tax to be collected under the Act is by the appro priate State for and on behalf of the Government of India. In the case of at first sales, the substantive provisions of section 9 (1 ) are clear and unequivocal. Section 9 (1 ) selects out of several States one. particular State and empowers it to levy and collect C.S.T. That State alone has the power to levy the tax and all other States by implica tion are debarred. This was a simple device adopted in order to fix the forum and jurisdiction of the particular State to make the assessment in respect of first sales. A simple test was evolved to avoid multiplicity of imposition of tax by more than one State in respect of the same goods and that was to link the tax with the commencement of the physical movement of the goods on their Journey from one State to another. This was simple to comprehend and exe cute. Therefore, the appropriate State was the one from where the. movement of goods started on their interstate journey. That problem does not concern us here as the States of Bihar and Bengal from where the movement of coal commenced have duly assessed the tax u/s 9 (1) of the Act. The question, however, is which is the State which can tax the subsequent sale in the instant case. For this purpose the proviso had to be enacted as admittedly CST is multipoint in nature and there is no provision for a single point tax. The only exemption is to be found in section 6(2) which is the charging section and if the transaction does not satisfy all the three conditions of section 6(2), viz., (a) the purchaser is a registered dealer, (b) who by a certificate of registration is authorised to purchase his goods, and (c) the selling dealer furnishes to his assessing authority : (i) a certificate duly filled and signed by the registered dealer from whom the goods were pur chased containing the prescribed particulars in a prescribed form obtained from the prescribed au thority, and (ii) a declaration in C Form duly filled and signed by the registered dealer to whom the goods were sold. (see Chaturvedi 's 3rd edition, page 383). No attempt has been made by the appellant assessee in the instant case even to allege, what to say of proof, that the aforesaid three conditions were satisfied. Therefore, section 6(2) which provides for exemption in respect of subsequent sales, albeit of declared or undeclared goods, will have no application. The position therefore would be that the 35 subsequent sales in the instant case would not be exempt u/s 6(2). Therefore, the subsequent shies have to be taxed and the only question is which State would have jurisdiction to assess the subsequent sales. It was fairly conceded that the subsequent sales would be assessable u/s 9 ( 1 ), except sales of declared goods. The argument was built up merely On the omission of el. (a) from section 8(3) of the Act with effect from 1 4 1963. Prior to that date section 8(3) ran as follows: "The goods referred to in clause (b) of sub section (1) (a) in the case of declared goods or goods of the class or classes specified in the certifi cate or registration of the registered dealer purchasing the goods as being intended for resale by him. " The above was omitted by section 2(iii) (a) of the C.S.T. Amendment Act (No. 8 of 1963) with effect from 1st April, 1963. From this omission it was assumed that it was no longer necessary for de clared goods to be specified in the declaration prescribed under rule 12 and the Form C. This assumption is wholly unwarranted and is contrary to the provisions of the Amending Act (No. 8 of 1963), The omission of cl. (a) and certain words in cl. (b) of section 8(3) was necessitated as the legislature probably wanted to do away with the distinction between declared goods and undeclared goods for purposes of section 8(3). Hence it deleted clause (a) in its entirety and the words "in the case of goods other than declared goods" from cl. (b) of section 8(3). Thus with effect from 1 4 63 so far as mentioning of goods in the certificate of registration of purchasing dealer for purpose of re sale etc. are concerned they made only one category and specified the same rate of tax as was applicable u/s 8 ( 1 ) both for declared and undeclared goods, provided Form C was duly submit ted. The above interpretation also finds support from Chaturvedi 's Central Sales Tax Law, 3rd edi tion, 1973 at page 325, paras 7 and 8, which read as : "Clause (a) of section 8(3) was omitted by section 2(iii) (a) of the Amendment Act, 1963 with effect from 1 4 63. Before that the rate of tax for sales covered in sub section (1 ) was 1 p.c. and all the sales or purchases of declared goods under the said Act could be subjected to tax at the rate upto 2% by virtue to section 15 of the principal Act. "Sales covered under sub. section (1) could enjoy a concessional rate of 1 p.c. instead of the state rate of 2 p.o. But when by the CST Amendment Act (No. 8 of 1963) the rate of tax for sales covered by sub section (1 ) was enhanced also to 2 p.o. there was no use of cl. (a) of sub section (3) and it was omitted. "In el. (b) of sub section (3), the opening words 'in the case of goods other than declared goods ' were omitted by section 2(iii) (b) of the C.S.T. Amend ment Act, 1963 with effect from 1 4 63. " 36 Thus it is manifest that the argument laboriously built up had no foundation and the omission of sub cl. (a) from section 8(3), if anything, goes against the contention of the assessee and fully supports the contention of the Department as that Vividly demonstrates that if .there was ever any intention of the legislature to make any distinction between declared and undeclared goods insofar as the sale of such goods was made to government or to a regd dealer that was done away with after 1 4 63. The contention for the Department was that there was never any distinction made between declared and undeclared goods even in the Act and the Rules prior to 1963 64 in the matter of specification of the class or classes of goods in the application under Form A, the certificate under From B and the requisite declaration under Forn C under rr. 5 and 12 of the CST Rules. The only place where the words "declared goods" occur is in section 8(2) (a) which merely provides the rate of tax applicable for sales without furnishing Form C ' and not for any other reason. Thus the Act, the Rules and the Forms make no distinction between declared and undeclared goods whatsoever. The main argument, therefore, has no force and in the absence of the condition u/s 6(2) having been satis fied, declared goods are taxable and the assessee being a regd. dealer registered in U.P. both under the Central Act and the U.P. Act and the subsequent sale having been effect ed by such registered dealer in the State of U.P. the provi so to section 9 (1 ) is clearly attracted. To sum up, in the instant case the State of U.P. would have the jurisdiction to assess, levy and collect C.S.T. on subsequent sales effected, by the assessee under the provi so to section 9 (1 ), provided the following conditions are satisfied: (1) The sale is a subsequent sale made during the movement of goods from the States of W. Bengal and ' Bihar to the State of U.P .This condition was fairly conceded by the learned counsel for the assessee to be satisfied. (2) The subsequent sale is in respect of the same goods. Tiffs was also conceded. (3) That the goods do not fail within section 6(2), that is, the sale was to a registered dealer other than Government, if the goods are of the description referred to in Sub section (3) of section 8. Such subsequent sale would be exempt provided the necessary certificate in Form C is produced. (4) The registered dealer effecting the subsequent sale obtained or could have obtained the form prescribed for purposes of el. (a) of sub. section (4) or section 8, that is, Form C. The last two conditions according to the learned couusel do not require to be satisfied in case of declared goods. As already stated there is no express warrant nor does the scheme of the Act support any distinction for C.S.T. be tween declared and undeclared goods except in the conces sional rate applicable. 37 Section 15 only places restrictions and conditions in regard to intra state sales of declared goods. ' This has no application to intexstate sales and, therefore, the single point tax provided in section 15 cannot be imported into the other provisions of the Act. Therefore, C.S.T. is multi point in the absence of any specific provision to make it single point. The relevant sections are section 3 which artificially determines when sale of goods can be said to take place in the course of interstate trade or commerce. Section 6 is the charging section. It is significant that it charges tax on all sales. Therefore unless there is a specific exemption, sales of both declared and undeclared goods would be taxable. It is well settled that the burden of proof lies heavily on the person ,who claims such exemp tion. Section 6(2) deals with the charge to be levied in respect of a subsequent sale effected by transfer of docu ments to a regd. dealer which would be exempt provided the conditions specified in the proviso thereto are satisfied. These conditions undoubtedly have not been satisfied. The case .of the assessee is that they do not require to be satisfied in the case of declared goods. section 7(3) requires in the certificate of registration under r. 5 and for the purposes of section 8 (1 ) the class or classes of goods to be specified and it is only in respect of those goods so specified that to be exemption or conces sional rate is available and not otherwise. section 8 merely provides the rates of tax on inter state sales. There is a concessional rate of 3% for sales to regd. dealers provided the goods are of the description referred to in section 8(3) which refers to section 7(3) and the application in Form A and the certificate in Form B issued under rr. 3 and 5 of the Rules. Section 8(2) refers specif ically to the concessional rate for declared goods vis a vis undeclared goods. For declared goods it is 3 % being the rate in the appropriate State, and 10% for undeclared goods. Beyond this concessional rate there is no other distinction made between declared and undeclared goods. section 8(3) refers back to section 7(3), rr. 3 and 5 and Forms A and B and only those goods, declared and undeclared, which find a place the certificate are entitled to the conces sional rate and none others. The proviso to section 9(1) specifically covers the instant case. The assessee is a regd. dealer, and the sales do not fall within the exemption u/s 6(2) and being a regd. dealer in U.P. he could have obtained the Form C from the Sales Tax Officer of his Circle. It, therefore, follows that in the instant case there can be no doubt whatsoever that the admitted subsequent sales are taxable in the State of U.P. for and on behalf of the Government of India u/s 9(1) of C.S.T. B. Contentions 2 and 3. These .may be dealt with togeth er. The argument of the learned counsel for the assessee in short was that there was no error apparent on the face of the record and, therefore, 38 section 22 of the U.P. Act read with section 9(2) of the Central Act could not be invoked. It must be remembered that this point is taken in a writ under article 226 when there was no possi bility of the appeal or revisional courts going into the facts of the case. In these circumstances the facts as found by the Sales Tax Officer in his order u/s 22 and by the High Court in its judgment dismissing the writ petition will have to be taken as sacrosanct. At page 92 of volume II is the order u/s 22. At page 94, line 4, it is stated "The assessee is registered in this office under C.S.T. Act and their Central regn. No. is 2931 which had been in existence since 4 12 65. In the case of M/s Karam Chand Thapar & Bros. for the year 1965 66.the High Court had held that sales made by them were exempt from C.S.T. or U.P. Sales Tax and the authorities of Bihar or West Bengal only could assess the tax. Thereafter the Hon 'ble High Court of Allahabad in many cases held that if the assessee was registered under the CST the authority of that State had jurisdiction to make assessments. Therefore, the S.T.O. Morada bad has jurisdiction to assess the assessee. In the meanwhile the High Court of Allahabad held in several cases that only dealers who are registered under the C.S.T. are liable to be assessed under the Act as for example . . " At page 96, line 2 "In the present case of the assessee this error is apparent because if this fact that it was registered under the C.S.T. had been placed before the High Court . . for the year 1965 66, the decision would have been against them as hap pened in the above mentioned two cases. " At page 97, line 4 "In the above mentioned case the error of law is clear because u/s 9(1) the jurisdiction of assessment of tax lies only with that State where from the dealer has received their Central Regn. No. and wherefrom the dealer receives C Form. " Similarly, the judgment of the High Court is at page 1, of volume I and at page 2, last paragraph, the finding is: The petitioner claimed that the turnover of Rs. 30.07 lakhs was exempt from tax and that of Rs. 5.59 lakhs could not be taxed in the State of U.P. The S.T.O. relying upon the observations made by the High Court in petitioner 's own assessment case for the year 1965 66 accepted his case that his turnover amounting to Rs. 5.59 lakhs could not be taxed in U.P. Subsequently in a number of cases this Court ruled that in a case where a dealer effecting a second sale in the course of inter state trade is a registered dealer, sales tax on the turnover of such goods is to be realised in the State where the dealer effecting the sale, is registered." , para 2: "In the instant case we find that while making the assessment order of 27 3 71 and holding that petitioner 's turnover amounting to Rs. 5.59 lakhs was not liable to tax in U.P., the S.T.O. relied upon a decision of this Court which, as subsequently clarified in the case of Shinghal Bros. & Co. vs State did . . . . not lay down that even in the case of a registered dealer effecting a subsequent sale in the course of inter state trade or commerce would not be liable to be taxed in the State where he is registered. Accordingly, the S.T.O. applied the law laid down in this Court 's earlier judgment to the facts of the present case under some misapprehension and it is not disputed that in subsequent cases this Court has very clearly laid down that in the case of a subsequent sale effected during the course of interstate trade and commerce by a regd. dealer the turnover of such sale. is to be assessed in the State where the dealer is registered. It is thus clear that there Was a mistake in the assessment order dr. 27 3 71. The mistake was apparent on the face of the record inasmuch as the S.T.O. applied the observations made by this Court in a case which had been decided on the footing that the concerned dealer was an unregistered dealer to a case where the dealer was admittedly a registered dealer. This mistake did not require any elaborate argu ment or prolonged debate on the merits or on the questions of law involved in the case. " In view of these categorical findings by. two courts that there was a clear and obvious mistake resulting from a mistake which had crept into the judgment of the High Court in the assessee 's own case for the A/year 1965 66 which the S.T.O. was bound to follow and could not ignore, the mistake in the subsequent assessments could be rectified u/s 22 within the period of limitation of 3 years. Action could also have been taken u/s 21 under the U.P. Act for a reassessment .where the period of limitation is 4 years. It is well settled that sections 21 and 22 are not mutually exclusive and the same action may be taken under either of the sections provided the conditions specified therein are satisfied. The notice u/s 22 was issued within the period of three years and there was yet another year to run for action u/s 21, and in these circumstances a technical point of this nature raised in a writ petition should not be countenanced. The main point that the sum of Rs. 5.59 lakhs was taxable not being in dispute as stated by the High Court, no assessee has a vested right to the forum or to succeed on mere technicalities. The contention that the notice u/s 22. and the order passed thereunder should have been communicated to the assessee within three years is wholly unsupported by any authority. Section 22 merely requires the order to be made within three years. No rights of the assessee are af fected by the passing of the order and it is only when the additional demand is served upon him under the provisions of 40 section 22(2) of the Act that the period of limitation for any appeal, revision, etc. would begin to run. Authorities Rectification Glaring and obvious mistake of law ; SC 53 Cal Weekly Notes 869 Cal A .P. Date of order meaning of 34 S.T.C. 257 SC 46 ITR 529 All. SC Pb All. The Judgment of the Court was delivered by GUPTA, J. The appellant in Civil Appeal No. 928 of 1975. M/s. Karam Chand Thapar and Brothers, is a limited company incorporated under the Companies Act, (referred to hereinafter as the Company), and the six branches of the Company at Allahabad, Moradabad, Kanpur, Varanasi, Gorakhpur and Lucknow are the appellants in Civil Appeal No. 929 of 1975. The Company carries on business as coal agents and is registered under the Uttar Pradesh Sales Tax Act, 1948 and the with the Sales Tax Officer at Moradabad in Uttar Pradesh. We shall refer to these two statutes as the U.P. Act and the Central Act for the sake of brevity. The Company used to arrange supply of coal from collieries situate in West Bengal and Bihar to consumers in Uttar Pradesh. The collieries used to send the coal by rail and the railway receipts were pre pared either in the name of the Company or in the name of the consumer in Uttar Pradesh on whose behalf the order for supply of. coal was placed. The collieries sent the bills and invoices in respect of the coal despatched to Uttar Pradesh to the Company 's head office in Calcutta; the Compa ny forwarded the railway receipts to the consumers in cases where the receipts were in the names of the consumers and endorsed the receipts that were in the Company 's name in favour of the consumers for whom the coal had been des patched. These two appeals, brought on certificates of fitness granted by the Allahabad High Court, arise out of two writ petitions filed in the High Court respectively by the Company and its aforesaid branches. The petition filed by the Company leading to Civil Appeal 928, is directed against an order made under section 22 of the U.P. Act giving rise to the question whether section 9 (1 ) of the Central Act was applicable to the case enabling the State of Uttar Pradesh to levy and collect Central sales tax in respect of subsequent sales of coal effected by the Company to consumers in Uttar Pradesh by endorsement of the documents of title; in the other writ petition, filed by the Company 's six branches, the applicability of section 9(1) of the Central Act was 41 one of the points raised in the High Court, but this was the only point urged before us in Civil Appeal No. 929. The assessment year in question in Civil Appeal 928 is 1966 67, and that in Civil Appeal 929 is 1969 70. As the Company 's appeal covers the question involved in the other case and raises two additional questions, we shall state only the facts of Civil Appeal 928 to indicate how these questions arise. In the assessment year 1966 67, the Company filed quarterly returns showing its turnover of coal in two cate gories: (a) turnover in cases where the railway receipts had been prepared in the names of the consumers amounting to Rs. 30,07,439/02p. ; and (b) turnover in cases where the railway receipts had been prepared in the name of the Company but subsequently endorsed in favour of the consumers in Uttar Pradesh amounting to Rs. 5,59,172/32p. The dispute in this case relates to the amount of Rs. 5,59,172/32p. which according to the Company could not be taxed in the State of Uttar Pradesh. Before We proceed further, it would. be convenient to set out the relevant provisions of the two Acts. Taking the Central Act first, section 2(c) de fines "declared goods" as the goods declared under section 14 to be of special importance in inter State trade or commerce. SectiOn 14 which declares certain goods to be of special importance in inter State trade or commerce mentions coal as one of them. Under section 3 a sale or.purchase of goods is deemed to take place in the course of inter State trade or commerce if the sale or pur chase, (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods .during their movement from one State to another. The sales we are concerned with in this case were of this second type. Sub section (1) of section 6 provides that subject to the other provisions of the Act, every dealer shall be liable to pay tax under this Act on sales of goods effected by him in the course of inter State trade or commerce. Sub section (2) of section 6 states that notwithstanding what is provided in sub section (1), any subsequent sale of goods effected by a transfer of documents of title to the goods, (A) to the Government, or (B) to a registered dealer other than the Government, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under this Act. There are two provisos to this sub section, but it is not necessary to refer to them. Section 7(1) requires every dealer liable to pay tax under this Act to apply for registration. Sub section (3) of section 7 provides that if the application is in order, the prescribed authority shall register the applicant and grant to him a certificate of registration in the prescribed form which shall specify the class or classes of goods for the purpose of sub section (1) of section 8. Rule 3 of the Central Sales Tax (Registration and Turnover) Rules, 1957, states that an application for registration under section 7 shall be made in Form A, and Form A requires the purpose or purposes for which the goods or 5 1003 SCI/76 42 casses of goods are purchased by the dealer in the course of interState trade or commerce to be speci fied; as would appear from the Form, 'resale ' is one such purpose. Rule 5 (1 ) of the Rules pro vides that the certificate of registration must be in Form B. Section 8(1) provides that every dealer who in the course of inter State trade or commerce, (a) sells to the Government any goods; or (b) sells to a registered dealer other than the Government goods of the description referred to. in sub sec tion (3) of this section, shall be liable to pay tax under this Act at the rate of three per cent of his turnover. Subsection (2) of section 8 states that the tax payable by any dealer on his turnover relating to the sales of goods in the course of inter State trade or commerce which does not fall within sub section (1) shall be (a) in the case of declared goods, at the rate applicable to the sale or purchase of such goods inside the appropri ate State, and (b) in the case of goods other than declared goods, at the rate of ten per cent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher. The goods referred to in clause (b) of sub section (1) are specified in sub section (3) of this section as goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him. Sub section (4) of section 8 says that the "provisions of sub section (1) shall not apply to any sale in the course of inter State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner (a) a declara tion duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority;" rule 12(1) of the Rules states inter alia that the declaration referred to in sub section (4) of section 8 shall be in Form C. Clause (b) of sub section (4) is not relevant to the present purpose. Section 9 (1) reads: "9. (1) Levy and collection of tax and penal ties. The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of sub section (2), in the State from which the movement of the goods commenced: Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within sub section (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form prescribed the purposes of clause (a) of sub section (4) of section 8 in connection with the purchase of such good 43 The dispute in this case turns on whether the proviso to section 9 (1 ) is applicable to the case. Reference may also be made to section 15 which provides the restrictions and conditions in regard to the tax on sale or purchase of declared goods within a State. The tax on sale or purchase of such goods inside the State. is not to exceed three per cent of the price thereof, and such tax is not to be levied at more than one stage. The only provision of the U.P. Act which is relevant is section 22 which is in these terms: "22. Rectification of mistakes. (1) The assessing, appellate, revising or additional revis ing authority may, at any time within three years from the date of any order passed by it, rectify any mistake apparent on the record; Provided that no such rectification, which has the effect of enhancing the assessment shall be made unless the authority concerned has given notice to the dealer of his intention to do so and has allowed him a reasonable opportunity of being heard. (2) Where such rectification has the effect of enhancing the assessment, the authority con cerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act and the rules framed thereunder shall apply as if such notice had been served in the first instance." The Sales Tax Officer had accepted the contention that the turnover amounting to Rs. 5,59,172/32p. was not taxable in Uttar Pradesh. In taking this view the Sales Tax Officer appears to have proceeded upon the observations in a Judg ment of the Allahabad High Court in the Company 's own as sessment case for the year 2965 66. However, in several subsequent decisions, the High Court held that m a case where a registered dealer effected a second sale in the course of interState trade and commerce, sales tax on the turnover was to be realised in the State where the dealer effecting the sale was registered. In one of these cases, M/s. Singhal & Co. vs State & Ors(1) it was pointed out that the earlier decision of the High Court had completely overlooked the proviso to section 9(2) of the Central Act. The Company being admittedly a registered dealer under the Central Act and liable to pay tax under that Act, the Sales Tax Officer thought that there was an apparent error in the order of assessment made on March 27, 1972 exempting the turnover amounting to Rs. 5,59,172/32 p. which in view of the proviso to section 9(1) of the Central Act was taxable in Uttar Pradesh. Accordingly, he proposed to rectify the error under section 22 of the U.P. Act, and on March 21, 1974 he issued a notice to the Company requiring it to appear before him on March 25, 1974. In response to the notice a representative (1) (1973) U.P. Tax Cases 466. 44 of the Company appeared. contended against the proposed rectification, and also filed a written objection. The Sales Tax Officer recorded an order on March 26, 197.4 overruling the objections and rectified the order of assess ment dated March 27, 1.971. A copy of the order passed on March 26, 1974 rectifying the mistake in the earlier assess ment order was served on the Company on March 31, 1974. The Company challenged the order dated March 26, 1974 by a writ petition in the Allahabad High Court which, was dismissed giving rise to this appeal. Mr. Nariman appearing for the appellants in these ap peals pressed the following grounds: (1) the proviso to section 9 (1 ) of the Cen tral Act has no application to goods declared to be of special importance in inter State sales or commerce under section 14 of the Central Act; (2) section 22 of the U.P. Act was not applica ble as there was no mistake apparent on the face of the record; and (3) in any event, the order made under section 22 of the. U.P. Act was barred by limitation. The argument. that the proviso to sub section (1) of section 9 does not apply to declared goods proceeds as follows: Sub section (1) (b) and sub section 2(a) of sec tion 8 of the Central Act deal with two different types of goods. Sub section (1)(b) speaks of goods of the descrip tion referred to in sub section (3), and subsection (2) relates to declared goods. Sub section (3) of section 8 only mentions the goods referred to in sub section (1)(b) which are goods of the class or classes specified in the certificate of registration of the dealer purchasing the goods as being intended for resale. Subsection (4) requires a declaration for the purposes of sub section (1) (b), and as sub section (1)(b) does not speak of declared goods, the declaration referred to in sub section (4) would not be necessary in the case of sale ' or purchase of declared goods. We fail to see any valid distinction between declared goods and other goods for the purpose of the applicability of sub section (1 ) of section 8. The .distinction was made by Mr. Nariman inferentially from the Central Sales Tax (Amendment) Act (8 of 1963) which omitted with effect from April 1, 1963, clause (a) from sub section (3) of section 8 as it stood prior to that date. Sub section (3), it may be recalled, specifies the goods referred to in section 8(1)(b). Prior to April 1, 1963, section 8(3)listing such goods, stated in clause (a) "(a) in the case of declared goods, are goods of the class or classes specified in the certificate of registration 45 of the registered dealer purchasing the goods as being intended for resale by him." Clause (b) of section 8(3) then began with the words: "in the case of goods other than declared goods, are . . ". By the same Amendment Act (8 of 1963) the opening words of clause (b), "in the case of goods other than declared goods", were consequentially omitted, also with effect from April 1, 1963. The omission of clause (a) is the basis of the argument that declared goods are altogether outside the purview of sub section (3) and, therefore, of sub section (1) of section 8, and, as the declaration referred to in sub section (4) of section 8 was required where sub section (1) of the section was applicable, it was not possible for the Company to obtain such a declaration. The contention seems to us untenable. Section 9(1) of the Central Act contains a general rule that tax payable by any dealer under this Act shall be levied and collected in the State from which the movement of the goods commenced. The proviso to section 9(1 ) qualifies this rule in the case of a subsequent sale which is not exempt from tax under section 6(2), and states that the tax on such subsequent sale would be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or could have obtained the form prescribed for the pur poses of section 8 (4) (a). No exemption under section 6(2) is claimed in this case. The declaration referred to in section 8 (4) (a) is necessary for the dealer to avail of the benefit of the rate of tax mentioned in section 8(1 ). Under section 7(3) the certificate of registration granted to a dealer has to specify the class or classes of goods for the purposes of section 8 (1 ). Rule 3 of the Central Sales Tax (Registration and Turnover) Rules, 1957 requires an application for registration under section 7 to be made in Form A, and Form A requires the purpose for which the goods or class of goods are purchased by the dealer to be specified; resale is one of the purposes mentioned in Form A. Thus, section 7(3) makes no distinction between declared goods and other goods; it is impossible to argue therefore that declared goods purchased by a dealer for resale need not be specified in his certificate of registration. Reading sub section (1) and sub section (3) of section 8 together, it is clear that all sales to a registered dealer other than the Government, whether of declared goods or other goods, are covered by subsection (1) of section 8. Clause (a) was omitted from sub section (3) of section 8 by the Amendment Act (8 of 1963) presumably because it was considered unnec essary to retain clause (a) to deal with declared goods when clause (b) apparently covered all goods, both declared and other than declared. The Act and the rules and the prescribed forms make No. distinction between declared goods and other goods except for the purpose of the rate of tax. There is no valid reason why the Company could not have obtained a declaration in Form C as required by the proviso to section 9(1). It follows therefore that the order of assessment dated March 27, 1971 was wrong as it held, contrary to the proviso to section 9(1), that the sales in question were not taxable in the State of Uttar Pradesh where the Company was registered as a dealer under this Act. 46 Another point sought to be made against the applicabili ty of the proviso to section 9(1) was tiffs. The proviso refers to the Form prescribed for the purpose of section 8(4)(a) which should contain a declaration duly filled and signed by the registered dealer to. whom the goods were sold. It was argued that as the declaration was required only where the sale was to a registered dealer, and as there was no finding in this case that the sales were to regis tered dealers, the proviso was not attracted. It appears, however, that the Company never claimed before the Sales Tax Officer that the sales were not to registered dealers; in the written objection filed before the Sales Tax Officer pursuant to the notice under section 22 of the U.P. Act, the only ground taken was that no declaration was required to be filed in the case of declared goods. The point was taken for the first time in the writ petitions. We do not think we should allow this question, which is one of fact, to be raised at this stage. The next question is whether this error in the original order of assessment can be called an apparent error within the meaning of section 22 of the U.P. Act. There is no dispute that an apparent error means a patent mistake, an error which one could point out without any elaborate argument. The order of assessment relating to the assess ment year in question, 1966 67, was made on March 27, 1971 by the Sales Tax Officer relying on a Judgment of the Alla habad High Court on a writ petition made by the Company questioning the validity of the assessment in respect of the assessment year 1965 66. In that Judgment the High Court held, referring to the provisions of section 9(1 ) of the Act, that "the Sales tax authorities in the State of U.P. had No. jurisdiction to make any assessment even if there was any inter State sale which could be liable to tax in the hands of the petitioner Company. The only State which could levy tax could be either Bihar or West Bengal. The impugned assessment order passed by the Sales Tax Officer, Moradabad, is therefore clearly without jurisdiction and is liable to be quashed". In this Judgment there is no reference to the proviso to section 9(1 ). It appears from the Judgment under appeal that the High Court in a number of latter decisions held that in view of the proviso, tax on a subsequent sale by a registered dealer in the course of inter State trade or commerce was to be levied and collected in the State where the dealer effecting the subsequent sale was registered. We are of the view that the order of as sessment dated March 27, 1971 was apparently erroneous in that it failed to take into consideration the proviso to. section 9(1). It is not that the order dated March 27, 1971 was in accordance with law when it was made but the subse quent decision of the High Court took a different view of the law. For the reasons we have given above, it was pat ently erroneous when it was made, but in view of the obser vations of the High Court in the case relating to the as sessment of an earlier year, the Sales Tax Officer felt that he had to dispose of the assessment case for the year 1966 67 in the manner he did. The Judgment of the High Court which the Sales Tax Officer followed in making the assess ment for the year in question did not concern itself with the proviso to section 9(1). 47 The next, and the last, question is whether the order dated March 22, 1974 rectifying the assessment order made on March 27, 1971 was barred by limitation. Under section 22( 1 ) of the U.P. Act any mistake apparent on the record may be rectified at any time within three years from the date of the order. It is not disputed that the other requirements of section 22 have been complied with. The Company 's representative appeared before the Sales Tax Officer pursuant to the notice served on them on March 25, 1974, and the objections to the proposed rectification were heard. There is no dispute that the order rectifying the mistake was recorded by the Sales Tax Officer on March 26, 1974, and this order was communicated to the appellant on March 31, 1974 According to Mr. Nariman, the order of rectification must be held to have been made on March 31, 1974 when it was communicated to the assessee which was beyond three years from the date of the order of assessment. Mr. Nariman relied on the well known rule of fairplay that the rights of a party cannot be affected by an order until he has notice of it. In Raja Harish Chandra Rai Singh vs The Deputy Land Acquisition Officer and another,(1) this Court considering the meaning of the words "the date of the award" occurring in section 18 of the Land Acquisition Act, 1894 observed. "The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector 's award" used in the proviso to section 18 in a literal or me chanical way. . where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the order must mean either actual or constructive communication of the said order to the party concerned. " Following this decision, this Court held in a subsequent ease under the , Madan Lal vs State of U.P. and others,(1) that the right of appeal given by section 17 of the Forest Act should be deemed to be the date when the party aggrieved by an order came to know of that order from which an appeal was sought to be preferred. But how have the Company 's rights been affected in this case ? (1) [1962] 1 S.C.R. 676. (2) [1975] 3 S.C.C. 779. 48 Section 9 of the U.P. Act gives a right of appeal to "any dealer objecting to any order made by the assessing authority, other than an order mentioned in section 10 A", within thirty days from the date of service of the copy of the order. In this case the Company was not affected by the order under section 22 being communicated to it after the expiry of three years from the date of the order because the limi tation for an appeal from that order did not begin to run before the communication of the order. The provisions of section 9 of the U.P. Act make that clear. The appeals therefore fail and are dismissed. Considering the circumstances, we direct the par ties to bear their own costs here and in the High Court. V.P.S. Appeals dismissed.

Section 5 of the , authorises the levy of duty upon all property which passes on the death of a person. Section 9 provides that property taken under a disposition made by the deceased purporting to operate as an immediate gift whether by way of transfer, delivery etc., which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death. Explanation 2 to section 2(15), which defines 'prope rty ', provides that the extinguishment at the expense of the deceased of a debt or other rights shall be deemed to have been a disposition made by the deceased in favour of the person for whose benefit the debt or right was extinguished and in relation to such a disposition the expression 'property ' shall include the benefit conferred by the extin guishment of a debt or right. Section 27 deems all disposi tions made by the deceased person in favour of his relations as gifts, for the purposes of the Act, unless such disposi tion was made for full consideration or the deceased was concerned in a fiduciary capacity with the property. A member of a joint Hindu family, within two years before his death entered into a partition of family proper ties bona fide, not as a colourable or sham transaction, whereby, he received towards his share an allotment substan tially lower in value than would be his legal entitlement, with a view to relieve himself of a part of his wealth and 7 3 who is a relative within the meaning of the Act. HELD: The relative, as the accountable person under the Act, is liable to pay estate duty, on the difference between the share that the deceased was legally entitled to and the share that the deceased actually took, that is, to the extent of the benefit received by the accountable per son. [14 G, 12 .A.] (1) Death duties are imposed on richer estates, the fiscal policy being, (a) collection of revenue, and (b) reduction of the quantum of inheritance on a progressive basis towards equalisation by diminishing glaring dispari ties of wealth. Therefore, the Act uses words of the widest import, legal fictions and deeming devices to. rope in all kinds of dealings with property for inadequate or no consid eration within the statutory proximity of death. If the words, however cannot apply to a particular species of property, courts. cannot supply words to fulfil the unex pressed wishes of the legislature. In a taxing statute one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. [13 D] (2) The definition of 'property ' in section 2(15) has to inform and must be read along with sections 9 and 27. It is not a substantive rule of law operative by itself. Similarly, the expression 'disposition ' in section 9 must be read with the definition in Explanation 2 to section 2(15) since that is the whole purpose of a 'deeming provision ' is the shape of a definition. [17 B C] 3 1003 SC1/76 10 (3) The definition of 'property ' in section 2(15) is not exhaustive but only inclusive and the supplementary opera tion of Explanation 2 takes in what is not conventionally regarded as 'disposition '. The expression "other right" in the Explanation is of the widest import and cannot be read ejusdem generis with 'debt '. The process of extinguishment of a right and the creation of a benefit thereby is statuto rily deemed to be a disposition in the nature of a transfer. Therefore, the definition of 'disposition ' covers the diminution in the share taken by one coparcener and augmentation of the share taken by the other and impresses the stamp of property on this process by the deeming provi sion. [18 F G; 19 C] (4) The case of Getti Chettiar [(1971) dealt with the expression 'transfer of property ' in section 2(xxiv) of the Gift Tax Act, 1958. This Court held that 'transaction ' 7 3 and it must be a 'transfer ' of property; and that since a partition is not a transfer in the ordinary sense of law, a mere partition with unequal allotments cannot be covered by section 2(xxiv). But the language of Explanation 2 to section 2(15) of the is different and wider and so the reasoning of this case cannot control its amplitude. [20 C] (5) This Court in Kancharla Kesava Rao [(1973) placed on 'disposition ' in section 24 of the the same interpretation as was put in the case of Getti Chettiar. But, whatever might be the interpretation of 'disposition ' in section 24, under section 27, a disposition in favour of a relative not for full consideration, shall be treated as a gift and under section 9 if the disposition made by the deceased is more than 2 years before death, the property covered thereby shall not pass on the death unless it shaH: not have been bona fide to say, even if the transaction were more than 2 years before the death, if it were entered into in bad faith, estate duty may Still attach to that property. But so far as dispositions made within two years of the death of the deceased are concerned there is no question of mala fides or, bona fides, and all such transactions would be liable to estate duty. [22 G; 23 F G] Valliammi Achi , approved. In re. Stration 's Disclaimer applied. Grimwade vs Federal Commissioner of Taxation ; referred to. [Principles for awarding costs in matters of general public importance where there is conflict in the High Courts on a question of Law, reiterated.]

ISDICTION: Writ Petition Nos. 60 1 602 of 1980. (Under Article 32 of the Constitution of India). M.K. Ramamurthy, J. Ramamurthy, Mrs. Chandan Ramamurthy and M.A. Krishnamurthy for the Petitioners. K. Parasaran, Attorney General D.N. Mishra, Ms. Meera Mathur, O.C. Mathur, C.V. Subba Rao. R.P. Srivastava. Hemant Sharma and P. Parmeswaran for the Respondents. The petitioners in these Writ Peti tions filed under Article 32 of the Constitution of India have prayed for a declaration that rule 3 of the Rules for Age of Retirement contained in Annexure I to the Central Bank of India (Officers ') Service Regulations, 1979 (herein after referred to as 'the Regulations ') framed under regula tion 19(1) of the Regulations is unconstitutional and void, and to direct the Central Bank of India (hereinafter re ferred to as 'the Bank ') to fix the age of retirement of all the officers of the Bank uniformly at 60 years. They have further prayed for the quashing of the Order dated 25.2. 1980 issued by the Chief Manager of the Bank at its Regional Office, New Delhi retiring Petitioner No. 1, B.S. Yadav from service as being illegal and unconstitutional and for a declaration that Petitioner No. 1, B .S. Yadav continues or shall be deemed to be i. the service of the Bank till he attains the age of 60 years with consequential benefits. The petitions are filed by B.S. Yadav, who was working as an officer of the Bank and the All India Central Bank Employ ees ' Federation. 169 The Bank came to be established under the Banking Compa nies (Acquisition and Transfer of Undertakings) Act, 1970 (hereinafter referred to as 'the Act ') under which the banking business of 14 banking companies was nationalised. At the commencement the process of nationalisation of these banks was not smooth sailing. On the Government of India taking a decision to nationalise the banking business of 14 banking companies the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance 8 of 1969 was promulgat ed by the President on July 19, 1969. The Ordinance provided for the acquisition and transfer of the undertakings of certain banking companies which were 14 in number in order to serve better the needs of development of the economy in conformity with the national policy and objectives and for matters connected therewith or incidental thereto. Under the Ordinance 14 'corresponding new banks ' were established. The Bank which is involved in these cases is the corresponding new bank of the Central Bank of India Ltd. which was one of the banking companies whose undertaking was taken over under the Ordinance. The corresponding new banks were authorised to carry on and transact the business of banking as defined in clause (b) of section 5 of the Banking Regulation Act, 1949 and also to engage in one or more forms of business specified in sub section (1) of section 6 of the Act. The Chairman of the banking company whose business was taken over holding office immediately before the commencement of the Ordinance was appointed as the custodian of the corre sponding new bank. The general superintendence, direction and management of the affairs and business of the corre sponding new bank was vested in the custodian who was to be the Chief Executive Officer of that bank. The above Ordi nance was replaced by the 22 of 1969. The constitutional validity of both the Ordinance and the 22 of 1969 was questioned before this Court in Rustom Cavasjee Cooper vs Union of India, ; By the decision rendered in the said case this Court declared the Ordinance and the 22 of 1969 as invalid and the action taken or deemed to have been taken in exercise of the powers under them as unauthorised. The above judgment of the Court was pronounced on February 10, 1970. The effect of the judgment was that the undertakings of the 14 banking companies, whose business had been acquired by the Central Government trader the authority of the above said Ordinance and the Act, reverted to the banking companies. With a view to resuming control over the business of those banking companies, the President again promulgated on February 14, 1970 the 170 Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1970. The provisions of the earlier Act which were struck down by this Court had been duly modified by promulgating the said Ordinance. The said Ordinance provided for the acquisition and transfer of the banking business of the said banking companies with effect from July 19, 1969, i.e., the date on which those undertakings were initially acquired by the Central Government. This Ordinance was replaced by the Act within a short period which was deemed to have come into force from July 19, 1969. By section 3 of the Act 14 corresponding new banks which were mentioned in the First Schedule to the Act came to be established. The paid up capital of the every new bank constituted trader section 3 of the Act was, until any provision was made in that behalf in any scheme made under section 9 of the Act, to be equal to the paid up capital of the existing bank in relation to which it was the corresponding new bank. The existing banks were the banking companies mentioned in the Second Schedule to the Act whose banking business had been earlier taken over on July 19, 1969. The entire capital of each corresponding new bank was vested in and allotted to the Central Government. Every corresponding new bank was treated as a body corporate with perpetual succession and a common seal with power, subject to the provisions of the Act, to acquire, hold and dispose of property, and to con tract and to sue and be sued in its own name. Under the Act the Bank became the corresponding new bank in respect of the Central Bank of India Ltd. Among other provisions, the Act provided for the appointment of officers and employees of the corresponding new bank. Section 12 of the Act reads thus: 12. Removal of Chairman from office (1) Every person holding office, immediately before the commencement of this Act, as Chairman of an existing bank shall, if he becomes Custodian of the corresponding new bank, be deemed, on such commencement, to have vacated office as such Chairman. (2) Save as otherwise provided in sub section (1), every officer or other em ployee of an existing bank shall become, on the commencement of this Act an officer or other employee, as the case may be, of the corresponding new bank and shall hold his office or service in that bank on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him if the undertaking of the existing bank had not been transferred to and vested in the correspond 171 ing new bank and continue to do so unless and until his employment in the corresponding new bank is terminated or until his remuneration, terms and conditions are duly altered by the corresponding new bank. (3) For the persons who immediately before the commencement of this Act were the trustees for any pension, provident, gratuity or other like fund constituted for the offi cers or other employees of an existing bank, there shall be substituted as trustees such persons as the Central Government may, by general or special order, specify. (4) Notwithstanding anything con tained in the , or in any other law for the time being in force, the transfer of the services of any officer or other employee from an existing bank to a corresponding new bank shall not entitle such officer or other employee to any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority. " Sub section (2) of section 12, in particular, provided for the transfer of the services of all officers and other employees of an existing bank from the existing bank to the corresponding new bank on the same terms and conditions and with the same rights to pension, gratuity etc. and it stated that any officer or employee of the existing bank whose services were so transferred was to continue to be in the employment of the corresponding new bank until his employ ment in the corresponding bank was terminated or until his remuneration, terms or conditions were duly altered by the corresponding new bank. Section 19 of the Act conferred power on the Board of Directors of a corresponding new bank to frame regulations after consultation with the Reserve Bank of India and with the previous sanction of the Central Government for all matters for which provision was expedient for the purpose of giving effect to the provisions of the Act. Clause (d) of section 19(2) of the Act specifically conferred powers on the Board of Directors to make regula tions with regard to the conditions or limitations subject to which the corresponding new bank might appoint advisers, officers or other employees and fix their remuneration and other terms and conditions of service. After the Bank came to be established there were two classes of officers and employees working in it, namely, officers and employees who had become officers and employees of the Bank under sub section (2) of section 12 of the Act 172 and the officers and employees of the Bank appointed after July 19, 1969. The age of retirement of the officers and employees of the various banks established in India has been the subject matter of several awards and settlements for several years. On the 20th March, 1953 the Sastry Award which was passed on the industrial disputes between certain banking companies and their workmen directed thus: "We direct that after the workman has reached the age of 55 years he may be retired after giving him two months ' notice in writing in case his efficiency is found by the employer to have been impaired; subject to this rule and also subject to any rule under an existing pension fund the workman should not be com pelled to retire before he is 58 years old. " The National Industrial Tribunal (Bank Disputes) Award known as Desai Award, on industrial disputes between certain banking companies and corporations and their workmen took the view as under: "A workman should not be compelled to retire before he is 58 years old. Banks however, will be at liberty, wherever they consider fit, to make rules providing for a higher age of retirement. " The First Bipartite Settlement on industrial disputes between certain banking companies and their workmen entered into on October 19, 1966 provided thus: "In supersession of paragraph 15.13 of the Desai Award, after a workman has reached the age of 57 years, he may be retired after giving him two months ' notice in writing in case his efficiency is found by the employer to have been impaired. " By a circular dated March 11, 1969, the erstwhile Central Bank of India Ltd. directed that as far as possible no member of the staff should be allowed extension in service beyond the retirement age of 60 years. The said circular which is marked as 'Annexure R2 '. and enclosed to the counter affidavit filed by Shri A.S. Jain, Assistant General Manager of the Bank at its Regional Office, New Delhi reads thus: 173 BID/STAFF/69/17 11th March, 1969 (To All Offices in India) Re: Age of Retirement. It has now been decided that as far as possible no member of the staff should be allowed extension in service beyond the re tirement age of sixty. Branches are therefore advised to refrain from recommending the case of any member of the staff for extension in service beyond] the retirement age. Staff members who retire at the age of sixty may, however, be allowed to avail of, from the date of retirement, ordinary leave, if any, due to them, and treated as retired from service from the date of expiry of such leave. P.C. Mevawalla General Manager" It is thus seen that on the eve of the nationalisation of the banking companies the members of the staff of the Central Bank of India Ltd. were entitled to remain in the service of the bank till 60 years and that until the terms and conditions of service were altered under subsection (2) of section 12 of the Act, every officer or employee belong ing to the Central Bank of India Ltd. whose services were transferred under section 12(2) of the Act to the Bank was entitled to the benefit of the said rule relating to the age of retirement. He could, therefore, continue in service till he attained the age of sixty years in the Bank subject to any alteration that might be made by the Bank. Upon nationalisation of the 14 banks it became necessary to nationalise the terms and conditions of service of the employees of the banks, particularly in view of the varying terms and conditions of service that existed in different banks prior to nationalisation which were continued by virtue of sub section (2) of section 12 of the Act. The Government of India, therefore, appointed on July 19, 1973 a committee consisting of five members with Shri V.R. Pillai as the Chairman (which was popularly known as the Pillai Committee) to enquire into and to make recommendations with regard to standardisation of scales of pay, allowances and perquisites of the transferred officers (other than award staff) in the 14 nationalised banks. One of the points referred to the Pillai Committee was the question relating to the age of superannuation of and the nature and quantum of terminal 174 benefits for the officer cadres. The Pillai Committee sub mitted its report in May, 1974. Paragraph 8.18 and 8.22 of the Pillai Committee Report relating to the age of superan nuation read thus; "8.18. According to existing practices, the age of superannuation (or retirement) in eleven of the nationalised banks is 60 years, with a provision that after an officer has attained the age of 57 years he can be retired after giving him two months ' notice in writ ing, if his efficiency is found to have been impaired. In another bank, though the age of superannuation is 60, the proviso about earli er retirement applies only when the officer has attained the age of 58 years. In two other banks the age of superannuation itself is 58 years. In the circumstances, we recommend that the age of superannuation of officers in the banks should be 60 years, with a provision for review at the age of 58 years to adjudge the fitness of the officer for continuance in service. In order to remove uncertainties, the above review may be initiated on the officer attaining the age of 57 years and completed well before he reaches 58 years. " Thereafter in September, 1976 the Government of India appointed a study group, called the Study Group of Bankers, to make suggestions for the implementation of Pillai Commit tee Report. After examining the Report of the Pillai Commit tee and taking into consideration all other aspects the Study Group of Bankers made its recommendations on all questions including the age of superannuation of officers who had become the employees of the banks under section 12(2) of the Act. On receipt of the recommendations of the Study Group of Bankers the Government of India issued guide lines to the nationalised banks to frame appropriate regula tions with regard to the terms and conditions of the service of the officers working in them. Accordingly the Bank pre pared its regulations after consultation with the Reserve Bank of India and submitted them for the approval of the Government of India. The Government of India gave its ap proval to the regulations with some modifications. On re ceipt of the approval of the Central Government on 23rd May, 1979 the Bank brought into force the Regulations with effect from 1st July, 1979. Regulation 19 of the Regulations pro vided as under: 175 "19. Age of Retirement (1) The age of retirement of an officer em ployee shall be as determined by the Board in accordance with the Guidelines issued by the Government from time to time; Provided that the Bank may, at its discretion on review by the Special Committee as provided hereinafter in subregulation (2) retire an officer employee on or at any time after the completion of 55 years of age or on or at any time after the completion of 30 years of total service as an officer employee or otherwise, whichever is earlier; . . " In accordance with the guidelines issued by the Central Government, the Board determined the Rules for Age of Re tirement as follows: "The age of retirement of an officer in the Bank on or after the appointed date shall be determined as under: 1. An officer employee of the Bank recruited/promoted prior to 19th July, 1969 shall retire on completion of the 60 years of age. An officer employee of the Bank recruited prior to 19th July, 1969 but promoted as an officer on or after 19th July. 1969 shall retire on completion of 60 years of age. An officer employee of the Bank recruited whether as an Award Staff or as an officer employee on or after 19th July, 1969 shall retire on completion of 58 years of age. " Rules 1 and 2 of the Rules for Age of Retirement relate to an officer employee who had been recruited or promoted as an officer prior to July 19, 1969, i.e., prior to the date on which the banking business of the former banking compa nies was nationalised and to an employee recruited prior to nationalisation but promoted as an officer thereafter. Rule 3 of the Rules for Age of Retirement relates to an officer employee of the Bank recruited whether as an award staff or an officer employee on or after July 19, 1969. The officer employees who had been recruited or promoted prior to July 19, 1969 or recruited prior to July 19, 1969 but promoted as officers, after July 19, 1969 were allowed to retire trader the Rules for Age of Retirement on completion of 60 years of age. All other officer employees recruited whether as an award staff or an officer employee on or after July 19, 1969 were 176 required to retire on completion of 58 years of age. The difference between the age of retirement of officer employ ees failing under rules 1 and 2 of the Rules for Age of Retirement and the age of retirement of the officer employ ees falling under rule 3 thereof arose on account of the decision taken by the Government of India and the Bank not to alter to their prejudice the right which the employees of the Bank who had been recruited prior to July 19, 1969 had acquired under the circular issued by the Central Bank of India Ltd. on March 11, 1969 before nationalisation of the banks. Section 12(2) of the Act, as already stated, provided that any employee of the Bank whose services were trans ferred to the corresponding new bank could hold his office in that bank on the same terms and conditions and with the same rights to pension, gratuity, etc. until they were duly altered by the corresponding new bank. Since there was no alteration of the condition relating to the age of superan nuation, the said officers continued to enjoy the benefit of the condition of service relating to retirement which was in existence prior to nationalisation of banks. But as regards employees who were recruited after July 19, 1969 the Bank fixed the age of superannuation at 58 years having regard to the prevailing age of superannuation of the members belong ing to the various services in public sector corporations, Central Government and many of the State Governments. The 1st petitioner was appointed on 13th August 1972 as an officer in the post of Chief Cashier in the Bank. The letter of appointment issued in his case contained a clause which read as follows: "You will be governed by the terms and condi tions of service as applicable to the other officer staff of the Bank. " On the Regulations coming into force in 1979 the 1st Petitioner was served with a notice dated 25.2. 1980 issued by the Chief Manager of the Bank stating that he would be treated as finally retired from the Bank 's service after the close of business on February 29, 1980 on completion of 58 years of age. The above writ petitions were filed in April, 1980 questioning the order of retirement issued in the case of the 1st petitioner and praying inter alia for a declara tion, as mentioned above, that all officers including the 1st petitioner should be permitted to continue in service till the completion of 60 years of age as in the case of officers failing trader rules 1 and 2 of the Rules for Age of Retirement. The principal grounds urged in support of the writ petitions were that there could not be two different ages of retirement in the case of officers of the Bank and that since rule 3 of the Rules for 177 Age of Retirement required the officers, who were recruited subsequent to July 19, 1969, to retire on completion of 58 years of age while others falling under rules I and 2 of the said Rules could continue till 60 years of age, rule 3 was liable to be struck down as being violative of Articles 14 and 16 of the Constitution. The petitions were opposed by the Bank and the Union of India. It was pleaded by them that since the employees whose services were transferred to the Bank under subsection (2) of section 12 of the Act were entitled to continue in service till 60 years of age by virtue of the conditions of service prevailing in the Cen tral Bank of India Ltd. prior to nationalisation of banks, the Bank and the Government found that it would be unjust and unfair to reduce the age of superannuation from 60 years in the case of such employees and, therefore, did not alter the said condition of service. In the absence of any altera tion they were entitled to continue to be in service till they attained 60 years of age even after nationalisation by virtue of sub section (2) of section 12 of the Act. The officers and employees other than the award staff recruited after the nationalisation of the basks were required to retire on completion of 58 years of age which was the age of superannuation generally prevailing in the services of all public sector corporations, Central Government and many of the State Governments. It was urged that since the employees recruited prior to July 19, 1969 belonged to a different class altogether, it could not be said that there had been violation of Articles 14 and 16 of the Constitution, and the difference in the ages of retirement of the two classes of officers was due to historica reasons. It is no doubt true that the order of appointment in the case of the 1st petitioner stated that he would be governed by the terms and conditions which were applicable to other officers of the Bank. That condition, however, did not prevent the Bank from making a regulation which was applica ble exclusively to the officers recruited after July 19, 1969. In the case of officers falling under rules 1 and 2 of the Rules for Age of Retirement no extra benefit was con ferred on them. They were only permitted to carry the bene fit of the Rules for Age of Retirement which was prevailing in the former banking company which was taken over by the Government on nationalisation. We are of the view that there was good reason to make a distinction between the employees who had entered service prior to nationalisation and those who joined thereafter. At the time of nationalisation the corresponding new banks did not have their own employees to run the vast business taken over under the Act. There was, therefore, necessity to secure the services of the employees of the former banking companies without causing much dissat isfaction to them. There was also need for standardising the con 178 ditions of service of all such employees belonging to the 14 banks. The Government of India took the advice of the Pillai Committee and the Study Group of Bankers and after due deliberation evolved a uniform pattern of conditions for the transferred employees keeping in view the conditions of service of the employees prevailing in the majority of the banking companies which were nationalised. Insofar as the employees recruited after nationalisation were concerned the Government applied the rules generally applicable to all its employees in other spheres of Government service. We have given detailed reasons in our judgment in the Life Insurance Corporation of India & Anr. vs S.S. Srivastava & Others, (Civil Appeal Nos. 1076 1077 of 1987) decided on 5.5.1987 justifying the existence of a rule fixing different ages of retirement to different classes of employees of the Life Insurance Corporation of India in the circumstances existing there. The circumstances prevailing in this case are almost the same. Those reasons are equally applicable to the present case too. In Govindarajulu vs The Management of the Union Bank of India & Others, (Writ Peti tion No. 5486 of 1980) decided on 21.11.1986 the High Court of Madras has rejected the contentions similar to those which are raised before us. In that case a regulation framed by the Union Bank of India which was similar to the one in this case was upheld. That decision has been approved by us in the Life Insurance Corporation of India & Anr. vs S.S. Srivastava & Others, (supra). In Dr. Nikhil Bhushan Chandra vs Union of India & Ors., (1983 LAB I.C. NOC 109 Calcutta) similar regulations framed by the United Commer cial Bank which was also nationalised under the Act came up for consideration before the High Court of Calcutta. The High Court rejected the theory of discrimination put forward on the basis that fixing 60 years as age of retirement for those who were recruited prior to July 19, 1969 and 58 years of age who joined after that date lacked an intelligible differentia. The Calcutta High Court pointed out that the terms and conditions of the service of the employees of the banks which were taken over under the Act had been protected by the Act and it was not possible to hold that there had been any hostile discrimination against the petitioner in that case. We are of the view that the decisions of the Madras High Court and the Calcutta High Court, referred to above, lay down the correct principle. It is true that if the nationalised banks wanted to reduce the age of retire ment of the transferred employees they could have done so But they have tried to standardise their conditions of service and to bring about some uniformity without giving room for much discontent or dissatisfaction. The question involved in this matter is not one of mere 179 competence. It involves justice and fairness too. Having regard to all aspects of the matter, the nationalised banks have tried to be fair and just insofar as the question of the age of retirement is concerned. We cannot say in the circumstances that the Bank 's attitude is unreasonable, particularly when the age of retirement of the new entrants is quite consistent with the conditions prevailing in almost all the sectors of public employment. We are of the view that the classification of the em ployees into two categories i.e., those falling under rules 1 and 2 of the Rules for Age of Retirement and those falling under rule 3 thereof satisfies the tests of a valid classi fication laid down under Articles 14 and 16 of the Constitu tion. We do not, therefore, find any ground to declare rule 3 of the Rules for Age of Retirement, which is impugned in this case, as unconstitutional. The Writ Petitions are, therefore, dismissed. There shall, however, be no order as to costs. P.S.S. Petitions dismissed.

The prosecution alleged that on the evening of May 30, 1974 the appellant 's daughter caught hold of the deceased, and the appellant poured kerosene oil on her and set her on fire. On hearing deceased 's screams the neighbours rushed to the house and extinguished the flames. Thereafter, she was taken to the hospital where on the basis of questions put by the doctor (P.W. 2), Head Constable (P.W. 7) recorded her statement. She expired on June 1, 1974. It was further alleged that the husband and his parents were unhappy about the quantum of dowry brought by the deceased and she was, therefore being subjected to severe harassment and maltreat ment. In a letter written by the deceased to her father she had set out the details of the iII treatment meted to her and expressed grave apprehension that her life was in immi nent danger. The trial court convicted the appellant and her daughter of the offence under section 302 I.P.C. acting on the dying declaration made by the deceased, the letter written by her to her father and his evidence as to the demands for dowry and the torture inflicted on his daughter. The husband was given benefit of doubt and acquitted. The High Court confirmed the conviction of the appellant but acquitted the daughter giving her benefit of doubt. Dismissing the appeal, the Court, HELD: 1.1. The conviction of the appellant by the High Court was fully justified. The dying declaration made by the deceased wherein 1222 she has given a clear and vivid account of the pouring of kerosene oil over her body and being set on fire by the appellant, has the ring of truth. The testimony of the doctor (P.W. 2) and the Head Constable (P.W. 7) clearly establishes that she was in a fit condition to make the statement. There was, therefore, no reason whatever not to act upon it. [1224D; G] 1.2. In addition, there was also clear circumstantial evidence furnished by the letter written by the deceased to her father and the testimony of the father regarding the demands for dowry and the harassment and torture inflicted on the deceased as part of the endeavour to extract more dowry. [1224F G] 2. Whenever a case of gruesome murder of a young wife by the barbaric process of pouring kerosene oil over the body and setting her on fire as the culmination of a long process of physical and mental harassment for extraction of more dowry comes before the court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the court to deal with the case in the most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such anti social crimes. [1222H; 1223A]

: Criminal Appeal Nos. 485 488 of 1979 etc. From the Judgment and Order dated 6.12. 1977 of the Andhra Pradesh High Court in Cr. Revision Cases Nos. 294, 295,296 and 293 of 1977 Kapil Sibal, Atul Wig, Raj Birbal, A.T.M. Sampath and G.M. Rao for the Appellant. 89 A.K. Goel, K. Ram Kumar, B Parthasarthi for the Respondents. The Judgment of the Court was delivered by OZA, J. These appeals have been filed after grant of leave against the acquittal of the respondent from offences under Sections 467 read with Section 109 and 471 of the Indian Penal Code. The prosecution case at the trial was that V. Suryakan tam is a resident of official colony VSP, and has a Bank account in the Bank of India since 1965. Her Account No. is 2006. She has also a cheque book to operate the Bank trans actions and she was also entitled to withdrawal facility for withdrawing money from her accounts. The respondent accused was working as an Accounts Clerk in the Bank of India in the very branch where V. Suryakantam P.W.i had her account. This V. Suryakantam, P.W. 1 was 'acquainted with the respondent accused and he used to assist her in the Bank transactions. It is alleged that whenever she wanted to withdraw money on a cheque her daughter V.S. Kanthi used to fill up the cheque and she used to sign on the cheque. On 23rd NOvember, 1970 the respondent accused misrepresented to P.W. 1 that her account book is required in the Bank for the purpose of posting up to date entries and on this represen tation obtained her pass book which he never returned. P.W. 1 demanded the pass book several times. He always represent ed that it was in the Bank and yet not completed. On 9.12. 1970 the respondent got filled up by some person withdrawal form No. 2055 on the account of P.W. 1 on the Bank of India for Rs.6,000 and represented this with drawal form in the Bank. He received the money i.e. Rs.6,000 and mis appropriated the same. On 11.3. 1971 P.W. 1 went to the Manager of the Bank. The respondent was absent and she told him about the fact of having given her passbook to the respondent long back and that he was not returning the pass book and dodging her. She also requested him to verify her accounts. The Manager asked her to come on the next day. On 12th March, 1971 when she went to the bank to her surprise she learnt that some withdrawal of money have been done and very little amount was left over. She immediately gave a complaint that this withdrawal of Rs.6,000 was not by her as well as two other withdrawals and on the same day the Manager and staff officer went to the house of 90 the accused and questioned him about those transactions. The respondent accused admitted his guilt before the Manager and requested the Manager to excuse him and gave a confessional statement in writing. During investigation hand writing specimen of P.W. 1 and admitted handwriting of the accused respondent were compared with the handwriting on the withdrawal forms by the expert. The opinion of the expert was that signature on the with drawal form was not by P.W. 1 and that the signatures on the reverse of the form which is taken in the Bank as an ac knowledgement for the receipt of money was that of the respondent accused. It was therefore opined that the respon dentaccused got forged the signatures of P.W. 1 on the withdrawal form, presented it as genuine at the Bank and withdrew Rs.6,000 and therefore he was prosecuted for of fences under Sections 467 read with Sec. 109, 47 1,408 and 420 of Indian Penal Code. As there were three items of such withdrawals three prosecutions were launched consequently three appeals and ultimately three appeals are filed here by the Bank of India and there is also an appeal filed by the State against the judgment of acquittal passed by Hon 'ble the High Court. On trial the respondent accused was convicted for an offence under Sec. 420 and sentenced to undergo imprisonment for 9 months and to pay a fine of Rs. 100. He was also convicted for an offence under Sec. 467 read with Sec. 109 and sentenced to imprisonment for 9 months and a fine of Rs. 100. He was also convicted under Sec. 47 1 IPC and sentenced to 9 months imprisonment. The trial court however acquitted him from the effence under Sec. 408. The appellate court acquitted the respondent accused from charge under Sec. 420 IPC but confirmed his conviction under Sec. 467 read with Sec. 109 and also under Section 471, the sentence under the two was maintained. The State did not prefer an appeal against the acquittal of the respondent under Sec. 408 IPC by the trial Court and his acquittal under Sec. 420 IPC by the appellate Court. The respondent accused aggrieved against conviction preferred a revision petition before Hon 'ble the High Court of Andhra Pradesh and Hon 'ble the High Court by its judgment dated 21st February 1977 came to the conclusion that the offence under sec. 467 read with Sec. 109 IPC is not made out. The learned Judge also came to the conclusion that consequently his conviction under Sec. 471 also could not be maintained. Consequently the respondent was acquitted from the charges levelled against him and it 91 is against this judgment of Hon 'ble the High Court that the present appeals have been filed after obtaining leave from this Court. The learned trial Court and the appellate Court came to the conclusion that the signatures on the withdrawal form were not that of P.W. 1 but it also came to the conclusion that they were also not forged by the respondent accused but both the Courts came to a concurrent finding of fact that these withdrawal forms on which there were forged signatures of P.W. 1 were presented in the Bank by the respondentac cused and he obtained money on the basis of these withdrawal forms and he put his signatures on the reverse of these withdrawal forms in acknowledgement of the receipt of money. These signatures on the back side of the withdrawal form acknowledging the receipt of money were also admitted by the respondent accused at the trial. Both the Courts below also came to a concurrent finding of Act that the money so obtained from the Bank from the account of P.W. 1 on the basis of these withdrawal forms was pocketed by the respondentaccused and was not returned or paid to P.W. 1 although that was the stand taken by the respondent accused and he also attempted to prove it by producing a defence witness for that purpose. On the basis of these findings both the Courts ultimately convicted the respondent accused for an offence under Sec. 467 read with Sec. 109 and Sec. 471 IPC. The learned Judge of the High Court while acquitting the respondent accused came to the conclusion that it was the duty of the prosecution to establish as to who had forged the signatures of P.W. 1 on the withdrawal form as admitted ly it has not been established that they were forged by the respondent accused and on this basis the learned Judge observed that as there is no evidence as to who forged the signatures P.W. 1 on the withdrawal form it could not be held that the accused respondent knew that the document was forged nor it could be said that he got the documents forged and on the basis of this conclusion the learned Judge came to the conclusion that none of the two offences i.e. Sec. 467 read with Sec. 109 or offence under Section 471 is established. The learned counsel appearing for the appellant (the Bank) contended that so far as receipt of the money on the basis of the withdrawal form from the Bank is concerned it is admitted by the respondent accused as he admits his signatures on the back of the withdrawal form which are signatures acknowledging the receipt of the money. 92 Both the Courts (trial Court and the appellate Court) negatived the defence that the money so collected from the bank by the respondent was given over to P.W. 1 and High Court also maintained that finding as it has not been nega tived. He therefore contended that the following facts are established and accepted to be established even by the High Court: (i) that the withdrawal form did not bear the signatures of P.W. 1; (ii) that on the basis of the withdrawal form the accused 'respondent withdrew money from the bank from the account of P.W. 1 and that (iii) he signed the acknowledgement of receipt of money and did not return the money to P.W. 1 but pocketed himself. These facts therefore clearly establish that the re spondent accused used the forged document and on the basis of that document obtained money to which he had no claim and thereby caused wrongful gain to himself and wrongful loss to P.W. 1. It is also clear from the evidence that P.W.1 used to take the assistance of the accusedrespondent whenever she wanted to have any transaction in the Bank and therefore it is expected of him to have known the signatures of P.W. 1 Apart from it there is nothing to establish as to from where the respondent accused got these withdrawal forms. Under these circumstances it could not be doubted that he used these withdrawal forms knowing them to be forged or at least believed them to be forged and therefore it could not be said that he could not be convicted for an offence under Sec. 471. As regards the offence under Section 467 read with Sec. 109, the learned High Court acquitted the respondent because it came to the conclusion that there is no evidence to establish as to who forged the signatures of P.W. 1 on the withdrawal form. It is no doubt true that so far as the evidence about the forgery of the signatures of P.W. 1 on the withdrawal form is concerned there is no evidence except the fact that the signatures are forged and the further fact that this withdrawal form was in the possession of respond ent accused who presented it in the Bank and obtained money therefrom and pocketed the same. From these facts an infer ence could safely be drawn that it was the respondent ac cused who got signatures of P.W. 1 forged on this document 93 as it was he who used it to obtain money from the Bank from the account of P.W. 1 and pocketed the same It is no doubt true that there is no evidence as to who forged the signa tures of the withdrawal form but the circumstances indicated above will lead to the only inference that it was the ac cused respondent who got the signatures of P.W. 1 forged on the withdrawal form. In this view of the matter therefore the acquittal of the respondent for an offence under Section 467 read with Sec. 109 also could not be justified. It is unfortunate that the State did not prefer an appeal against the acquittal of the respondent under Section 408 and also under Section 420, even before this Court it is first the Bank which came by way of special leave but later on the State has chosen to prefer an appeal. In the light of the discussions above, in our opinion, the appeal deserves to be allowed. It is therefore allowed and the acquittal of the respondent for offence under Sec tion 467 read with Section 109 and Section 471 of the Indian Penal Code is set aside. Instead he is convicted for these two offences. As there were three items, three separate prosecutions were launched and ultimately three appeals were before the High Court and in each one of them identical questions were involved. Consequently respondent is convict ed for the above mentioned two offences in each one of the three cases and sentenced to 9 months rigorous imprisonment for each of the offences. But it is further directed that all the sentences shall run concurrently. P.S.S. Appeal allowed.

The respondent Accused, who was working as an Accounts Clerk in the appellant Bank in the very branch where P.W. 1 had her account, was alleged to have presented forged cheques on her account and misappropriated the sum with drawn. He has prosecuted for offences under s.467 read with sections 109, 471, 408 and 420 of Indian Penal Code. The trial court and the appellate court found that the signatures on the withdrawal forms were not that of P.W. 1 and that they were also not forged by the accused. But they recorded a concurrent finding of fact that the withdrawal forms bearing forged signatures of P.W. 1 were presented in the Bank by the respondent accused and he obtained money and put his signatures on the reverse in acknowledgement of receipt of money, that the money so obtained was pocketed by the respondent accused and was not returned or paid to P.W. 1. He was acquitted by the trial court of the charge under s.408 and by the appellate court under s.420, and ultimately convicted of the offence under s.467 read with section 109 and s.471. The State did not prefer appeal against the acquittal under ss.408 and 420. On appeal by the accused respondent, the High Court took the view that there was no evidence as to who forged the signatures of P.W. 1 on the withdrawal form and that it could not be said that the accused respondent knew that the document was forged or that he got the document forged. It came to the conclusion that the offence under s.467 read with section 109 was not made out and that consequently his conviction under s.471 also could not be maintained. In these appeals it was contended on behalf of the appellant Bank that the respondent accused was liable be cause he has admitted that the signatures on the back of the withdrawal form were his signatures 88 acknowledging the receipt of money which he pocketed him self. Allowing the appeals, the Court, HELD: 1.1 The acquittal of the respondent accused by the High Court for an offence under s.467 read with section 109 of the Indian Penal Code was not justified. 1.2 Though there was no evidence about the forgery of the signatures of P.W. on the withdrawal forms still the fact remained that the signatures were forged, that the withdrawal form was in the possession of respondent accused and it was he who represented it in the Bank and obtained money. P.W. 1 used to take the assistance of the responden taccused whenever she wanted to have any transaction in the Bank and therefore it was expected of him to have known the signatures of P.W. 1. Apart from it there was nothing to establish as to from where the respondent accused got these withdrawal forms. These facts lead to the only inference that it was the accused respondent who got the signatures of P.W. 1 forged on the withdrawal form. It could not be doubted that the accused respondent used the withdrawal forms knowing them to be forged or at least believed them to be forged on the basis of which he obtained money to which he had no claim and thereby caused wrongful gain to himself and wrongful loss to P.W. 1. It could not, therefore, be said that the respondent accused could not be convicted for an offence under s.47 1. 3. As three separate prosecutions were launched the respondent is convicted of the offences under s.467 read with section 109 and s.47 1 of the Indian Penal Code in each one of the three cases and sentenced to 9 months rigorous im prisonment for each of the offences. The sentences to run concurrently.

Appeal No. 164 of 1964. Appeal from the judgment and decree dated December 15, 1959 of the Madras High Court in O.S. Appeal No. 22 of 1955. P. Ram Reddy and A. V. Velayudhan Nair, for the appellant. K. R. Chaudhuri, and K. Rajendra Choudhury, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought against the judgment of the High Court of Madras dated December 15, 1959 in O.S. Appeal No. 22 of 1955. The respondent was a trader at Madras in hides and skins. The appellant was a firm, Gordon Woodroffe and Company (Madras), Limited, doing business among other things as exporters of hides and skins. For the period of 8 months commencing from January, 1949, there were as many as 101 contracts entered into between the appellant and the respondent. The case of the respondent was that he entered into an agreement with the appellant to act as agents for shipping the goods (hides and skins) to United Kingdom and for finding purchasers there. It is alleged that the appellant used to make payment to the respondent in respect of the goods sent to it for shipment in the nature of advances and he 3 used to set off these advances when payment was made to the respondent after the goods were shipped. The respondent will hereinafter be referred to as the plaintiff and the appellant as the defendants. The plaintiff tentatively claimed a sum of Rs. 56,564/and odd as due to him as balance of the price of the goods and a further sum of Rs. 40,275/ as representing the loss sustained by him by reason of the defendants ' conduct in not shipping his goods under the "Shaik mark". The plaintiff accordingly prayed that an account should be taken of the dealings between the parties for the period in question. The defendants contested the suit on the ground that it was not an agent of the plaintiff but it purchased hides from the plaintiff for export and for resale in the United Kingdom. The case of the defendants was that there was an outright purchase of the goods from the plaintiff for the purpose of resale in the United Kingdom. The defendants also contended that a sum of Rs. 4,351 / and odd was due to it from the plaintiff and it prayed for a decree against the plaintiff for that amount by way of counter claim. The trial Judge held, by his judgment dated May 6, 1954 that the defendants were only purchasers of the goods from the plaintiff and the idea of agency was quite inconsistent with the nature of the transactions between the parties. The trial Judge came to the conclusion that the plaintiff was bound by the statements of account rendered by the defendants from time to time. After giving an opportunity to the parties to produce further evidence, the trial Judge held that since there was no fraud the accounts could not be reopened and the claim of the plaintiff with regard to Rs. 157/ in respect of the marine insurance alone was sustainable. The trial Judge accordingly dismissed the suit and decreed that counter claim of the defendants after deducting the said sum of Rs. 157/ . The plaintiff preferred an appeal to the High Court of Madras under the Letters Patent. By its judgment dated December 15, 1959 the High Court reversed the decision of the trial Judge and held that the defendants acted as del credere agents of the plaintiff for effecting the sale of the plaintiff 's goods in the United Kingdom. On this basis the High Court decreed the plaintiff 's suit and directed the taking of accounts, as prayed for, from the defendants, though in respect of some of the items the claim of the plaintiff was negatived. The High Court also held that the plaintiff was liable to pay to the defendants the amount claimed by them by way of counter claim. The first question presented for determination in this case is whether the defendants were acting as del credere agents of the plaintiff or whether the defendants were outright purchasers of the goods supplied to them by the plaintiff. In the approach to this question it is necessary to notice the distinction between a contract of sale and a contract of agency. The essence of sale is the transfer of the title to the goods for price paid or to be paid. The transferee in such case becomes liable to the transferor of the goods 4 as a debtor for the price to be paid and not as agent for the proceeds of the sale. On the other hand, the essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the owner of the goods and who is therefore liable to account for the proceeds. The true legal relationship between the parties in the present case has, therefore, to be inferred from the nature of the contract, its terms and conditions and the nature of respective obligations undertaken by the parties. It is necessary, at this stage, to set out briefly the course of the dealings between the parties which has been summarised by the High Court as follows: "The plaintiff used to purchase tanned hides of all sorts in Periamet (Madras), and in his godown assort them according to quality, pack them into bales and mark them with his mark, viz., Shaik or section M. A. Mark. Then the bales would be delivered into the defendants ' godown where the bales would be opened and re assorted so as to conform to London specification and standard. In the process of putting the goods into that shape, there used to be necessity for the defendants to cut and trim the pieces and sometimes call on the plaintiff for replacement of the pieces which fell below the standard. Thereafter, the defendants used to re pack them into bales each weighing 600 pounds and then ship the goods themselves as shippers and obtain the necessary shipping documents on the basis of c.i.f. contracts. The goods would be shipped to the defendants ' London Office where they were sold to London purchasers. All the expenses incurred in connection with the goods prior to shipment, such as carriage, trimming and assortment in the defendants ' godown were all to be borne by the plaintiffs. So also expense in connection with the shipment, such as freight, insurance, short weight, etc., were all to be home by the plaintiff. After the goods were shipped and as soon as the shipping documents were got ready. the price of the goods was calculated at the price fixed in the contract notes and after deducting the expenses and the advances with interest thereon, the balance, if any, was paid to the plaintiff either by cheque or by credit being given in his accounts. For every shipment a contract note was being sent by the defendants to the plaintiff. So also, a statement of account with a covering letter as well as a cheque for the balance found due to the plaintiff were being sent to the plaintiff from time to time. In all, there were 101 contract forms and several statements of accounts sent to the plaintiff 5 in respect of the shippers. To none of those contracts or statements of account did the plaintiff raise any objection at any time. " The question whether the defendants took delivery of the plaintiff 's goods as agents for sale or whether they purchased the goods outright must largely depend upon the terms of the contract of which a sample is exhibit P 1. All the 101 contracts were prepared in the same printed form. Exhibit P 1 is the contract dated January 21, 1949. It is in the form of a letter sent by the defendants to the plaintiff. It opens with the sentence "We confirm buying from you for resale the following subject to U.K. Import Licence". Then follows a description of the goods giving the number of bales, the average weight and range, the assortment and the price per lb. in pennies. The price quoted is said to be c.i.f. less 21 per cent. The goods were already shipped by the s.s. 'City of Florence '. The seller is said to be liable to pay brokerage at the rate of one pie per lb. Then follow the terms of the contract which are to the following effect: " Landed weight to be accepted, payment on presentation of documents in order. It is understood that the above goods are for re sale in United Kingdom. You are responsible irrespective of any inspection by us in Madras for selection and quality of the goods at destination where inspection and acceptance thereof will be made by our agents or the ultimate buyers. In the event of any dispute or claim in respect of goods covered by this contract, failing amicable settlement with buyers, such claim is to be submitted to arbitration according to the custom of the trade in the United Kingdom and the result of such settlement or arbitration is binding on you. We have a charge or lien on all goods covered by this contract for all moneys advanced by us including expenses incurred and interest thereon. Insurance through Gordon Woodroffe Company, Madras, Limited. Time is an essence of the contract. " In the first place, it is important to notice that the contract in the opening portion specifically makes a mention of the fact that the defendants were buying the goods for resale, and in the paragraph containing the terms of the contract it is reiterated that the goods were intended for resale in the United Kingdom. On the face of it, therefore, the contract is clearly not one of agency for sale but it reads as an agreement of sale. If the defendants were intended to be constituted as the agents for sale the terms of the contract would have been entirely different. Another important feature in this case is that there is a definite price fixed in the contract for the plaintiff 's goods. According to the plaintiff the rates fixed in the contract were the ones at which the goods were sold to London 6 purchaser and not a different rate and the defendants were agents who were obtaining for him only the price at which the goods were sold at London. It is true that the defendants admit that before fixing the price as between themselves and the plaintiff they used to ascertain the London price by cable. It is also true that the plaintiff was debited in the statement of account with the expenses of the cable. Even so, if the defendants were simply acting as agents for the sale there was no need at all to fix the price in the contract as between them and the plaintiff. It was contended for the plaintiff that according to the contracts the prices fixed are c.i.f. less 2 1/2 per cent and discount of 21 per cent was the commission for the defendants as agents. There is no use of the word " commission" in the contracts and we see no reason to hold that 2 1/2 per cent should be taken as commission and not as a margin of profit. The important point is that if the contract was one of agency there was no need to mention the price at all as between the plaintiff and the defendants. It may be that in most cases the prices which the defendants obtained from the London purchasers were the same as the prices stipulated in the contracts with the plaintiff but the fact remains that they obtained 21 per cent discount on the sale price, that is to say, they purchased the goods from the plaintiff 2 1/2% per cent less and sold them to their London purchasers at the full price, so that 2 1/2 per cent was their margin of profit. It is possible that sometimes they sold the goods to the London purchasers at a higher price in which case they would be entitled to the difference in prices as a profit in addition to the 2 1/2 per cent which they got from the plaintiff. In all there are 101 contract forms and in accordance with these contract forms statements of account were furnished by the defendants to the plaintiff. Exhibit P 1A is the statement of account dated January 25, 1949 based upon the contract note exhibit P 1. It is true that the plaintiff did not sign any one of the contract forms, but all of them were received by the plaintiff without any objection. Statements of account were Prepared in terms of these contracts and the plaintiff was receiving moneys from the defendants on the basis of these contracts and according to the price fixed therein. He did not, at any time, raise the slightest protest against the terms of the contract or against the price fixed therein. On the other hand, he received all the contract forms and statements of account as well as the moneys sent to him by cheque. The plaintiff cannot, therefore, be heard to say that he was not a consenting party to the contracts. There is also the circumstance that before the goods were shipped to London they were subjected to a process of trimming and reassortment in the godowns of the defendants with a view to make them conform to London standard and selection. In that process the defendants often called upon the plaintiff to replace the 7 pieces found defective. If the defendants were merely acting as agents the process of trimming and reassorting in the godowns to make the goods conform to London standards and specifications will be unnecessary, for in that case the defendants were merely bound to ship the goods as they were delivered to them. Another important feature of the transaction is that in several contracts time was fixed for delivery of the goods. In some cases like the contracts in forms like P 1 to P 3 the shipment has been effected before the contract forms were issued but there are some contracts which contained the stipulation that the bales were to be sent to the godowns of the defendants for shipment to be effected "promptly" which according to D.W. 1, Ayyalu Chetti meant two weeks. There were also some contracts like exhibit D 2(a) which required the goods to be sent for shipment to be effected within one month, and some other contracts within two months. All the contracts provided that time should be the essence of the contract. If the defendants were acting only as agents for the sale there is no reason why there should be a stipulation in the contract as to the time fixed for the delivery and the stipulation that time should be the essence of the contract. There is also a further condition in the contracts that the sales tax was on seller 's account, the seller being the plaintiff. This circumstance also indicates that the legal relationship between the parties was that of a seller and a purchases and not of a principal and agent. On behalf of the plaintiff it was argued that according to the contract the goods were to be marked with the plaintiff 's mark. It is true that in some of the defendants ' letters such as exhibit P 10 it was mentioned that the bales were sent with the plaintiff 's mark in some shipments but this circumstance has not significance. It only means that the buyer resold the goods to the London purchaser with the mark of the plaintiff. It was also contended on behalf of the plaintiff that "premium" was paid to the plaintiff in case the goods supplied were of special quality. It is in evidence, that the "premium" was extra price obtained in London if the Board of Control was satisfied about the special quality of the goods (vide D 1O). It was pointed out that if the defendants were purchasers the premium should go to them but in some cases the premium was paid to the plaintiff. Exhibits P 7, P 10 and P 1 8, show that for some shipments the premium was paid to the plaintiff. 'The explanation of D.W. 1, Ayyalu Chetti is that in some cases the premium was paid to the plaintiff ex gratia. If in London the quality of the goods was found particularly good the premium was obtained from the London purchaser, that is to say, the premium was obtained not as in terms of the contract but as a special payment if the goods happened to be of good quality. It is a payment therefore, L/S5SCI 3 8 made outside the terms of the contract and there is nothing significant if the defendants considered it fair and just to pay the whole of the premium to the plaintiff or to share it with him in some cases. It was also contended by the plaintiff that According to the terms of the contract the landed weight was to be accepted and the plaintiff was to be responsible for the selection and quality of goods at the destination where inspection would be made by the defendants ' agents or the ultimate London buyers. In some statements of account sent by the 'defendants the plaintiff has been debited various amounts for shortage in weight at London. The plaintiff was also informed about the claims made by the London purchasers on the ground of low standard and selection, that is to say, the plaintiff was made answerable for weight as well as quality. It is true that the liability of the, plaintiff is an additional burden thrown upon him under the terms of the contract but it is of 'no significance in considering the question as to whether the as transfer of title to the goods at the time of shipment from the plaintiff to the defendants. On behalf of 'the plantiff reference was also made to the fact that the contracts provided for a Hen on all the, goods covered by the contracts for all moneys advanced by the defendants, including expenses incurred and interest thereon. it is the admitted position that for purchasing skins and hides, the plaintiff was taking large sums of money as advances from the defendants. We find from the several statements of account that reference is made to all such advances. These advances together with interest thereon are deducted from the sale price payable to the plaintiff and for the balance alone cheques were sent: to him. It appears that on a later date, i.e., in June, 1949 the defendants took a regular hypothecation deed, exhibit P 19 from the plaintiff in respect of all the advances to be made by the defendants. But it should be noticed that in making such advances, the defendants were only acting as creditors of the plaintiff and were, therefore, entitled to charge interest on such advances till they actually purchased the goods from the plaintiff. After the purchase of the goods they did not charge any interest on the moneys paid by them. It appears from the statements of account that interest, was charged on advances upto the date of shipment. In other words the title in the goods passed to the defendants at the moment of shipment of the goods and the fact was that interest was charged on all advances only upto the date of shipment. The charge or lien on the, goods, therefore, subsisted till the time of shipment i.e., till the title in the goods passed to the defendants under the con. tract of sale. We are, therefore, unable to agree with the Counsel for the plaintiff that the clause with regard to the. lien is not consistent with the theory of the transactions being an outright sale,. There was also a suggestion on behalf of the plaintiff that there cannot be a contract of sale subject to c.i.f. terms if there was an out right sale at Madras between the parties. We do not think 9 there is any substance in this argument. The primary object of the contract was that there,was a purchase by the defendants from the plaintiff of the goods for resale in the United Kingdom and in keeping with this object the buyer stipulated with the seller for delivery of the goods abroad and for that purpose adopted a c.i.f. form of &de. It is also contended on behalf of the plaintiff that the term with regard to arbitration "according to the custom obtaining in United Kingdom" was not compatible with the theory of a sale between the parties. It is not possible to accept this argument as correct. It is open to the plaintiff to agree that even after the sale had taken place any dispute with regard to the quality of the goods and selection may be submitted to arbitration in the United Kingdom. It is true that a clause of this description is unusual but it is not inconsistent with the theory that there was a sale of goods between the parties at Madras. We have already observed that the contracts in this case were not c.i.f. contracts but the price alone was fixed on a c.i.f. basis. It is well established that even an agent can become a pur chaser when an agent pays the price to the principal on his own responsibility. In Ex parts White, In re Nevil(1) T & Co. were in the habit of sending goods for sale to N who was a partner in the, firm of N & Co., but received these, goods on his private account. The course of dealing between T & Co. and N was that the goods were accompanied by a price list. N sold the goods on what terms he pleased, and each month sent to T & Co., an ac. count of the goods he had sold, debiting himself with the prices named for, them in the price list, and at the expiration of another month he paid the amount in cash without any regard to the prices at which he had sold the goods, or the length of credit he had given. On these facts it was held by the Court of Appeal in Chancery that though both the parties might look upon the business as an agency, N did not, in fact, sell the goods as agent of T & Co., but on his own account, upon the terms of his paying T & Co. for them at a fixed rate if he sold them, and the moneys he received for them were therefore his own moneys, which T & Co., had no right to follow. A similar principle has been expressed in W. T. Lamb and Sons vs Goring Brick Company, Ltd.(1) In that case, certain manufacturers of ,bricks and other building materials, by an agreement in writing, appointed a firm of builders ' merchants as sole selling agents of all bricks and other materials manufactured at their works". The agreement was expressed to be for three years and afterwards continuous subject to twelve months ' notice by either party. While the ;agreement was in force the manufacturers informed the merchants that they intended in the future to sell their goods themselves without the intervention of any agent, (1) (2) L/S5SCI 3(a) 10 and thereafter they effected sales to customers directly. An action was then brought by the merchants for breach of the agreement. It was hold by the Court of Appeal that the effect of the agreement was to confer on the plaintiffs the sole right of selling the goods manufactured by the defendants at their works, so that neither the defendants themselves nor any agent appointed by them, other than the plaintiffs, should have the right of selling such goods. It was also held that the agreement was one of vendor and purchaser and not one of principal and agent. Though the term 'agent ' was used in the agreement, the Court of Appeal considered that the substance of the transaction was that the manufacturers sold their bricks to the so called agent who in turn sold them on their own responsibility to customers. The price charged by the manufacturers to the sole selling agents was the ruling market price and the sole selling agents were allowed a deduction of 10 per cent by way of commission on that price. The manufacturers had no concern at what rate the sole selling agents sold the goods to customers. It was clear from these facts that the sale by the selling agents to customers was a transaction in which the manufacturers were not interested and there was no privity of contract between the manufacturers and the ultimate purchasers. Reference may be made, in this connection to the following passage from Blackwood Wright, 'Principal and Agent '. Second Edn. page 5: "In commercial matters, where the real relationship is that of vendor and purchaser. persons are sometimes called agents when, as a matter of fact, their relations are not those of principal and agent at all, but those of vendor and purchaser. If the person called an 'agent ' is entitled to alter the goods, manipulate them, to sell them at any price that he thinks fit after they have been so manipulated, and is still only liable to pay for them at a price fixed beforehand, without any reference to the price at which he sold them, it is impossible to say that the produce of the goods so sold was the money of the consignors, or that the relation of principal and agent exists Ex parte White, In re Nevill (1871). 397A purchaser has not to account to his vendor , his only duty is to pay him; and all the other rights and duties which exist between principal, and agent do not exist between vendor and purchaser Ex parte Bright, In re Smith (1879), 10 Ch. 566; Ex parte White, In re Nevill (1871) 6 Ch. " For the reasons already given we are of the opinion that the defendants were purchasers of the plaintiffs goods under the several contracts and not his agents for sale and the view taken by the High Court on this aspect of the case is not correct and must be overruled. 11 We pass on to consider the second question involved in this viz., whether there was a settled account between the parties and whether it is open to the plaintiff to reopen it. It is admitted in this case that for almost every shipment the defendants prepared a statement of account and sent it to the plaintiff giving full particulars of the amount due to him together with the deduction and showing the net balance payable to him and enclosing a cheque for such balance or giving a credit for the sum the accounts. Copies of such accounts are exhibit P 1A,P 2A and P 3A corresponding to the contracts Exs. P 1, P 2 and P 3.Copies of other accounts have been filed by the defendants in the Court and marked exhibit D 18 series. The plaintiff in his evidence did not deny the receipt of these accounts. On the contrary, he admitted in cross examination that for every shipment he was getting accounts and cheques for the balance due. It is an admitted fact that to these statements of account no objection was raised by the plaintiff at any time. Nor a single document has been produced on his side to show that he ever wrote to the defendants raising an objection to the statements of account. Not only the plaintiff failed to raise objection to the several statements of account but at one stage sent a memorandum to the defendants accepting the accuracy of the accounts. On June 20, 1949, the defendants wrote a letter, exhibit P 16, to the plaintiff stating that there was a balance of Rs. 1,26,379/7/2 payable by him, and that against the balance they were holding certain goods belonging to the plaintiff and asking him to confirm the statements. On June 22, 1949 the defendants again wrote a letter exhibit D 5, en closing a statement of account exhibit P 17 showing the said balance of Rs. 1,26,379/7/2 and asking the plaintiff for confirmation. On receipt of this statement the plaintiff signed the memorandum, exhibit D 4 on June 22, 1949 and sent it to the defendants confirming the correctness of the balance as due by him and also confirming the stock of his goods remaining with the defendants. The plaintiff conceded in his evidence having signed exhibit D 4 after the receipt of the statement of account, exhibit P 17. The plaintiff explained that he did not look into the correctness of the figures but believed exhibit P 1 7 to be correct '&as it was sent by an English firm". The plaintiff also said that he was told by the defendants ' broker that if he did not sign it, it would be harmful to him. The trial Judge refused to accept the explanation of the plaintiff and held that the plaintiff had accepted all statements of account as correct and, therefore, it must be held in law that the accounts were settled and the plaintiff could be allowed to reopen it only by proof of fraud or mistake or any other sufficient equitable ground. The legal position is that the accounts are settled or stated if they are submitted and accepted as correct by the other side to whom the accounts have been rendered. Such a statement of 12 accounts need not be in writing, nor is it necessary that before the accounts are settled, they should be gone into by the parties and scrutinised and supported by vouchers. It is sufficient if the accounts are accepted and such acceptance may be inferred by conduct of parties. As observed in Diniell 's Chancery Practice, eighth edition, Vol. 1, p. 419: "The mere delivery of an account will not constitute a stated account without some evidence of acquiescence which may afford sufficient legal presumption of a settlement. " There is also the following passage in Bullen and Leake 's Prece. dents of Pleadings, ninth edition, p. 584: "It is not enough for the accounting party merely to deliver his account; there must be some evidence that the other, party has accepted ' it as correct But such acceptance need not be express; contemporaneous or subsequent conduct may amount to a sufficient acquiescence. Again, in Willis vs Jernegan(1) the Lord Chancellor was dealing with the two objections raised by ' the plaintiffs counsel to the defendant 's plea of a stated account. It was observed by the Lord Chancellor that there was no absolute necessity that the account should be signed by the parties who had mutual dealings to make it a stated account, for even where there were transactions, suppose, between a merchant in England and a merchant beyond sea, and an account was transmitted to England from the person who was abroad, it was not the signing which would make it a stated account, but the person to whom it was sent, keeping it by him any length of time, without making any objection which should bind him and prevent his entering into an open account afterwards. In another case, Tickel vs Short, (2) the Lord Chancellor expressed the opinion that it is the rule of the Court that where a merchant kept an account current by him for about two years without objection, the Court will consider that the accounts are stated or settled. The same principle has been expressed by the Bombay High Court in Seth Maneklal Mansukhbhai vs Jwaladutt Rameshwar Pillani(3) in which it was pointed out that it was sufficient if the accounts were accepted and such acceptance might be inferred by conduct of parties. The contention on behalf of the defendants is that there has been a "stated" or "settled" account in this case and in the ab. sence of fraud, mistake or any other sufficient equitable ground it is not liable to be reopened at the instance of the plaintiff. In connection it is necessary to state that the expression "account (1) ; (2)[1750 51) 2 Ves. (Son.) 239. (3) I.L.R. 13 stated" has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct An account stated in this sense is no more than an admission of a debt out of court, while it is no doubt cogent evidence against the admitting party, and throws upon him the burden of proving that the debt is not due, it may, like any other admission, be shown to have been made in error. Where the transaction is of this character, it makes no difference whether the account is said lo be " 'stated" or to be "stated and agreed";, the so called agreements is,without consideration and amounts to no more than an admission. There is however a second. kind of account stated where the, account contains items both of credit and debit, and the figures on both sides are adjusted between the parties and a balance struck. This is called by Mr. Justice Blackburn, in Laycock vs Pickkes(1) a "real account stated " and he describes it as follows: "There is a real account stated, called in old law an insimul computassent, that is to say, when several items of claim are brought into account on either side, and, being set against one another, a balance is struck, and the consideration for the payment of the balance is the discharge of the items on each side. It is then the same as if each item was paid and a discharge given for each, and in consideration of that discharge the balance was agreed. to be due. It is not necessary,. in order to make out a real account stated, that the debts should be debts in praesenti or that they should be regal debts. I think equitable claims might might be, brought into account, and I am not certain that a moral obligation is not sufficient. It is to be taken as if the sums had been really paid down on each side; and the balance is recoverable as if money had been really taken in satisfaction; subject to this, that where some of the items are such that, if they had been actually paid, the party paying them would have been able to recover them back as on a failure of consideration, the account stated would be invalidated. " In the present case, the "settled account" between the parties falls within the second kind of "account stated" and it is to an account of this description that the equitable doctrine of "settled account" has to be considered. This statement of the law has been affirmed by Lord Wright in delivering the opinion of the Judicial Committee in Bishnu Chan vs Birdhari Lal(2) as the follows: "Indeed, the essence of an account stated is not the ' character of the items on one side or the other, but the (1) 4 B. and B., 497. (2) A.I.R. 1934 P.C. 147, 14 fact that are cross items of account and that the parties mutually agree the several accounts of each. and by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral and creates a new debt and a new cause of action. There are mutual promises, the one side agreeing to accept the amount of the balance of the debt as true (because there must in such cases be. at least in the end, a creditor to whom the balance is due) and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing that it has been discharged to such and such an extent, so that there win be complete satisfaction on payment of the agreed balance. Hence, there is mutual consideration to support the pro mises on either side and to constitute the new cause of action. The account stated is accordingly binding. save that it may be re opened on any ground for instance. fraud or mistake which would justify setting aside any other agreement. " In the present case, the 'correctness of the statements of account furnished by the defendants has been challenged by the plaintiff under 13 heads. In view of our finding that the transactions between the parties were not on the basis of an agency but on the basis of an outright sale the accounts cannot be reopened under any of these heads of challenges. The trial court has already gone into the evidence and has reached the finding that there was no fraud, mistake or any other sufficient equitable ground for reopening the finality of the accounts. As regards one item, viz., rebate in marine insurance, the trial court has ordered that the plaintiff should be given credit for a small sum of Rs. 157/ though there was no evidence of fraud on the part of the defendants. The trial court has rejected the claim of the plaintiff for reopening the accounts on any other ground and in view of our finding that the legal relationship between the parties was not one of agency, we see no reason for interfering with the decision of the trial court on this aspect of the case also. For the reasons expressed, we allow this appeal and set aside the judgment and decree of the High Court in O.S. Appeal No. 22 of 1955 dated the 15th December, 1959 and restore the judgment and decree of the trial Judge dated May 6, 1954 dismissing the suit of the plaintiff and granting a decree for the counter claim of the defendants. The defendants are entitled to the costs of this appeal in this Court and in the High Court. Appeal allowed.

During consolidation proceedings in a village, under the Uttar Pradesh Consolidation of Holdings Act, 1954, a question of title arose, and the Consolidation Officer referred the question to the Civil Judge who referred it to an arbitrator appointed under section 37 of the Act. The Arbitrator submitted his award to the Court. The appellants filed objections under section 15 of the , and the Civil Judge modified the award. On appeal by the respondents, the District Court held that the appeal was maintainable and that the Civil Judge was not justified in modifying the award. A revision petition to the High Court filed by the appellants was dismissed. In appeal to this Court, it was contended that section 39 of the , which provides for appeals does not apply to arbitrations under section 37 of the U.P. Act. HELD:The decision of the Civil Judge modifying, the award was appealable under section 39 of the . [67 A]. The effect of section 37 of the U.P. Act read with sections 46 and 47 of the is, to apply sections 15 and 39 of the to the proceedings under the U.P. Act; and under section 12(5) of the U.P. Act what is made final is the decision of the arbitrator as it emerges after appropriate proceedings, under the provisions of the . [65 G H; 66 H]. Carju Prasad vs Civil Judge, Farrukhabad, I.L.R. [1959]. 1 All354 and Sayed Ulla Khan vs The Temporary Civil Judge, Sultanpur, , approved. Attar Singh vs State of u.p. [1959] Supp. 1 S.C.R. 928, explained.

Civil Appeal No. 2526 of 1972. Appeal from the Judgment and Order dated the 13th January, 1972 of the Calcutta High Court in Matter No. 326 of 1967. G. C. Sharma and section P. Nayar, for the Appellant. D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, section R. Agarwala and Parveen Kumar for the Respondent. The Judgment of the Court was delivered by KHANNA, J. This appeal on certificate is against the Full Bench judgment of the Calcutta High Court whereby on petition under article 226 of the Constitution of India filed by the respondent that court by majority quashed notice under section 148 of the Income tax Act, 1961 (hereinafter referred to as the Act) issued by appeallant No. 2 (Income tax Officer E Ward, Hundi Circle, Calcutta) (hereinafter referred to 958 as the appellant) for the purpose of reopening assessment of the income of the respondent for the assessment year 1958 59. The respondent was assessed for the assessment year 1958 59 under section 23(3) of the Indian Income tax Act, 1922 on June 14, 1960. His total income was assessed to be Rs. 37,872. While making the assessment the Income tax Officer allowed deduction of a sum of Rs. 15,991 by way of expenses claimed by the respondent. The expenses included Rs. 10,494/4 As/3 Pies by way of interest. According to the respondent, he produced through his authorised representative all books of accounts, bank statements and other necessary documents in connection with the return. On March 14, 1967 the respondent received notice dated March 8, 1967 issued by the appellant under section 148 of the Act stating that the appellant had reason to believe that the respondent 's income which was chargeable to tax for the assessment year 1958 59 had escaped assessment within the meaning of section 147 of the Act and that the notice was being issued after obtaining the necessary satisfaction of the Commissioner of Income tax. The respondent was called upon to submit within 30 days from the date of the service of the notice a return in the prescribed form of his income for the assessment year 1958 59. On May 2, 1967 the respondent through his lawyer stated that there was no material on which the appellant had reason to believe that the respondent 's income had escaped assessment and, therefore, the condition precedent for the assumption of jurisdiction by the appellant had not been satisfied. The appellant was said to have no competence or jurisdiction to re open the assessment under section 147 of the Act on a mere change of opinion. The appellant was also called upon to furnish all the materials on which he had reason to believe that income had escaped assessment. As, according to the respondent, there was no satisfactory response from the appellant, he filed petition under article 226 of the Constitution for quashing the impugned notice. It was denied in the affidavit on behalf of the appellant that all materials relevant and necessary for the assessment of the respondent 's income for the assessment year 1958 59 had been produced before the Income tax Officer at the time of the original assessment. It was further stated: "Subsequent to the assessment for the assessment year 1958 59, it was discovered, inter alia, that some of the loans shown to have been taken and interests alleged to have been paid thereon by the petitioner during the relevant assessment year were not genuine. The Income tax Officer had reason to believe and bona fide believed that the said alleged loans and the interest alleged to have been paid thereon are not genuine. If necessary, I crave leave to produce before the hon 'ble Judge hearing the application, the relevant records on the basis of which the said Income tax Officer had reason to believe that the income of the petitioner escaped assessment as aforesaid at the hearing of the application. " During the pendency of the proceedings the High Court directed that a copy of the report made by the appellant to the Commissioner of 959 Income tax for obtaining latter 's sanction under section 147 be produced. The report was accordingly produced, and the same reads as under: "There are hundi loan credits in the name of Narayan singh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., who are known name lenders, and also hundi loan credit in the name, Mohansingh Kanayalal, who has since confessed he was doing only name lending. In the original assessment these credits were not investigated in detail. As the information regarding the bogus nature of these credits is since known, action under section 147 (a) is called for to reopen the assessment and assess these credits as the undisclosed income of the assessee. The assessee is still claiming that the credits are genuine in the assessment proceedings for 1962 63. Commissioner 's sanction is solicited to reopen the assessment for 1958 59, under section 147(a). " All the three Judges who constituted the Full Bench found that the assessee was not being charged with omission to disclose all facts: he was charged for having made an untrue disclosure because the assessee had stated that he had received certain sums of money from certain persons as loans when, in fact, he had not received any sum at all from these persons. It was also stated by the assessee at the time of the original assessment that he had paid interest to certain persons when, in fact, he had not, if the information received later was true. The duty of the assessee, it was held, was not only to make a full disclosure of all material facts, his duty was also to make a true disclosure of facts and not to mislead the assessing officer by disclosing certain things which did not represent facts. The High Court accordingly held that once an assessee infringes this rule, any subsequent discovery of fact by the assessing officer which would raise a resonable belief in his mind that the assessee had not made a true and correct disclosure of the facts and had thereby been responsible for escapement of his income from assessment would attract section 147 of the Act. Two of the learned Judges, A. K. Mukherjea and section K. Mukherjea JJ., however, took the view that the conditions precedent for the exercise of jurisdiction by the Income tax Officer under section 147 of the Income tax Act were not fulfilled in the case as the report submitted by the Income tax Officer to the Commissioner for sanction under section 147(a) was defective. The defects in the report, in the opinion of the High Court, were the same as had been pointed out by this Court in the case of Chhugamal Rajpal vs section P. Chaliha.(1) The Commissioner, while according permission for taking action under section 147, it was observed, acted mechanically because the Commissioner had not expressly stated that he was satisfied that this was a fit case for the issue of notice under section 148. As against the majority, Sabyasachi Mukherji J. held that notice under section 148 of the Act was valid and did not suffer from any infirmity. It was 960 also observed that the Commissioner of Income tax had not acted improperly in giving sanction. In the result, by majority the High Court quashed the notice issued by the appellant to the respondent. In appeal before us Mr. Sharma on behalf of the appellants has assailed the judgment of the majority of the learned Judges in so far as they have held that the report submitted by the Income tax Officer to the Commissioner of Income tax for sanction was defective. As against that, Dr. Pal on behalf of the assessee respondent has canvassed for the correctness of the view taken by the majority regarding the defective nature of the report. Dr. Pal has in his own turn assailed the finding of all the three learned Judges of the High Court in so far as they have held that the assessee was being charged with omission to disclose true facts. Contention has also been advanced by Dr. Pal that the material on the basis of which the Income tax Officer initiated these proceedings for reopening the assessment did not have a rational connection with the formation of the belief that the assessee had not made a true disclosure of the facts at the time of the original assessment. Before dealing with the points of controversy, it would be useful to reproduce the relevant provisions of the Act. Sections 147 and 148 which deal with income escaping assessment and issue of notice where income has escaped assessment read as under: "147. Income escaping assessment. If (a) the Income tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income tax officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assess or ressess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereinafter in sections 148 to 153 referred to as the relevant assessment year). Explanation 1. For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely: (a) where income chargeable to tax has been under assessed; or 961 (b) where such income has been assessed at too low a rate; or (c) where such income has been made the subject of excessive relief under this Act or under the Indian Income tax Act, 1922 (XI of 1922); or (d) where excessive loss or depreciation allowance has been computed. Explanation 2. Production before the Income tax Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Income tax Officer will not necessarily amount to disclosure within the meaning of this section. Issue of notice where income has escaped assessment. (1) Before making the assessment, reassessment or recomputation under section 147, the Income tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section. (2) The Income tax Officer shall, before issuing any notice under this section, record his reason for doing so. " Sub section (1) of section 149 prescribes the time limit for notice and reads as under: "(1) No notice under section 148 shall be issued" (a) in cases falling under clause (a) of section 147 (i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub clause (ii); (ii) for the relevant assessment year, where eight years, but not more than sixteen years, have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees fifty thousand or more for that year; (b) in cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant assessment year. " Section 151 pertains to the sanction for issue of notice and reads as under: "151. Sanction for issue of notice. (1) No notice shall be issued under section 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice. 962 (2) No notice shall be issued under section 148 after the expiry of four years from the end of the relevant assessment year, unless the Commissioner is satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice. " The provisions of sections 147 to 153 of the Act correspond to those of section 34 of the Indian Income tax Act, 1922. There have been some points of departure from the old law, but it is not necessary for the purpose of the present case to refer to them. It would appear from the perusal of the provisions reproduced above that two conditions have to be satisfied before an Income tax Officer acquires jurisdiction to issue notice under section 148 in respect of an assessment beyond the period of four years but within a period of eight years from the end of the relevant year, viz., (1) the Income tax Officer must have reason to believe that income chargeable to tax has escaped assessment, and (2) he must have reason to believe that such income has escaped assessment by reason of the omission or failure on the part of the assessee (a) to make a return under section 139 for the assessment year to the Income tax Officer, or (b) to disclose fully and truly material facts necessary for his assessment for that year. Both these conditions must co exist in order to confer jurisdiction on the Income tax Officer. It is also imperative for the Income tax Officer to record his reasons before initiating proceedings as required by section 148(2). Another requirement is that before notice is issued after the expiry of four years from the end of the relevant assessment years, the Commissioner should be satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice. We may add that the duty which is cast upon the assessee is to make a true and full disclosure of the primary facts at the time of the original assessment. Production before the Income tax Officer of the account books or other evidence from which material evidence could with due diligence have been discovered by the Income tax Officer will not necessarily amount to disclosure contemplated by law. The duty of the assessee in any case does not extend beyond making a true and full disclosure of primary facts. Once he has done that his duty ends. It is for the Income tax Officer to draw the correct inference from the primary facts. It is no responsibility of the assessee to advise the Income tax Officer with regard to the inference which he should draw from the primary facts. If an Income tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment. The grounds or reasons which lead to the formation of the belief contemplated by section 147(a) of the Act must have a material bearing on the question of escapement of income of the assessee from assessment because of his failure or omission to disclose fully and truly all material facts. Once there exist reasonable grounds for the Income tax Officer to form the above belief, that would be sufficient to clothe him with jurisdiction to issue notice. Whether the grounds are adequate or not is not a matter for the court to investigate. The 963 sufficiency of grounds which induce the Income tax Officer to act is, therefore, not a justiciable issue. It is, of course, open to the assessee to contend that the Income tax Officer did not hold the belief that there had been such non disclosure. The existence of the belief can be challenged by the assessee but not the sufficiency of reasons for the belief. The expression "reason to believe" does not mean a purely subjective satisfaction on the part of the Income tax Officer. The reason must be held in good faith. It cannot be merely a pretence. It is open to the court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section. To this limited extent, the action of the Income tax Officer in starting proceedings in respect of income escaping assessment is open to challenge in a court of law [see observations of this Court in the cases of Calcutta Discount Co. Ltd. vs Income tax Officer and section Narayanappa & Ors. vs Commissioner of Income tax while dealing with corresponding provisions of the Indian Income tax Act, 1922]. Keeping the above principles in view, we may now turn our attention to the facts of the present case. Two grounds were mentioned in the report made by the Income tax Officer for reopening the assessment of the assessee respondent with a view to show that his income had been under assessed because of his failure to disclose fully and truly material facts necessary for the assessment. One was that Mohansingh Kanayalal, who was shown to be one of the creditors of the assessee, had since confessed that he was doing only name lending. The other ground was that Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., whose names too were mentioned in the list of the creditors of the assessee, were known name lenders. So far as the second ground is concerned, neither the majority of the Judges of the High Court nor the learned Judge who was in the minority relied upon that ground. Regarding that ground, the learned Judge who was in the minority observed that no basis had been indicated as to how it became known that those creditors were known namelenders and when it was known. The majority while not relying upon that ground placed reliance upon the case of Chhugamal Rajpal (supra). In that case the Income tax Officer while submitting a report to the Commissioner of Income tax for obtaining his sanction with a view to issue notice under section 148 of the Act stated: "During the year the assessee has shown to have taken loans from various parties of Calcutta. From D.I. 's Inv. No. A/P/Misc. (5) D.I./63 64/5623 dated August 13, 1965, forwarded to this office under C.I.T., Bihar and Orissa, Patna 's letter No. Inv. (Inv.) 15/65 66/1953 2017 dated Patna September 24, 1965 it appears that these persons are name lenders and the transactions are bogus. Hence, proper investigation regarding these loans is necessary. The names of some of the persons from whom money is alleged to have been taken on loan on hundis are: 1. Seth Bhagwan Singh Sricharan 964 2. Lakha Singh Lal Singh 3. Radhakissen Shyam Sunder The amount of escapement involved amounts to Rs. 1,00,000. " In dealing with that report this Court observed: "From the report submitted by the Income tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessee 's omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year, nor could it be said that he, as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that year. We are not satisfied that the Income tax Officer had any material before him which could satisfy the requirements of either clause (a) or clause (b) of section 147. Therefore he could not have issued a notice under section 148". Reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., in the report of the Income tax Officer to the Commissioner of Income tax in the instant case does not stand on a better footing than the reference to the three names in the report made by the Income tax Officer in the case of Chuugamal Rajpal. We would, therefore, hold that the second ground mentioned by the Income tax Officer, i.e., reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., could not have led to the formation of the belief that the income of the respondent assessee chargeable to tax had escaped assessment for that year because of the failure or omission of the assessee to disclose fully and truly all material facts. All the three learned Judges of the High Court, in our opinion, were justified in excluding the second ground from consideration. We may now deal with the first ground mentioned in the report of the Income tax Officer to the Commissioner of Income tax. This ground relates to Mohansingh Kanayalal, against whose name there was an entry about the payment of Rs. 74 Annas 3 as interest in the books of the assessee, having made a confession that he was doing only name lending. There is nothing to show that the above confession related to a loan to the assessee and not to someone else, much less to the loan of Rs. 2,500 which was shown to have been advanced by that person to the assessee respondent. There is also no indication as to when that confession was made and whether it relates to the period from April 1, 1957 to March 31, 1958 which is the subject matter of the assessment sought to be reopened. The report was made on February 13, 1967. In the absence of the date of the alleged confession, it would not be unreasonable to assume that the confession was made a few weeks or months before the report. To infer from that confession that it relates to the period from April 1, 1957 to March 965 31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in our opinion, would be rather far fetched. As stated earlier, the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts. It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income tax Officer on the point as to whether action should be initiated for reopening assessment. At the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and far fetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. The fact that the words "definite information" which were there in section 34 of the Act of 1922 at one time before its amendment in 1948 are not there in section 147 of the Act of 1961 would not lead to the conclusion that action cannot be taken for reopening assessment even if the information is wholly vague, indefinite, far fetched and remote. The reason for the formation of the belief must be held in good faith and should not be a mere pretence. The powers of the Income tax Officer to reopen assessment though wide are not plenary. The words of the statute are "reason to believe" and not "reason to suspect". The reopening of the assessment after the lapse of many years is a serious matter. The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment. The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income tax authorities after the assessment has been completed. The provisions of the Act in this respect depart from the normal rule that there should be, subject to right of appeal and revision, finality about orders made in judicial and quasi judicial proceedings. It is, therefore, essential that before such action is taken the requirements of the law should be satisfied. The live link or close nexus which should be there between the material before the Income tax Officer in the present case and the belief which he was to form regarding the escapement of the income of the assessee from assessment because of the latter 's failure or omission to disclose fully and truly all material facts was missing in the case. In any event, the link was too tenuous to provide a legally sound basis for reopening the assessment. The majority of the learned Judges in the High Court, in our opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts. We would, therefore, uphold the view of the majority and dismiss the appeal with costs. P.B.R. Appeal dismissed.

In March 1967, after obtaining the satisfaction of the Commissioner the appellant issued a notice under section 148 of the Income Tax Act, 1961 stating that he had reason to believe that the respondent 's income chargeable to tax for the assessment year 1958 59 had escaped assessment. The respondent replied that the I.T.O. had no competence or jurisdiction to reopen the assessment under section 147 of the Act on a mere change of opinion. Since there was no reply from the appellant, the respondent moved the High Court for a writ. The High Court held that the conditions precedent for the exercise of jurisdiction by the Income Tax Officer were not fulfilled because the report submitted by the Income Tax Officer to the Commissioner under section 147(a) was defective. On appeal to this Court it was contended that the High Court was not right in holding that the Income Tax Officer 's report was defective. Dismissing the appeal, ^ HELD: The High Court was right in holding that the material before the Income Tax Officer could not have led to the formation of the belief that the income of the assessee had escaped assessment because of his failure or omission to disclose fully and truly all material facts. [965H] 1. (a) The two conditions required to be satisfied before the Income Tax Officer issued a notice under section 148 of the Income Tax Act are that he must have reason to believe (i) that the income chargeable to tax had escaped assessment and (ii) that such income had escaped assessment by reason of the omission or failure on the part of assessee, to disclose fully and truly material facts necessary for assessment for that year. Both these conditions must co exist in order to confer jurisdiction on the Income Tax Officer. Further the Income Tax Officer should record his reasons before initiating proceedings under section 148(2); before issuing the notice after the expiry of four years from the end of the relevant assessment year, the Commissioner should be satisfied on the reasons recorded by the Income Tax Officer that it was a fit case for the issue of such notice. [962C D] (b) The duty cast upon the assessee does not extend beyond making a true and full disclosure of the primary facts. It is then for the Income Tax Officer to draw the correct inference from the primary facts. Where his inference subsequently appears to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening the assessment. [962F G] (c) The grounds or reasons leading to the formation of the belief under section 147(a) must have a material bearing on the question of escapement of income. Once there exist reasonable grounds for the Income Tax Officer to form the above belief, that would be sufficient to clothe him with jurisdiction to issue notice. While the sufficiency of grounds which induce the Income Tax Officer to act is not justiciable, it is open to the assessee to contend that the Income Tax Officer did not hold the belief that there was such non disclosure. The expression "reason to believe" does not mean a purely subjective satisfaction on the part of the Income Tax Officer. It is open to the Court to examine whether the reasons for the formation of the belief have a rational connection with or relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section. [962H] 957 Chhugamal Rajpal vs section P. Chaliha , Calcutta Discount Co. Ltd. vs Income Tax Officer, 41 I.T.R. 191 and section Narayanappa & Ors. vs Commissioner of Income Tax followed. In the instant case the grounds given by the Income Tax Officer for reopening the assessment were (i) that the three persons whose names were mentioned in the list of creditors, were known name lenders and (ii) that another person shown as a creditor of the assessee had since confessed that he was doing only name lending. The first ground mentioned by the Income Tax Officer could not have led to the formation of the belief that the income of the respondent had escaped assessment for that year because of his failure or omission to disclose fully and truly all material facts. The High Court was justified in excluding that ground from consideration. [963D E] As regards the second ground there is nothing to show that the confession of another person related to a loan to the assessee and not to someone else. There is no indication as to when the confession was made and whether it related to the assessment year sought to be re opened. To infer from that confession that it related to the period of assessment and that it pertained to the loan shown to have been advanced to the assessee would be far fetched. [964G] 2(a). Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of his belief that there had been escapement of income of the assessee from assessment in the particular year. It is not any and every material, howsoever vague and indefinite or distant, remote and far fetched which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. The fact that the words "definite information" in section 34 of 1922 Act before its amendment in 1948 do not find a place in section 147 would not lead to the conclusion that action could now be taken for reopening assessment even if the information was wholly vague, indefinite, far fetched and remote. [965B D] (b) The powers of the Income Tax Officer to reopen assessment, though wide, are not plenary. The words are "reason to believe" and not "reason to suspect". The provisions of the Act depart from the normal rule that there should be finality about orders made in judicial and quasi judicial proceedings. It is, therefore, essential that before such action is taken the requirement of the law should be satisfied. [965E F] In the instant case the live link or close nexus between the material before the Income Tax Officer and the belief which he was to form regarding the escapement of the income was missing or at any rate the link was too tenuous to provide a legally sound basis for reopening the assessment.

Civil Appeal Nos 1032 1036 of 1973. From the Judgment and order dated 16.2.1973 of the Gauhati High Court in Civil Rule Nos. 1142 to 1146 of 1971 S.T. Desai, R.P Agarwala, Mrs Kum Kum Sen, Praveen Kumar, D.N. Mukherjee, Ranjan Mukherjee and N.R. Choudhary for the Appellants. Dr. V. Gauri Shanker and Miss A. Subhashini for the Respondents. The Judgment of the Court was delivered by DUIT, J. The appellants, who are all registered firms within the meaning of section 2(39) of the Income Tax Act, 1961, hereinafter referred to as 'the Act ', have preferred these appeals against the judgments of the Gauhati High Court overruling the challenge of the appellants as to the legality of the interest charged by the Income tax officer for the delayed filing of returns and also as to the constitutional validity of sub section (4) of section 139 of the Act, as it stood before April 1, 197 l The relevant provisions of section 139, as it stood prior to April 1. 1971, are as follows: "section 139(1). Every person, if his total income . . during the previous year exceeded the maximum amount which is not chargeable to Income tax, shall furnish a return of his income . . . . (a) in the case of every person . before the expiry of six months from the end of the previous 692 year . , or before the 30th day of June of the assessment year, whichever is later; (b) in the case of every other person, before the 30th day of June of the assessment year: Provided that, on an application made in the pre scribed manner, the Income tax officer may, in his discretion, extend the date for furnishing the return (i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the 31st day of December of the year immediately preceding the assessment year, and in the case of any person referred to in clause (b), up to a period not extending beyond the 30th day of September of the assessment year without charging any interest; (ii) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired after the 31st day of December of the year immediately preceding the assessment year, up to the 31st day of December of the assessment year without charging any interest; and (iii)up to any period falling beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be pay able from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return (a) in the case of a registered firm or an unregistered firm which has been assessed under clause (b) of section 183, on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm and (b) in any other case, on the amount of tax payable on the total income. 693 reduced by the advance tax, if any, paid or by any tax deducted at source, as the case may be. In the case of any person, who in the Income tax officer 's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income tax officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner setting forthwith such other particulars as may be prescribed; Provided that on an application in the prescribed manner the Income tax officer may, in his discretion, extend the date for the furnishing of the return, and when the date for furnishing the return, whether fixed originally or on extension, falls beyond the 30th day of September or, as the case may be, the 31st day of December of the assessment year, the provisions of sub clause (iii) of the proviso to sub section ( 1) shall apply. Any person who has not furnished a return within the time allowed to him under sub section (1) or sub section (2) may before the assessment is made furnish the return for any previous year at any time before the end of four assessment years from the end of the assessment year to which the return relates, and the provisions of sub clause (iii) of the proviso to sub section (1) shall apply in every such case. " In all these cases, it is not disputed that no application for extension of time to file returns was made by the appellants for the relevant assessment years. The returns were submitted before the assessment was made and also before the end of the four assessment years as mentioned in sub section (4) of section 139 of the Act. The Income tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of tax payable by them. In view of sub section (4) of section 139, the Income tax officer also added to the amount of tax interest calculated at the rate of six per cent per annum on the amount of tax which would have H 694 been payable if the firms had been assessed as unregistered firms. A Being aggrieved by the charging of interest under sub section (4) read with clause (iii)(a) of the proviso to sub section ( I) of section 139 of the Act, the appellants filed writ petitions before the Gauhati High Court, challenging the charging of interest and the validity of subsection (4) read with clause (iii)(a) of the proviso to sub section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution The Gauhati High Court, as stated already, overruled the challenge and dismissed the writ petitions except that some writ petitions were allowed in part only as the High Court directed the Income tax officers to take into account the advance tax paid by the assessees before calculating the interest. Hence these appeals. The first contention made on behalf of the appellants is that it is clear from the provisos to sub sections ( 1) and (2) of section 139 of the Act that unless an application is made for extension of the date for furnishing the return, the question of charging any interest on the amount of tax does not at all arise. A similar contention was made before the High Court by the appellants, but the High Court overruled the same. Much reliance has been placed on behalf of the appellants on an observation of this Court in Commissioner of Income tax, A.P. vs M. Chandra Sekhar, ; In that case, this Court has observed that it is only where the Income tax officer extends the time for furnishing the return beyond September 30, or December 31, as the case may be, the interest becomes payable The said observation has been made by this Court relating to clause (iii) of the proviso to sub section ( 1) of section 139 of the Act while considering the question whether charging of interest indicated that the Income tax officer was satisfied that there was sufficient cause for the delay in filing the return of income and whether the cancellation of the penalties levied under section 27(1)(a) of the Act was justified. Nothing has, however, been said by this Court in respect of sub section (4) of section 139 of the Act. Sub section (4) is a substantive provision and it does not provide for making an application to the Income tax officer for the purpose of extension of the date for the furnishing of the return. What is provided in sub section (4) is that even though a person does not furnish the return within the time allowed to him under sub section (I) or subsection (2), yet he may furnish the same before the end of the four assessment years concerned. 695 The substantive provision of sub sections (l) and (2) of section 139 specify the time within which the return has to be filed The provisos to sub sections (1) and (2) confer power on the Income tax officer to extend the date for filing the return on an application in that regard made by the assessee. So, it is clear that the expression 'time allowed ' in sub section (4) of section 139 is not confined only to the extension of time granted by the Income tax officer, but also to the time originally fixed for the filing of returns under sub sections ( 1) and (2) of section 139 of the Act. There may be two types of cases for the late filing of returns, namely ( 1) the assessee after getting the date extended by the Income tax officer under sub section ( 1) or sub section (2) of section 139 of the Act, does not file the return within the extended date, but files the same before the end of four assessment years concerned and (2) the assessee without filing any application for extension of time, files the return beyond the period mentioned in sub section ( 1) or sub section (2) but before the end of four assessment years in question. In either case, the provision of clause (iii) of the proviso to sub section (l) of section 139 will apply. In other words, the Income tax officer will be entitled to charge interest on the amount of tax in accordance with the provision of clause (iii) of the proviso to sub section ( 1) of section 139. Thus, where time has been extended by the Income tax officer on an application made in that regard by the assessee and the assessee does not file the return within the time allowed and where no such application has been made by the assessee, but the return is filed by him beyond the time allowed, but before the end of the four assessment years concerned, in either case, the Income tax officer will be entitled to charge interest in accordance with the provision of clause (iii) of the proviso to sub section (1) of section 139 of the Act. There is, therefore, no substance in the contention of the appellants that as the appellants had not made any application praying for the extension of time for the filing of returns, the Income tax officer had no authority to charge interest under the provision of clause (iii) of the proviso to sub section ( I) of section 139 of the Act The next question that requires consideration relates to the validity of sub section (4) read with clause (iii)(a) of the proviso to subsection (I) of section 139. It is submitted by the learned Counsel appearing on behalf of the appellants that as, in view of the late filing of the returns, there is postponement of the payment of tax and the Revenue suffers loss on account of delayed payment of tax, the interest when levied takes the character of penalty This contention 696 need not detain us long, for it has already been decided by this Court in Central Provinces Manganese ore Co. Ltd. vs Commissioner of Income tax, [ that interest is levied by way of compensation and not by way of penalty. In Chandra Sekhar 's case (supra? this Court also has taken a similar view. The High Court, however, has taken the view that the interest charged partakes also of a penal character. In expressing that view, the High Court has placed reliance upon a decision of this Court in Jain Brothers and others vs Union of India and others, [ In that case, this Court was mainly considering a challenge to section 271(2) of the Act, which is a penal provision, on the ground of contravention of Article 14 of the Constitution. The question whether charging of interest under the proviso to section 139(1) of the Act was in the nature of penalty or not, was not considered by this Court. Indeed, the subject matter was different from that with which we are concerned. In view of the decisions of this Court in Chandra Sekhar 's case (supra) and in the case of Central Provinces Manganese ore Co. Ltd. (supra), we hold that the charging of interest did not become transformed to penalty. It is urged on behalf of the appellants that all the assessees who are charged with interest for the late filing of returns, should be classified in one and the same category inasmuch as they are similarly situated, but sub section (4) read with clause (iii) of the proviso to sub section ( I) of section 139 of the Act has without any reasonable justification placed the registered firms in a separate category inasmuch as for the late filing of returns by such firms they are saddled with interest to be calculated on the amount of tax payable by them as unregistered firms. It is submitted that such separate classification of the registered firms for the purpose of payment of interest under section 139, does not bear any nexus to the object sought to be achieved by the section and, accordingly, the provision of sub section (4) read with clause (iii)(a) of the proviso to sub section (1) of section 139 of the Act is discriminatory and violative of the provision of Article 14 of the Constitution and, as such, is void. In support of the contention, the appellants have placed much reliance upon a decision of the Karnataka High Court in M. Nagappa vs Income tax officer, Central Circle 1, Bangalore, [ In that case, a learned Single Judge of the Karnataka High Court has struck down as void the provision of sub section (4) read with clause (iii)(a) of the proviso to sub section ( 1) of section 139 The reason that weighed with the learned Judge is that the loss suffered by the Government which is sought to be compensated by the legislative measure 697 should be the same in all cases, irrespective of the fact that the assessee who is responsible for it is a registered firm or. any other kind of assessee. If that is the case, then the amount claimed by way of interest should be directly correlated to the amount of tax withheld by the assessee without reference to the kind of assessee concerned in a given case. It is observed that the object of levy of interest being just reimbursement of what the Government would lose by delayed payment of tax resulting from the delayed filing of the return, it is clear that the levy of interest in the case of a registered firm on the tax which would have been payable if the firm had been assessed as an unregistered firm, is outside the said object. Accordingly, it has been held that section 139(4) to the extent it required a registered firm to pay interest at the specified rate on the tax assessed as if it were an unregistered firm, whenever the registered firm did not file the return within the specified time, was violative of Article 14 of the Constitution and is, therefore, void. That decision of the learned Single Judge has been upheld by a Division Bench of the Karnataka High Court and is since reported in [ The Karnataka High Court, before holding that provision of sub section (4) of section 139 read with clause (iii)(a) of the proviso to sub section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution, has not considered the reason why, when a registered firm submits a return beyond time, it is charged with interest calculated on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm. It is because of certain privileges which have been conferred on a registered firm. One of the privileges is that the firm is considered as an assessable unit and is taxed at a reduced rate and the partners are assessed on their respective shares in the income of the firm. This privilege which has been conferred on a registered firm by the Act, is not available to an unregistered firm. The Legislature is, however, competent to withhold any of the privileges conferred on a registered firm if it violates any of the provisions of the Act. A registered firm is required to file its return within the time as prescribed by the Act. Clause (iii)(a) of the proviso to section 139(1) read with sub section (4) of section 139 in effect only provides for the withdrawal of the privilege of the registered firm to be assessed at a reduced rate because of its non compliance with the provisions of sub sections (1) and (2) of section 139 of the Act. In other words, the registered firm is treated as an unregistered firm for purposes of quantification of interest. The contention of the appellants that by treating the registered 698 firms as unregistered firms for the charging of interest, the Legislature has placed the registered firms in a separate category is not at all comprehensible. On the other hand, by treating the registered firms as unregistered firms, the Legislature has avoided the discrimination that would have been there if the registered firms were not so treated for the purpose of charging of interest. In other words, if the registered firms had been charged with interest on the amount of tax assessed at a reduced rate for the late filing of the returns, there would have been discrimination between registered firm and unregistered firms. When a registered firm and an unregistered firm commit the same default in filing returns beyond the time allowed under sub sections ( 1) and (2) of section 139 of the Act, it would be unreasonable and unjust to charge two different rates of interest one at a reduced rate for the registered firm and the other at a higher rate for the unregistered firm. So, in our opinion, section 139(4) read with clause (iii)(a) to the proviso of section 139(1) of the Act, as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing as, for the purpose of interest, they are similarly situated. Dr. Gouri Shankar, learned Counsel appearing for the Revenue, has pointed out to us that except the Karnataka High Court, other High Courts, namely, Madras High Court, Gujarat High Court, Madhya Pradesh High Court, Punjab & Haryana High Court and the Calcutta High Court in Mahendrakumar Ishwarlal & Co. vs Union of India, , since affirmed on an appeal reported in ; Chhotalal & Co. vs Income tax officer, ; Jiwanmal Hospital vs Income tax officer, ; Hindustan Steel Forges vs Commissioner of Income tax, [ and Mohanlal Soni vs Union of India, [ respectively have taken the view that treating of registered firms as unregistered firms for the purpose of charging of interest for the late filing of returns cannot be said to be arbitrary and violative of Article 14 of the Constitution. The view expressed in these decisions, in our opinion, is correct. As has been noticed already, the Karnataka High Court did not consider the question of withholding of the privileges conferred on the registered firm on their default in filing returns within the time allowed under sub sections (1) and (2) of section 139 of the Act, so that they may be treated on equal footing with unregistered firms making the same default. In the circumstances, no discrimination has been made between a registered firm and an unregistered firm and, accordingly, the provision of sub section (4) of section 139 read with clause (iii)(a) of the proviso to sub section (1) of section 139 of the Act is not violative of Article 14 of the Constitution and is quite 699 legal and valid. The decision of the Karnataka High Court in Nagappa 's case (supra), as affirmed on appeal by the Division Bench of that High Court, in so far as it declares the said provision as ultra vires Article 14 of the Constitution, is erroneous. Before we part with these appeals, we think we should clarify one situation, namely, where the advance tax duly paid covers the entire amount of tax assessed, there is no question of charging the registered firm with interest even though the return is filed by it beyond the time allowed, regard being had to the fact that payment of interest is only compensatory in nature. As the entire amount of tax is paid by way of advance tax, the question of payment of any compensation does not arise. In C.A. No. 1035 of 1973, it appears that total tax for the assessment year 1968 69 was assessed at RS. 16,288. The assessee paid advance tax amounting to Rs.39,018 in three instalments on 25.9.1967, 24.1.1968 and 2.3.1968. It is apparent that the amount of advance tax paid by the assessee fully covered the amount of tax payable by it. In spite of that, the Income tax officer charged the assessee for the said assessment year a sum of Rs. 14,233 as interest under section 139 of the Act for the delayed filing of the return. As has been observed earlier, when the amount of tax and already been paid in the shape of advance tax, the question of payment of compensation by way of interest does not arise and the Income tax officer was not, therefore, justified in charging interest. The assessee is, therefore, entitled to get refund of the amount paid by way of interest for the said assessment year. The Income tax officer is directed to refund to the assessee the amount paid on account of interest. In the result, C.A. No. 1035 of 1973 is allowed and the remaining appeals are dismissed. There will, however, be no order as to costs in any of these appeals. S.L. Appeal No. 1035/73 allowed and others dismissed.

% The appellants, registered firms under the Income Tax Act, 1961, filed delayed returns. The Income Tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of the tax payable by them. The Income Tax officer also determined and added, under sub section (4) of section 139 of the Act, the amounts of interest on the amounts of tax payable by the appellants. The appellants challenged the charging of interest in the High Court by writ petitions. The High Court dismissed all but some writ petitions which were allowed in part to the extent that the Income tax officer was directed to take into account the advance tax paid by the assessees while calculating the interest. The appellants have filed Civil Appeals Nos. 1032 1036 of 1973, 1927 1933 of 1978 and 1288 and 1289 of 1980 against the decision of the High Court. Allowing Civil Appeal No. 1035 of 1973 and dismissing all the other appeals, the Court, ^ HELD: Sub section (4) of section 139 of the Income Tax Act is a substantive provision, which does not provide for the making of an application to the Income Tax officer for extention of the date for furnishing return. The sub section provides that even though a person does not furnish the return within the time allowed under sub section (1) or (2) of section 139, yet he may furnish the same before the end of four assessment years concerned. The substantive provisions of subsections (1) and (2) specify the time within which the return has to be filed. The provisos to the sub sections confer power on the Income tax officer to extend the date for filing the return on an application. The expression "time allowed" in sub section (4) is not confined only to the extension of time granted by the Income tax officer but also to the time originally fixed for 690 filing the returns under sub section(1) and (2). [694G H;695A D] The Income Tax officer is entitled to charge interest in accordance with the provisions of clause (iii) of the proviso to sub section (1) of section 139 in a case where time has been extended by the Income Tax officer to file returns on application made by the assessee and the return is not filed within the time allowed, and in a case where no such application has been made by the assessee, and the return is filed beyond the time allowed but before the end of the four assessment years concerned. [695D F] Secondly, as decided by this Court in Central Provinces Manganese Ore Co. Ltd. vs Commissioner of Income Tax, ; , and Commissioner of Income Tax A.P. vs Chandra Sekhar, ; , the interest is levied by way of compensation, and not by way of penalty as contended by the appellants. [696A] The contention of the appellants that the provisions of Sub Section (4) of section 139, read with clause (iii) (a) of the proviso to Sub Section (1) of section 139 is discriminatory and violative of Article 14 of the Constitution because Sub Section (4) has placed the registered firms in a separate category inasmuch as they have to pay interest calculated on the amount of tax payable by them as unregistered firms, and a registered firm is treated as an unregistered firm, for purposes of qualification of interest, is not comprehensible, Section 139 (4) read with clause (iii)(a) of the proviso to section 139(1), as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing and is not violative of Article 14 of the Constitution and is quite legal and valid. [697H; 698A D] Where advance tax duly covers the entire amount of the tax assessed, there is no question of charging a registered firm with interest if the return is filed beyond the time allowed, regard being given to the fact that payment of interest is only compensatory in nature. As the entire amount of the tax is paid by way of advance tax, the question of payment of any compensation does not arise, and accordingly, in the facts and circumstances of the case in the C.A. No. 1035 of 1973, the Income Tax of officer was not justifed in charging interest, and the assessee in that case is entitled to refund of the amount paid by way of interest. [699B C, E] Commissioner of Income Tax, A . P. vs M. Chandra Sekhar, ; , Central Provinces Manganese ore Co. Ltd. vs Commissioner of Income Tax, [1986] 160 I.T.R. 961; Jain Brothers 691 and others vs Union of India and others, ; M. Nagappa vs Income Tax officer, Central Circle I, Bangalore, ; Mahendra Kumar Ishwarlal and Co. v, Union of India, and ; Chhotalal & Co. vs Income Tax officer; ; Jiwanmal Hospital vs Income Tax officer, ; Hindustan Steel Forges vs Commissioner of Income Tax, and Mohanlal Soni vs Union of India, , referred to.

Civil Appeal No. 653 of 1991. 284 From the Judgment and Order dated 11. 12.1989 of the Central Administrative Tribunal, Chandigarh in O.A. No. 694 of 1988. Avadh Behari, A.K. Sharma and Inderjit Singh Mehra for the Appellants. Dr. Anand Prakash, B. Krishna Prasad and S.M. Ashri for the Respondent. The Judgment of the Court was delivered by SINGH, J. Leave granted. Whether family pension payable under the service rules could be bequeathed by means of a will by the deceased employee during his life time, is the question involved in this appeal. Briefly, the facts giving rise to this appeal are that, Issac Alfred was employed in the Railway Workshop, Jagadhri as a Skilled Mechanic, Tool Shop, he died in harness on 16.10.1984. On his death a dispute arose between Mrs. Violet Issac, widow of the deceased Railway employee, his sons, daughters and Elic Alfred, brother of the deceased regarding family pension, gratuity and other emoluments, payable by the Railway Administration. Violet Issac, widow of the deceased employee made an application before the competent Railway Authority for the grant of family pension and for payment of gratuity and other dues to her, her four sons and one daughter, who are appellant Nos. 2 to 6. The Railway Authorities did not pay any amount to the appellants as an injunction order had been issued by the Sub Judge, 1st Class, Jagadhri in Civil Suit No. 365/85 filed by Elic Alfred, brother of the deceased employee, restraining the appellants from claiming or receiving any amount which were to the credit of the deceased Railway employee towards C.T.D. Account, gratuity, family pension and other dues. It appears that the relations between late Issac Alfred and his widow Smt. Violet Issac and the children were not cordial, as a result of which he had made nomination in favour of his brother and further he had executed a will dated 9.9.1984 in favour of Elic Alfred bequeathing all his properties to him including the family pension, gratuity etc. When the appellants raised claim for family pension and other dues before the Railway Authorities, Elic Alfred filed Civil Suit No. 365/85 for the issue of a permanent injunction restraining the appellants from receiving or claiming any monetary benefits from the Railway Administration. In his suit Elic Alfred had 285 pleaded that in view of the will, his deceased brother 's widow and children were not entitled to any benefit from the Railway Authorities, instead he was entitled to the deceased 's estate including the right to receive family pension and other dues. The Civil Court issued an injunction order restraining the appellants from receiving any amount from the Railway Authorities as a result of which the Railway Administration did not pay any amount to them. The appellants, thereupon, made an application before the Central Administrative Tribunal, Chandigarh for the issue of a direction for the release of the amounts on account of gratuity, group insurance, provident fund, CTD account, and family pension. The appellants pleaded that the will relied upon by Elic Alfred was a forged one and Elic Alfred was not entitled to receive pensionary benefits. On an application made by the appellants the suit pending before the Civil Court was also transferred to the Tribunal 's file. The Tribunal by its order dated 11. 12.1989 held that since the dispute related to rival claims based on title arising from relationship in one case and from a will in the other, it has no jurisdiction to decide the same. The Tribunal further directed for the transfer of the civil suit to the Civil Court for trial in accordance with law. The appellants have challenged the order of the Tribunal by means of the present appeal. The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension. We would therefore deal with the question of family pension only. Family Pension Rules 1964 provide for the sanction of family pension to the survivors of a Railway Employee. Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service. Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, which ever is earlier. The Rules do not provide for payment of family pension, to brother or any other family member or relation of the deceased Railway employee. The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the 286 'wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The Family Pension Scheme is in the nature of a welfare scheme framed by the Railway Administration to provide relief to the widow and minor children of the deceased employee. Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. In Jodh Singh vs Union of India & Anr., [ ; this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. The Court observed: "Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition. The Court further held that what was not payable during the life time of the deceased over which he had no power of disposition could not form part of his estate. Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition. We, accordingly hold that Mrs. Violet Issac the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding, the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother Elic Alfred. As regards appellant Nos. 2 to 6 are concerned, it has been stated on behalf of the Railway Administration that they are not minors, therefore, under the Rules they are not entitled to any family pension. We, accordingly allow the appeal, set aside the order of the Tribunal and direct the respondent Railway Adminstration to sanction family pension in accordance with the Rules to the appellant No. 1 and to pay the arrears within two months. The respondent 's suit, so far as it relates to the 287 family pension cannot proceed but we do not express any opinion, with regard to other claims raised therein. It has been brought to our notice on behalf of the respondent Railway Administration that the appellants have been occupying the Railway quarter which had been allotted to late Issac Alfred, even though they are not entitled to occupy the same. On behalf of the appellants, it was urged that since they had not been paid any dues by the Railway Administration they were not in a position to vacate the premises. The Railway Administration is free to evict them in accordance with the Rules, only after arrears of family pension are paid to Mrs. Violet Issac. The Railway Administration will charge rent from the appellants at the rate on which the quarter had been let out to the deceased Railway employee. There will be no order as to costs. V.P.R. Appeal allowed.

The Delhi Rent Control Act, 1958 was amended by Act 57 of 1988 which introduced Sections 14B to 14D to the Act carving out thereby classified landlords from the general class of landlords with specified rights to recover immediate possession of the premises let out by them if these are required for their own residence. The released or retired persons from armed forces or the dependents of the member of armed forces killed in action are covered by Section 14B, the retired employees of the Central Government and of the Delhi Administration are covered by Section 14C, and the landlords who are widows are covered by Section 14D. These classified landlords are also given the benefit of summary trial under Chapter IIIA by introducing Sections 14B to 14D in Sub section (1) of Section 25B, but there are no corresponding amendments to sub sections (2) to (5) of Section 25B. The two petitioners, who are tenants, were in occupation of the premises belonging to two Army Officers (respondent landlords). In the 365 action for eviction brought by the landlords on the ground that they needed the premises for their occupation, the tenants sought leave to contest the application which the Rent Controller being not satisfied with the facts disclosed by the tenants in their affidavits denied. The Rent Controller accepted the case of the landlords and ordered eviction of the tenants. The two tenants challenged the eviction orders by filing separate revision petitions in the High Court. They also challenged the validity of Section 14B of the Act before the High Court by means of two separate writ petitions under Article 226 of the Constitution. The High Court dismissed the writ petition and the revision petition filed by one of the tenants who being aggrieved moved this Court by way of special Leave Petition Nos. 7146 Court following its decision in the first case dismissed the writ petition filed by him, though the revision petition filed by him was still pending. The tenant challenged the decision of the High Court by preferring Special Leave Petition No. 7364 of 1990 to this Court. It was contended on behalf of the petitioners that the tenant 's right to contest the application for eviction on the grounds specified in Section 14(l)(e) cannot be denied even as against the classified landlords falling under Sections 14B to 14D. The tenant is entitled to leave to contest the application by disclosing such facts in the affidavit as would disentitle the landlord from obtaining an order of eviction under Section 14(l)(e). This is because of retention of sub section (5) of Section 25B without any amendment and absence of amendment to Section 25C(2). It was also contended that sub sections (4) and (5) of Section 25B are a composite scheme and since that scheme has been left untouched the tenant 's right thereunder cannot be denied. It was further contended that sub section (6) of Section 14 is attracted to applications under Sections 14B to 14D. Dismissing the Petitions, the Court, HELD: 1. Section 14B is a special provision made by the legislature conferring certain rights to persons belonging to Armed Forces to recover from their tenants immediate possession of the premises for their occupation. [369E] 2.1 The Tenant cannot claim right to contest an application for eviction on the grounds specified in Section 14(l)(e) against the classified landlords falling under Sections 14B to 14D. Acceptance of such a claim would practically obliterate the purpose and object of classification of landlords under Sections 14B to 14D who are carved out from 366 the general landlords; indeed it would render the whole exercise of creating special classes of landlords with specified rights to recover immediate of the premises let out by them nugatory. [371H 372C] 2.2 The remedy under Section 14(l)(e) is available only to landlords in general or the landlords who are not classified landlords under Sections 14B to 14D. The classified landlords have been conferred with certain rights which are different from and independent of the rights under Section 14(l)(e). [372E F] 2.3 Sections 14B to 14D are markedly different from Section 14(1)(e).[375E F] 3.1 The argument that the absence of amendments to sub sections (4) and (5) of Section 25B preserves the tenant 's right to contest the application of even a classified landlord on the grounds specified under Section 14(l)(e) is not sustainable. Sub section (4) of Section 25B provides that the tenant has to obtain leave from the Controller "as hereinafter provided", which in the contest means as provided under sub section (5). This is the only sub section under which the Controller could give leave to the tenant to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises. [376G, F] 3.2 The form specified in the Third Schedule refers only to application filed under Section 14(l)(e) or Section 14A. Therefore, when an application is filed under Section 14B, a copy of the application should be sent to the tenant by making necessary amendment to the prescribed form and omitting the other references which are not relevant and the summons should state that the application is filed under Section 14B and not under Section 14(l)(e) or 14A. Likewise if the applications are under Sections 14C to 14D, the summons should state accordingly. That would indicate the scope of defence of the tenant for obtaining leave referred to in sub section (5) of Section 25B. [377G 378A] 3.3 Under sub section (5), the tenant could contest the application by obtaining leave with reference to the particular claim in the application of the landlord depending upon whether it is under Sections 14A, 14B, 14C or 14D or under Section 14(l)(e). [378B] The tenant cannot be allowed to take up defence under Section 14(l)(e) as against an application under Section 14B. There cannot be 367 any defence unconnected with or unrelated to the claim or right of the plaintiff or applicant. That would be against our jurisprudence and would be a mechanical interpretation of the enactment defeating its purpose. The courts have always adopted a purposive approach to the interpretation of statutes. [378C D] 3.4 Section 14B and other allied provisions ought to receive a purposeful construction and sub section (5) of Section 25B should be so construed as to implement the object and purpose of Sections 14B to 14D. It is the duty of the Court to give effect to the intention of the legislature as expressed in Sections 148 to 14D. [378E] 4. The tenant is entitled to raise all relevant contentions as against the claim of the classified landlords. The fact that there is no reference to the word bona fide requirement in Sections 14B to 14D do not absolve the landlord from proving that the requirement is bona fide or the tenant from showing that it is not bona fide. In fact every claim for eviction against a tenant must be a bona fide one. There is also enough indication in support of this construction from the title of section 25B which states "special procedure for the disposal of applications for eviction on the ground of bonafide requirement". [378H 379B] 5. Section 14B and other allied provisions refer to the premises let out and not acquired by transfer. One may become an owner of the premises by transfer but the tenant in occupation of the transferred property cannot be evicted by resorting to Sections 14B to 14D. If the transferee wants to evict the tenant he must take action only under Section 14(l)(e). Equally Sub section (7) of Section 14 has no application to eviction under Sections 14B to 14D, nor the amended provisions under Section 25C(2). But that does not mean that the tenants covered under Sections 14B to 14D are not entitled to any time for surrendering possession of the premises. It is always left to the Controller who is a quasi judicial authority to exercise his discretion having regard to the facts and circumstances of each case and grant a reasonable time to the tenant. [379E G] 6. The Controller 's power to give leave to contest the application filed under Section 14(l)(e) or Section 14A is cribbed by the condition that the 'affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified ' in the respective sections. Therefore, if an application is filed under Section 14B or 14C or 14D, the tenant 's right to contest the application is narrowed down 368 and is restricted to the parameters of the respective Sections. He cannot widen the scope of his defence by relying upon Section 14(l)(e). Subsection (5) of Section 25B is self contained and Order 37 Rule 3 CPC has no part to play there. [38OB C] Busching Schmitz Private Ltd. vs P.T. Menghani & Anr.,[1977] 2 SCC 835, affirmed and reiterated. Precision Steel & Engineering Works and Anr. vs Prem Deva Niranjan Deva Tayal, , harmonised. The landlord in SLP No. 11425/90 is living in a rented house and is paying a rent of Rs.2,000 p.m. and requires the premises for himself and the members of his family. The landlord cannot be denied possession of his own premises under section 14B when he is residing in a rented premises. [38OD E] 8. The contention that the concerned landlord has taken voluntary retirement long earlier and has become a part of the Society just like any other landlord and Section 14B was not intended to confer such landlord the special right to recover immediate possession of the premises is not maintainable because Section 14B(l) states that the persons who have already retired may within one year from the date of their release or retirement from such Armed Forces or, within a period of one year from the date of introduction of Section 14B, whichever is later, apply to the controller for recovering the immediate possession of their premises. That is the legislative wisdom. [38OF G] 9. True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meanings, it is permissible to supply the words". Having regard to the context in which a provision appears and, the object of the statute in which the said provision is enacted, the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. [378E G] Craies Statute Law, 7th Edition, P. 109; Hameedia Hardware Stores V. B. Mohan Lal Sowcar, ; at 524 25, and Sirajul Haq Khan & Ors. vs The Sunni Central Board of Waqf, [1959].1 SCR 1287 at 1299, relied upon.

vil Appeal Nos. 1631 33 of 1987 etc. From the judgment and order dated 10.7.1987 of the Bombay High Court in W.P. Nos. 941, 986 and 1012 of 1987. A.S. Bobde. General. section K. Dholakia and A.S, Bhasme for he Appellants. Soli J. Sorabjee, R.N. Sachhar, Mrs. Aruna Mathur, J. Wad, K.J. John and A.K. Sanghi for the Respondents. The judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These civil appeals and special leave petitions centre around one point, namely, the validity of the Bombay Motor Vehicles Tax Act, 1958 as amended by Section 3 of the Maharashtra Act, XIV of 1987 as well as Section 6 of the said Act as amended by Maharashtra Act XXXlll of 1987 as well as the Maharashtra Act IX of 1988. PG NO 486 The Bombay Motor Vehicles Tax Act, 1958 prior to its amendment in 1987 provided for levy of tax on vehicles annually or quarterly. In 1987, by Section 3 of the Maharashtra Act No. XIV of 1987, sub section (IC) was added to provide for levy of one time tax at 15 times the annual rate on all motor cycles used or kept for use in the State. The said provisions further provided that in case of motor cycles used or kept for use by a company or other commercial organisation, the one time tax was to be levied at thrice the rate. Section 6 of the Maharashtra Act 14 of 1987, added sub section (6) to Section 9 of the principal Act. The new sub section (6) enabled a registered owner of motor cycle or tricycle to obtain refund of "one time tax" in cases where (a) the vehicle is removed outside the State; and (b) the registration of vehicle is cancelled due to scrapping of the vehicle, or for a similar reason. The refund was to be paid in accordance with the Fourth Schedule. The Third and Fourth Schedules were introduced by the Maharashtra Act 14 of 1987. In the case of Luna Mopeds, the one time tax comes to Rs.2925 which according to the petitioners in the S.t.P. Nos. 1 1673 75/87, is 86% of the ex factory price of the Moped. In that view the petitions were filed by the respondents in the first batch of appeals and the petitioners in the second batch challenging the amended provisions of the Bombay Motor Vehicles Tax Act, 1958. On or about 9/10th July. 1987, a Division Bench of the Bombay High Court, Nagpur Bench held that the levy of one time tax was beyond the legislative competence of the State Legislature and also beyond Entry 57 of List II of the Seventh Schedule. It further held that the provisions for imposition of levy at thrice the rates so far as the vehicles owned by the firm or the company, were neither discriminatory nor arbitrary. The High Court, however, in view of the fact that the refund was restricted to the circumstances mentioned above. struck down Act 14 of 1987. According to the High Court, the absence of provisions for refund in cases of temporary non user made the Maharashtra Act XlV of 1987, confiscatory in character and not regulatory or compensatory which alone was in the competence of the State Legislature. The State preferred applications for leave to appeal against the impugned judgment and the special leave having been granted, are the subject matter of Civil Appeals Nos. 1631 33/877. The petitioners also, filed special leave applications which are the subject matter of Special Leave Petitions Nos. 11673 75/87 which have been heard along with these appeals. While the State 's appeal against the High Court 's judgment was pending before this Court, the Maharashtra Legislature enacted Maharashtra Act XXXIII of 1987. It deleted Section 3(4) of the principal Act, as PG NO 487 amended by Maharashtra Act XIV of 1987. That provision made the existing provisions of refund for temporary non user inapplicable in cases of motor cycles and tricycles, restricting the right of refund to Section 9(6) in contingencies mentioned above. It also introduced sub section (7) to Section 9 conferring right of refund in respect of motor cycles and tricycles in accordance with the rates specified in the Fifth Schedule and prescribed the rates of refund in the Fifth Schedule. But the said Schedule did not prescribe a separate rate of refund for company owned vehicles. Therefore, the refund in respect of company owned vehicles would be same as that payable to individual owned vehicles, even though the tax paid on former class of vehicles was three times. Soon thereafter the Maharashtra Legislature enacted Act 9 of 1988 The only relevant change for the present purpose was that the rate of refund was enhanced to three times in respect of company owned vehicles. Before the contentions are judged, it is imperative to reiterate that the tax imposed on motor vehicles or a class of motor cycles would not be valid unless it is compensatory or regulatory or does not have any nexus with the vehicles using the public roads. In such a case the levy would be violative of Act. 301 of the Constitution and would not be protected by Act. 304 of the Constitution. In this connection reference may first be made to the observations of this Court in Bolani Ores Ltd. vs State of Orissa, ; where at page 155 this Court observed that Entry 57 of List II of the Seventh Schedule was subject to the limitations, namely, the power of taxation cannot exceed the compensatory nature which must have some nexus with the vehicles using the roads. If the vehicles do not use the roads, notwith standing that these are registered under the Act, these cannot be taxed. More or less the same view was echoed in G. K. Krishnan vs The State of Tamil Nadu & Anr., [1975 ] 2 SCR 715. See also Malwa Bus Service (P) Ltd. vs State of Punjab & Ors. ,[1983] 2 SCR 1009. On behalf of the appellant State, the learned Advocate General submitted that the amendments enacted by the Maharashtra Act No. 33 of 1987 and No. 9 of 1988, have brought the principal Act as amended by the Maharashtra Act No. XIV of 1987 within the constitutional requirements of making `one time tax ' a regulatory and compensatory tax. It was submitted by him that this development had made it unnecessary for this Court to decide if the Act, as it stood when it was challenged before the High Court, was beyond the legislative competence of the State Legislature. It was PG NO 488 further emphasised that the fact that the Act at present, does not provide for refund in the 14th & v 15th years, does not make the law outside the competence of the State Legislature. It was urged that the concept of "regulatory and compensatory tax" does not imply mathematical precision. In this context one may refer to the observations of this Court in International Tourist Corpn. vs State of Haryana & Ors. , ; , where at page 374 Justice Chinnappa Reddy speaking for this Court observed as follows : "But to say that the nature of a tax is of a compensatory and regulatory nature is not to say that the measure of the tax should be 'proportionate to the expenditure incurred on the regulation provided and the services rendered. If the tax were to be proportionate to the expenditure on regulation and service it would not be a tax but a fee. While in the case of a fee it may be possible to precisely identify and measure the benefits received from the Government and levy the fee according to the benefits received and the expenditure incurred, in the case of a regulatory and compensatory tax it would ordinarily be well high impossible to identify and measure, with any exactitude, the benefits received and the expenditure incurred and levy the tax according: to the benefits received and the expenditure incurred. What is necessary to uphold a regulatory and compensatory tax is the existence of a specific. identifiable object behind the levy and a nexus between he subject and he object of he levy. " Earlier this principal had been sated in Income tax officer Shillong & Anr.v. N. Takim Roy Rymbai etc. ,[1976] 3 SAC 413, where this Court observed though taxation law could not claim immunity from the equality clause i n Article 14 of the Constitution, it must be remembered that in view of the intrinsic complexity of fiscal adjustments of diverse element, he State has a considerably wide discretion in the matter of classification of taxation purposes. the fact that the tax falls more heavily on some in the same category, is by itself no ground to render the law invalid. Similar are he observations of this Court in Mrs. Meenakshi & Ors. vs State of Karnataka & Ors., AIR 1983 Sc 1283; Anant Mills Co Ltd. vs State of Gujarat & Ors.,[1975] 3 SC 220 and Khhandige Sham Bhat & Ors. V. The Agricultural Income ax Office; , PG NO 489 In the instant case, the impugned legislation had been subsequently amended to provide for the refund of a proportionate part of the one time tax in the event of the vehicle not being used for a period of quarter or more than a quarter of a year as mentioned before. This was provided by substituting a new sub section (7) to section 9 of the Act and also substituting new Fifth Schedule. Even after the amendment, however, no refund is available in respect of a vehicle which has been registered for more than 13 years. The effect of the same is that no refund at all is available in respect of the tax paid for a vehicle for the 14th and 15th years, it was urged on behalf of the respondents in the appeals and the petitioners in the S.L.Ps. It was submitted on their behalf that so far as four wheelers are concerned, Section 9(1) of the act provided for refund of the proportionate amount of tax for every completed calendar month for which the vehicle has not been used. It was urged on behalf of the respondents in the appeals and the petitioners in the S.L.Ps. that there is no justification what so ever for the non grant of the refund of the proportionate amount of tax paid in respect of a two wheeler or three wheeler, which is not used in its 14th and/or 15th year. On this score, it was urged on their behalf that the impugned levy of tax ceases to be compensatory or regulatory and as such is void under Entry 57 of List II and thus violative of Article 301 of the Constitution. In our opinion the fact that the Act, as at present, does not provide for refund in the 14th and 15th years, does not make the law outside the competence of the State Legislature. The concept of "regulatory and compensatory" tax does not imply mathematical precision of quid pro quo. This aspect was emphasised in International Tourist Corporation etc. vs State of Haryana & Ors. , (supra) as noted before. It was further submitted on behalf of the owners of two wheelers that the impugned one time levy of Rs.975 has been worked out at Rs.65 per two wheeler per annum for 15 years and is sought to be recovered from the two wheeler owner as a one time down payment at the time the two wheeler is purchased by him. On behalf of the respondents/petitioners it was contended that having regard to the extent of road user by a two wheeler, in comparison with the road user by a four wheeler, the Legislature considered that. a tax of Rs.65 per two wheeler per annum would be a reasonable and adequate compensatory levy. While the maximum annual rate of tax was fixed at Rs. 200 per annum for motor cars weighing not more than 750 kg and Rs.36O per annum for motor cars PG NO 490 weighing between 750 kg to 1500 kg it may be noted that the tax on four wheelers has not been increased. But as far as two wheelers are concerned the one time tax for the period of 15 years is exactly 15 times the amount of tax of Rs.65 per year. It is clear from these factors, it was submitted by the owners of the two wheelers, that the Legislature continues to consider the tax of Rs.65 per two wheeler per year to be an adequate compensatory tax. However, by recovering the tax for the future period of 15 years in advance as a one time levy, the taxing authorities are in fact recovering not Rs.65 per two wheeler per year but in reality about Rs.356.79 per two wheeler per year. The respondents/petitioners sought to explain the position by submitting that if the two wheeler owner has an amount of Rs.975 with him at the time of purchase of the vehicle, and is not compelled to make one time payment, then he would initially pay only Rs.65 as the tax for the first year. That would leave a balance amount of Rs.9.10 which could be invested by him at an interest yield of 15% per annum. It was urged that the rate of interest that is recoverable as well as paid under the Income Tax Act is 15% per annum. The said amount of Rs.910 would yield an interest of Rs. 136.50 in the first year. Out of that amount of Rs. 136.50 an amount of Rs.65 would be paid by the two wheeler owner as tax at the beginning of the second year. Consequently, an amount of Rs.71.50 would be available from out of the said interest earning of Rs. 136.50, which also could be invested at a yield of 15% per annum. Consequently, the amount of interest that would be earned by the vehicle owner in the second year would come to Rs. 147. 23, out of which only Rs.65 would have to be paid as tax in the beginning of the third year, leaving a balance of Rs.82.23 available for further investment. It was submitted that by compelling the vehicle owner to make the one time down payment of Rs.975 at the time of the purchase of the vehicle, the owner is in reality being deprived of a total amount of Rs.4376. 19 over the said period of 15 years. If this amount is divided by 15, the resultant figure will be Rs.291.79. The effective tax burden has thus in fact been multiplied by about 5 times only as a result of the one time levy, it was urged. It was submitted that the said one time levy was unreasonable, discriminatory and not regulatory or compensatory. The fact that a tax on motor vehicles must be compensatory and regulatory in order to be valid, was emphasised in the decision of this Court in Stare of Karnataka vs K. Gopalakrishna Shenoy and another, A.I.R. 1487 S.C. 1911 where at page 1915 of the report, it was observed that tax on motor vehicles is a compensatory tax levied for the use of the roads and it is not a tax on ownership or possession of motor vehicles. It was emphasised on behalf of the owners of the vehicles that the impugned legislation is based on PG NO 491 the assumption that two wheelers and three wheelers have an approximate life of 15 years. It is on that basis and footing that the rates of tax have been fixed. It was contended that the life of two wheelers and three wheelers is as much as 25 to 30 years and therefore, the recovery of the one time tax for the period of 15 years actually constitutes the conferment of a benefit on the owners of two wheelers and three wheelers. In this connection, on the other hand it is of importance to note that the Department of Heavy Industry, Ministry of Industry, Government of India, had commissioned a report from an eminent firm of Chartered Accountants on Long Term Demand Projections for Automotive Vehicles (including two wheelers and three wheelers). The said report concludes, after an exhaustive analysis of statistical data including the data provided by vehicle manufacturers and also studies made in the past, that the average life of scooters is 10 years, that of motor cycles c) years and that of mopeds 5 years. But what was emphasised was that one time levy of tax compelled owners of two wheelers to incur a further expenditure of about 70% of the cost of the vehicles purchased by them at the time they acquire the vehicle and that imposes heavy additional liabilities. It was, therefore, submitted that it was neither compensatory nor regulatory and further more, it was discriminatory. It was further submitted that section 3(IC)(c) exempts public trusts and recognised institutions. That was bad. In our opinion, after the amendment the mischief mentioned in the judgment and order of the High Court of Bombay has been remedied. On an examination of the various provisions of the Act as amended, we have come to the conclusion that after the amendment the Act comes within the constitutional requirement of making the one time tax a regulatory and compensatory tax. It is true as was emphasised that the Act has not provided for refund in the 14the and 15th years but does not make the law outside the competence of the State Legislature. It is not mathematical precision that is necessary nor can it be. There is in the provisions as amended, a discernible and an identifiable object behind the levy and a nexus between the subject and the object of the levy. In this matter two principles have to be emphasised, firstly. that the tax must be regulatory and compensatory and secondly, there must be no discrimination. About discrimination it is well to remember that a taxation law cannot claim immunity from the equality clause in Article 14 of the Constitution. But in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerably wide discretion and latitude in the matter of classification PG NO 492 for taxation purpose is permissible. See the observations of this Court in Income Tax Officer, Shillong and Anr. vs N. Takim Roy Rymbai etc. , (supra). Also see the observation in Mrs. Meenakshi and others vs State of Karnataka, (supra); Anant Mills Co. Ltd. vs State of Gujarat & Ors., (supra) and Khandige Sham Bhat and Ors. vs The Agricultural Income tax Officer, (supra). The evidence on record shows that the life of motor cycles and tricycles normally exceeds 25 years. The so called non refund for certain period is not conclusive of the matter. Even if mathematical precision is not possible, we cannot say that it is wholly unmathematical. The collection of tax for a period of 15 years at one point of time is a convenient method enabling the owner to use the vehicle for more than 25 years, without having to visit the office to pay the tax periodically, and pay enhanced tax that may be levied during the 25 years of life of the vehicle. Regulatory and compensatory tax can be levied to the extent the State is required to pay for rendering the services. According to the State, the evidence on record shows that the cost of services is twice the total amount recovered from all types of vehicles. The balance of expenditure is met by the State from the general revenues. Even from this half collection, the motor cycles and tricycles contribute only 6.4 per cent. The percentage of motor cycles and tricycles is 56 to 58 percent of all vehicles. Thus, even insubstantial increase in their rates cannot be said to be not a "regulatory or compensatory" tax measure. The Act, as at present, is not violative of Article 14 of the Constitution. The fact that company owned vehicles are taxed at three times the rate payable by individuals, does not make the legislation violative of Article 14. Historically, the company owned vehicles have always been taxed at a rate higher than the individually owned vehicles. As appears from the records produced. the motor cycles and tricycles constituting 56 to 58 per cent of all types of vehicles contribute only 6.4 per cent of the total revenue earned through the tax imposed by the Act. It is well settled that the Legislature has the power to distribute tax burden in a flexible manner and the Court would not interfere with the same. This principle has been reiterated in G.K. Krishnan etc. vs The State of Tamil Nadu & Anr. , (supra) where this Court observed that in the context of commercial regulation, Article 14 is offended only if the classification rests on grounds wholly irrelevant to the achievement of the objective and this lenient standard is further weighted in the State 's favour by the fact that a statutory discrimination will not be set aside if a state of facts may reasonably be conceived by the PG NO 493 Court to justify it. Tax laws have to respond closely to local needs and Court 's familiarity with these needs is likely to be limited. Therefore, the Court must be aware of its own remoteness and lack of familiarity with the local problems. Classification is dependent upon peculiar needs and specific difficulties of the community. The needs and the difficulties of a community are constituted out of facts and information beyond the easy ken of the Court. It appears that in the instant case, the State Government has specifically averred that the company owned vehicles travel more and use roads more often. No evidence have been produced to the contrary. In view of the well settled principles, we cannot say that there was without any basis and as such there was discrimination. It further appears that the Government of lndia has liberalised the licensing policy and granted large number of industrial licences for the manufacture of two wheelers. In Maharashtra itself following is the new registration of two wheelers during the last four and five year: " 1983 84 1,13,949 1984 85 1,24,877 1985 86 1,66,124 1986 87 2,01,904" In 1986 87 per working day on an average 929 new two wheeler have been registered. There was tremendous strain on Motor Vehicles Department due to increase in the number of two wheeler. The following statistics and figures indicate the position that one time tax on two wheelers have beneficient effect: "As on 1.4.1987 there were 10,93,170 two wheelers in Maharashtra and total number of vehicles was 1841 lakhs. In 1985 86 the total revenue by way of Motor Vehicles Tax was Rs.98 crores out of which only Rs. 6 to 7 crores was from two wheelers. That means 58% vehicles (3 wheelers) used to give only 6.4% Motor Tax for which 22,000 man days were required to be spent. All the two wheeler owners were required to come to R.T.O. for payment of tax every year. PG NO 494 Almost 70 to 75% Motor Vehicle Tax arrear cases were of 2 wheelers. Because of new system of one time tax if the owner pays it, he is not required to pay the tax again during the life time of the 2 wheeler. Any further increase in one time tax rate will not be applicable to the 2 wheelers which have already paid the one time tax. Statistics show that the 2 wheelers are being used for more than 25 years. The rate of increase of 2 wheelers because of easy availability and affordability is almost 25%. The total number of two wheelers projections in the State will be as follows: By the end of 1986 87 10.94 lakh 1987 88 13.33 lakh 1988 89 16.20 lakh 1989 90 19.69 lakh 1990 91 23.77 lakh 1991 92 28.73 lakh Existing vehicles will have to pay one time tax in sliding scale rate. Older the vehicles, less will be the tax. This tax system is already in existence in Karnataka since 1.4.1986 and also in Gujarat, Rajasthan. This new system will definitely give relief to the two wheeler owners as they will not be required to come to R.T. Office for annual payment." Having regard to these factors and having regard to the principles applicable to taxation laws, we are of the opinion that the Maharashtra Act as amended from time to time and mentioned hereinbefore, does not suffer from any vice of being not regulatory or compensatory taxation nor from the vice of being violative of Article 14 of the Constitution. In that view of the matter, the challenge to the provisions of the Act as amended after the judgment of the PG NO 495 Bombay High Court cannot be maintained. In that view of the matter, Civil Appeals Nos. 1631 1633 of 1987 are disposed of by saying that after the amendments noted here in before the Act does not suffer from the vice mentioned in the judgment of the High Court of Bombay. The appeals are, therefore, allowed and disposed of accordingly. In that view of the matter the challenge made in the special leave petitions Nos. 11673 75 of t987 is dismissed. In the facts and circumstances of the case, there will be no orders as to costs. Interim orders, if any, are vacated. The taxes will be realised in accordance with the Act and necessary adjustments will be made accordingly.

These Civil appeals and special leave petitions centred round one point, namely, the validity of the Bombay Motor Vehicles Tax Act, 1958 as amended by Section 3 of the Maharashtra Act XIV of 1987 and Section 6 of the said Act as amended by Maharashtra Act XXXIII of 1987 and the Maharashtra Act IX of 1988. Section 3 of the said Act XIV of 1987 added sub section (IC) to provide for the levy of one time tax at 15 times the annual rate on all motor cycles in the State. The said provisions further provided that in the case of motor cycles owned by a company or other commercial organisation, the one time tax was to be levied at thrice the rate. Section 6 of the said Act XIV of 1987 added sub section (6) to section 9, enabling a registered owner of a motor cycle or tricycle to obtain refund of `Lone_time tax" under certain conditions. Petitions were filed in the High Court by the respondents in the appeals and petitioners in the special leave petitions, challenging the amended provisions of the principal Act. The High Court held that (i) the levy of the one time tax was beyond the legislative competence of the State Legislature and also beyond Entry 57 of List II of the Seventh Schedule, and (ii) the provision for imposition of levy at thrice the rates on the vehicles owned by a firm or company, were neither discriminatory nor arbitrary. The High Court struck down Act XIV of 1987. The appeals by leave were filed by the State and the special leave petitions were fixed by the petitioners in this Court against the decision of the High Court. In the meanwhile, the Maharashtra Legislature enacted Maharashtra Act XXXIII of 1987, which deleted Section 3(4) of the principal Act as amended by the PG NO 482 PG NO 483 Maharashtra Act XIV of 1987, whereby the existing provisions of refund for temporary non user were made inapplicable in cases of motor cycles and tricycles, restricting the right of refund to Section 9(6) in the contingencies mentioned therein. It also introduced sub section (7) to section 9 conferring the right of refund in respect of motor cycles and tricycles in accordance with the rates specified in the Fifth Schedule. But the said schedule did not prescribe a separate rate of refund for the company owned vehicles. Therefore, the refund in respect of the company owned vehicles was the same as that payable to individual owned vehicles even though the tax paid on former class of vehicles was three times. Soon thereafter, the Maharashtra Legislature enacted Act IX of 1988, whereby the only relevant change for the present purpose was that the rate of refund was enhanced to three times in respect of the company owned vehicles. Before this Court, the appellant State submitted that the amendments enacted by the Maharashtra Acts XXXllI of 1987 and IX of 1988 had brought the principal Act as amended by the Maharashtra Act XIV of 1987 within the constitutional requirements of making one time tax 's regulatory and compensatory tax and that it was not necessary to decide if the Act as it stood when it was challenged before the High Court? was beyond the legislative competence of the State Legislature. The respondents in the appeals and the petitioners in the special leave petitions urged that as even after the amendment no refund was available in respect of a vehicle which had been registered for more than 13 years? the effect of that was that no refund al all was available in respect. of the tax paid for a vehicle for the 14th and 15th years. The impugned levy of tax ceased to be compensatory or regulatory and was void under Entry 57 of List II and was violative of Article 301 of the Constitution. Disposing of the appeals and dismissing the special leave petitions the Court. HELD: The tax imposed on the motor vehicles or a class of motor cycles would not be valid unless it is compensatory or regulatory or does not have any nexus with the vehicles using the roads. In such a case. the levy would be Section of the said Act XIV of 1987 added sub section (IC) to provide for the levy of one time tax at 15 times the annual rate on all motor cycles in the State. The said provisions further provided that in the case of motor cycles owned by a company or other commercial organisation, the one time tax was to be levied at thrice the rate. The fact that the act, as at present, did not provide for refund in the 14th and 15th years, did no make the law outside the competence of the State Legislature. he concept PG NO 484 of "regulatory and compensatory" tax does no imply mathematical precision of quid pro quo. [489E] After the amendment, the Act came with in the constitutional requirements of making he one time tax a regulatory and compensatory tax. It was true that the Act has no provided for refund in the 14h and 15h years but that does no make he law out sides the competence of the State Legislature. It is no mathematical precision that is necessary nor can it be. there is in the provisions as amended, as amended, a discernible and an identifiable object behind the levy and a nexus between the subject and the object of the levy, [491E F] Two principles have to be emphasised, firstly, that the tax must be regulatory and compenstaory and secondly, there must be no discrimination. A taxation law cannot claim immunity from the equality clause in Article 14 of the Constitution, but in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerable wide discretion and latitude in the matter of classification for taxation purpose is permissible. The life of Motor cycles and tricycles normally exceeds 25 years. Non refund for certain period is no conclusive of the matter. Even if mathematical provision is no possible, it cannot be said that it is wholly unmathematical. The collection of ax for a period of 15 ears at one point of time is a convenient method enabling the owner o use he vehicle for more than 25 years without having to pay the tax periodically and pay the enhanced tax at may be levied during the 25 years of life of the vehicle. Regulatory and compensatory tax can be levied to the extent e State is required to pay for rendering the services. [491G;492A C] The Act, as at present, is not violative of Article 145 of the Constitution. The fact that the company owned vehicles are taxed that three times the rate payable by individuals, does not make the legislation violatvie of Article 14. Histrocially, the company owned vehicles are always been taxed at a rate higher that the individually owned vehicles. he legislature has he power to distribute tax burden in a flexible manner and the Court would no interfere with the same. It could not be said that there was differentiation without any basis and as such there was discrimination. [492E H] In view of the principles applicable to the taxation laws and various other factors, the Maharashtra Act as amended from time to time does not suffer from any vice of being not regulatory or compensatory taxation nor from the vice of being violative of Article 14 of the Constitution, and the challenge to the provisions of the Act as amended PG NO 485 after the judgment of the High Court could not be maintained. [494G ;495A] After the amendments afore mentioned the Act does no suffer from the vice mentioned in the judgment of the High Court . The appeals were allowed thus, and the challenge made in the special leave petitions was dismissed. [495] The taxes would be realised in accordance with the Act and the necessary adjustments would be made accordingly. [495C] Bolani Ors. Ltd. vs State of Orissa. ; ; G.K. Krishnan vs The State of Tamil Nadu & Anr., [1975] 2 S.C.R. 715; Malwa Bus Service (P) Ld. vs State of Punjab and Ors. , ; ' International ouris Corporation vs State of Haryana & Ors., ; ; Income tax Officer, shillong & Anr. vs N. Takim Roy Rymbai, etc., ; Mrs. Meenakshi & Ors. vs, State of Karnataka & Ors., AIR 1983 SC 1283; Anant Mills Co. Ltd. vs State of Gujarat and Ors., [1975] 3 S>.C.R. 220; Khandige Sham Bhat & Ors. vs The Agricultural Income tax Officer; , and State of Karnataka vs K. Gopalakrishna Shenoy and Another, ; , refered to.

Appeal No. 316 of 1962. Appeal from the judgment and order dated January 2, 1959 of the Madhya Pradesh High Court (Indore Bench) at Indore in Civil Misc. Case No. 20 of 1955. M. C. Setalvad, G. section Pathak, B. Dutta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. B. Sen and I. N. Shroff, for the respondents. February 20, 1964. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the judgment of the Madhya Pradesh High Court. It raises the question of the validity of certain provisions of the Indore Industrial Tax Rules, 1947, (hereinafter referred to as the Tax Rules) and assessments made thereunder for the years 1940 to 1948. The appellant is a cotton mill and in 1927 a tax was imposed on cotton mills in Indore in Holkar State by the then Ruler in respect of profits, gains and income of such mills. This was done under the Tax Rules promulgated by the Ruler of Indore. The procedure under 860 the Tax Rules provided for a board of assessing officers. The orders of the board were open to appeal to the Member in charge of Commerce and Industry Department. There after a second appeal was provided to the Government. Rule 17 of the Tax Rules further provided that the power of mak ing rules was vested in the Government and such power shall. except on the first occasion of exercise thereof, be subject to the condition of previous publication. Rule 18 provided that Rules made under r. 17 shall be published in the State Gazette and thereafter shall have the force of law. Rule 19 provided that the Member in charge of Commerce and Industry Department shall have power to make subsidiary rules not inconsistent with the Tax Rules. On May 28, 1948, the Holkar State merged to form the State of Madhya Bharat. On July 19, 1948, the State of Madhya Bharat acceded to India. Ordinance No. 1 of 1948 was promulgated by the Rajpramukh of the new State of Madhya Bharat to provide for the peace and good government of the State. This Ordinance was superseded by Act 1 of 1948 which came into force on December 13, 1948. Section 4 of the Act provided for the continuance of the existing laws of any covenanting States or of any State which merged in the State of Madhya Bharat until repealed or amended under the provisions of the Act. Section 5 of the Act provided that the Government may by notification published in the Government Gazette make regulations for the peace and good government of all the territories which had already been included in the new State or which may be included in it under the provisions of section 3 of the Act. Such regulations were to have the force of law unless they were repugnant to any Act or law or Ordinance made by the Rajpramukh, in which case to the extent of their repugnancy they would be void. Further it was provided that such regulations may repeal or amend any law already in force in any State before its administration was taken over or before it was, as the case may be, merged in the new State. Finally the section provided that the right of the Rajpramukh to make Ordinances for the peace and good government of the new State or of the States which may become merged in the said State would remain unaffected In view of the merger of the Holkar State into the State of Madhya Bharat, some of the provisions of the Tax Rules 861 had to be changed to bring them into line with the new set up. Consequently, on December 28, 1949, the Government of Madhya Bharat issued a notification under r. 18 of the Tax Rules purporting to make rules under r. 17 thereof. These rules made certain amendments in the Tax Rules. It is not necessary to refer to all the amendments as we are concerned here only with three amendments. The first amendment was that instead of the board making the assessment. the assessment was to be made by an assessing officer. The second amendment was that the appeal from the assessing officer was to be heard by an officer appointed from time to time by the Minister in charge of the Finance Department in place of the Member in charge of Commerce and Industry Department. The third amendment was with respect to second appeals. The amendment provided that instead of the Government hearing second appeals which under the old provision lay both on facts and law, second appeals there after were to be heard on a point of law by the High Court. Then came the Constitution of India on January 26, 1950 and the State of Madhya Bharat became one of Part B States. In the Finance Act No, 25 of 1950, which came into force from April 1, 1950 and applied to Madhya Bharat also, a provision was made that any law relating to income tax or super tax or tax on profits of business in any part B State shall cease to have elect except for the purpose of levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purpose of assessment under the Indian Income Tax Act, No. XI of 1922 for the year ending on March 31, 1951 or for any subsequent year or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before March 31, 1949. The effect of this was that the Tax Rules came to be repealed from after the accounting year ending on March 31, 1949. and assessment could only be made under the Tax Rules upto the end of the accounting period ending on or before March 31, 1949. A further provision was also made in the Finance Act, 1950, that any reference in any such law to an officer, authority, tribunal or court shall be construed as a reference to the corresponding officer, authority, tribunal or court appointed or constituted under the Income Tax Act. The result of this provision was that even the assessments 862 for the years previous to the accounting year ending on March 31, 1949 could only be made by the corresponding authorities under the Income Tax Act, and the appeals would be to the corresponding authorities under the Income Tax Act; no levy and assessment could be made by the authorities under the repealed law and no appeal would lie to the autho rities or court under that law. It seems however that this provision of the Finance Act as to the authorities competent to make assessments was lost sight of with the result that assessments were made for the years in dispute in the present appeal which are all before the accounting year ending on March 31, 1949, by the authorities under the Tax Rules, as they were before their repeal. Consequently when this mistake was discovered, Parliament passed the Madhya Bharat Taxes on Income (Validation) Act, No. 38 of 1954 (hereinafter referred to as the Validating Act), section 3 of which provided that " notwithstanding anything contained in the first proviso to sub section (1) of section 13 of the Finance Act, all proceedings taken, assessments made and other acts and things done (including orders made) by or before any officer, authority, tribunal or court acting or purporting to act under the relevant Madhya Bharat law in connection with the levy, assessment and collection of any tax due, under any such law in respect of the relevant period shall be deemed always to have been valid and shall not be called in question on the ground only that such proceedings were not taken, assessments were not made or acts or things were not done by or before the corresponding officer, authority, tribunal or court referred to in the said proviso. " Section 4 of the Validating Act further provided that "if immediately before the commencement of this Act, any proceedings of the nature referred to in section 3 are pending before any officer, authority, tribunal or court acting or purporting to act under the relevant Madhya Bharat law, such proceedings may, notwith standing anything contained in the first proviso to sub section (1) of section 13 of the Finance Act, be continued and completed in accordance with the provisions of the re levant Madhya Bharat law, and the provisions of the said proviso shall not apply, and shall be deemed never to have applied, in relation to any such proceedings. " What had happened in the present case and in some other cases relat ing to laws which corresponded to the Indian Income tax 863 Act was that the authorities under the Tax Rules made assessments in spite of the provisions in the Finance Act by which such assessments should thereafter have been made by the corresponding authorities under the Indian Income Tax Act, state and that is why the Validating Act had to be passed. The appellant challenged the validity of the assessments made against it under the Tax Rules by a writ petition filed in the Madhya Bharat High Court in 1955, on the following grounds: (1) The amendments of the Tax Rules on December 28, 1949 were invalid as such amendments could not be made under r. 17 of the Tax Rules, as was purported to be done. (2) Even if the amendments made on December 28, 1949 were good, they could not have retroactive effect and could not take away the vested right of appeal. (3) As after the Finance Act, 1950, assessments were made by the old officers appointed under the Tax Rules and not by the corresponding officers under the Indian Income Tax Act, the assessments were invalid and the Validating Act could not validate them (firstly) because the Validating Act itself was discriminatory and was hit by article 14 and (secondly) because in any case it did not apply to the present assessments. The High Court repelled all the contentions raised on behalf of the appellant and dismissed the writ petition. Thereupon the appellant applied to the High Court for a certificate of fitness, which was granted; and that is how the appeal has come up before us. We propose to deal with the points raised in the order in which they have been set out above. (1): The first question is about the validity of the amendments made in the Tax Rules on December 28, 1949. It is true that the notification by which amendments were made purports to have been published under r. 18 of the Tax Rules read with r. 17. The argument on behalf of the appellant 864 is that r. 17 of the Tax Rules must be treated on a par with provisions in a statute which provide for framing of rules, and these rules are subordinate legislation made for carrying out the purposes of the statute, and the power to frame such rules does not include the power to modify the parent law under which the rules have to be framed. We do not think it necessary for present purposes to consider this argument, for we are of opinion that the amendments which were made in the Tax Rules on December 28, 1949 can be justified on the basis of Act 1 of 1948, which was passed on December 13, 1948 by the Rajpramukh. That Act, as already indicated, provided by section 5 that the Government, by notification published in the Government gazette, may make regulations for the peace and good government of all the territories which had been included in the State of Madhya Bharat or which may be included in it under the provisions of section 3 of the Act. It also provided for the repeal or amendment by regulation of any law already in force in any State before its administration was taken over or before it was. as the case may be, merged in the United States. The Government had therefore the power to amend the Tax Rules under section 5(1) read with section 5 (3) of Act 1 of 1948. The notification of December 28, 1949 by which the amendments were made was published in the gazette of the Madhya Bharat State and the amendments were made by the Government. It is true that in the opening part of the notification it is said that the amendments were made under r. 17 of the Tax Rules; but that in our opinion would not conclude the matter, for if the Government had the power to make amendments under Act 1 of 1948, the amendments in the Rules could be justified under that power in spite of the wrong words used in the opening part of the notification of December 28, 1949. It is well settled that merely a wrong reference to the power under which certain actions are taken by Government would not per se vitiate the actions done if they can be justified under some other power under which the Government could lawfully do these acts. It is quite clear that the Government had the power under section 5 (1) and (3) of Act 1 of 1948 to amend the Tax Rules, for that was a law in force in one of the merged States. The only mistake that the Government made was that in the opening port of the notification section 5 of the Act was not referred to and the noti 865 fication did not specify that the Government was making a regulation under Act 1 of 1948. But that in our opinion would make no difference to the validity of the amendments if the amendments could be validly made under section 5 of Act J of 1948. It is not disputed that the amendments could be validly made under section 5 of Act 1 of 1948. We are therefore of opinion that the mere mistake in the opening part of the notification in reciting the wrong source of power does not affect the validity of the amendments made. It is urged that the Government knew that it could only make regulations under section 5 and it had made regulations under section 5 of Act 1 of 1948 in certain cases. Even if that be so, there can in our opinion be no doubt about the validity of the amendments made if the Government had power to make them, even though there was a mistake in the opening part of the notification publishing the amendments. All that section 5 of Act 1 of 1948 requires is the, publication of the regulation made thereunder and its being made by Government; and that has been complied with in this case. There is no other formality required for making a regulation and we are them fore of opinion that even though there was a mistake in the opening part of the notification of December 28, 1949, the amendments made in the Tax Rules can be upheld under section 5 of Act 1 of 1948 as a regulation. We therefore reject the contention under this head. (2): Then it is urged that even if the amendments to the Tax Rules are good, they could not affect vested rights of appeal provided under the old law before the amendments and therefore insofar as the amendments affect this vested right, they are of no effect. Now it is well settled that even a vested right of appeal can be taken away by express legislation or by legislation which, though it may not expressly repeal the vested right of appeal, has the effect of such repeal by necesary implication. We have already pointed out that in view of the coming into existence of the new State of Madhya Bharat, amendments to the Tax Rules had become necessary in order to bring them into line with the structure of the now State. The three main amendments made in the Tax Rules have already been set ' out by us. ' Learned counsel for the 134 159 S.C. 55 866 appellant does not attack two of them, namely, those relat ing to the assessment officer and the first appeal provided by the amendments. The attack is on the amendment of r. 13 of the Tax Rules providing for a second appeal. Under the old Rules, a second appeal lay to the Government both on fact and law; under the new law, it lay to the High Court only on a question of law. The quarrel is not with the forum of the second appeal; what is urged is that the new rule does not allow a second appeal on a question of fact while the old rule did. That is undoubtedly so. But con sidering the set up in which the amendments had to be made, it seems to us that even if the new rule cannot be read as an express provision taking away the right of second appeal on facts, it must in the circumstances be held that it does take away that right by necessary intendment. The new rule provided for a second appeal like the old rule but confined it to a question of law. The necessary implication of the new rule therefore was that though a second appeal will con tinue to lie as before its scope was cut down only to questions of law. We are therefore of opinion that though the right of second appeal on facts is taken away by the new rule 13 inserted in the Tax Rules, such right is taken away by legislation by necessary intendment. In the circumstances we are of opinion that the right of second appeal after the amendment must be confined in all cases by necessary intendment to questions of law only. The contention under this head also fails. (3): Coming now to the last point with respect to the Validating Act, we have not been able to understand how the Validating Act can be said to be discriminatory in nature. A Validating Act is passed only when certain things have been done which require validation. This is exactly what the present Validating Act has done and we fail to see on what grounds it can be said to be discriminatory. Even when the Finance Act of 1950 was passed it would have been open to Parliament to leave the old assessments to be carried on under the old procedure and by officers appointed under the old law and such action could not be called discriminatory. for the simple reason that the old assessments 867 stand on a different footing from new assessments after the new law comes into force. It is true that Parliament provided otherwise in this case and the Finance Act of 1950 said that the old assessments would be carried on by the corres ponding officers under the Indian Income Tax Act, By mistake however that provision was overlooked and the old assessments were made by the old officers under the old law. All that Parliament did by the Validating Act was to allow the old assessments to be made under the procedure provided under the old law and we can see no discrimination in the Validating Act on account of this fact. We are therefore of opinion that the Validating Act is not hit by article 14. Further we have not been able to understand how the valida tion is of no effect so far as the present cases are concerned. The present cases are with reference to years 1940 48, that is before the accounting year ending on March 31, 1949. The assessments in these cases were carried on by the old officers under the old law and the Validating Act specifically validates such assessments. In these Circumstances we have not been able to understand how it can be said that these assessments have not been validated by the Validating Act. The contention under this head must therefore also fail. The appeal fails and is hereby dismissed with costs. Appeal dismissed.

The appellant, a Cotton Mill in Indore in Holkar State was taxed in respect of profits, gains and income under the Indore Industrial Tax Rules, 1927 by the then Ruler of Indore. The Holkar State merged into the State of Madhya Bharat which acceded to India. The Rajpramukh of the new State promulgated an Ordinance No. 1 of 1948 to provide for peace and good Government of the State. This Ordinance was superseded by Act 1 of 1948. Thereafter on December 28, 1949, me Government issued a Notification under r. 18 of the Tax Rules purporting to make rules under r. 17 thereof. These rules made certain amendments in the Tax Rules. The State of Madhya Bharat became one of the Part B States on January 26, 1950. From April 1, 1950, Finance Act No. 25 of 1950 came into force and applied to Madhya Bharat also. According to its provision, the Tax Rules came to be repealed from after the accounting year ending on March 31, 1949 and assessments could only be made under the Tax Rules upto the end of the accounting period ending on or before March 31, 1949. It further provided that even the assessments for the years previous to the accounting year ending on March 31, 1949 could only be made by the corresponding authorities under the Income tax Act, and that appeals would lie to the corresponding authorities under the Income tax Act; no levy and assessment could be made by the authorities under the repealed law and no appeal would lie to the authorities or Court under that law. This provision as to the authorities competent to make assessments was lost sight of with the result that assessments were made for the years in dispute which were all before the accounting year ending on March 31, 1949 by the authorities under the Tax Rules, as they were before their repeal. When this mistake was discovered, Parliament passed the Madhya Bharat Taxes on Income (Validation) Act, No. 38 of 1954. The appellant then challenged the validity of the assessments under the Tax Rules, on the grounds: (1) that the amendments of the Tax Rules on December 28, 1949 were invalid as such amendments could not be made under r. 17 of the Tax Rules, as was purported to be done; (2) even if the amendments were good, they could not have retroactive effect and could not take away the vested right of appeal; (3) as after the Finance Act, 1950, assessments were made by the old officers appointed tinder the Tax Rules and not by the corresponding officers under the Income tax Act, the assessments were invalid and the Validating Act could not validate them because, (i) the Validating Act itself was discriminatory and was hit by article 14, and (ii) because in any case it did not apply to the present assessments. The High Court repelled all these contentions and dismissed the writ petition. On appeal by certificate this Court, Held: (i) The amendments which were made in the Tax Rules on December 28, 1948, could be justified on the basis of Act 1 of 1948. All that section 5 of Act 1 of 1948 requires is the publication of the 859 regulation made thereunder and their being made by Government, and that has been complied with in this case. There is no other formality required for making regulations and therefore, even though there was a mistake in the opening part of the Notification of December 28, 1949, the amendments made in the Tax Rules can be upheld under section 5 of Act 1 of 1948 as regulations. (ii) Even a vested right of appeal can be taken away by express legislation or by legislation which, though it may not expressly repeal the vested right of appeal, has the effect of such repeal by necessary implication. Though the right of second appeal on facts is taken away by the new rule 13 inserted in the Tax Rules, such right is taken away by legislation by necessary intendment. Therefore, the right of second appeal after the amendment must be confined in all cases by necessary intendment to questions of law only. (iii) The Validating Act is not hit by article 14. The present cases are with reference to years 1940 48, that is before the accounting year ending on March 31, 1949. The assessments in these cases were carried on by the old officers under the old law and the Validating Act specifically validates such assessments. In these circumstances it cannot be said that these assessments have not been validated by the Validating Act.

l Appeals Nos. 181 and 181 A of 1955. Appeals from the judgment and decree dated September 30, 1952, of the former Nagpur High Court in Second Appeals Nos. 699 and 700 of 1946, arising out of the judgment and decree dated February 21, 1946, of the court of First Additional District Judge, Nagpur, in Civil Appeals Nos. 22 A and 23 A of 1946, against the judgment and decree dated January 2, 1945, of the Court of Second Subordinate Judge, Nagpur, in Civil Suit No. 143 A of 1944. H. J. Umrigar, Ratnaparkhi A. O and Shankar Anand Zinj arde,for the appellants. W. section Barlingay and B. H. Dhebar, for the respondent. February 2. The Judgment of Jafer Imam and section K. Das, JJ., was delivered by section K. Das, J. Kapur, J., delivered a separate judgment. section K. DAS, J. These two appeals arise out of a litigation which has had a chequered career in the courts below. The short facts are these. The suit out of which the appeals arise was instituted on January 13, 1941, but the plaint was amended on May 4, 1942. The amended plaint was to the effect that in or about the year 1905 the defendant, the then Provincial Government of the Central Provinces and Berar, Nagpur, " opened up " an area known as the Craddock Town Area which was originally called the Sitabuldi Extension Area or Dhantoli Area. Due to the scarcity of residential accommodation in the city of Nagpur, the then Provincial Government along with some prominent members of the Nagpur Municipal Committee devised a scheme to extend residential accommodation by acquiring agricultural land and making it available for residential purposes. With that object in view, the area in question was acquired and building sites of the average size of about 10,000 sq. each were carved out. These were leased out on a premium of Rs. 350 and an annual rent of Rs. 3 8 0 each. The indenture of lease in each case contained a clause to the following effect: 183 " III. And the lessor does further covenant that he will at the end of the term of 30 years hereby granted and so on from time to time thereafter at the end of each successive further term of years as shall be granted at the request of the lessee execute to him a renewed lease of the land hereby demised for the term of 30 years; Provided that the rent of the land hereby demised shall be subject to such fair and equitable enhancement as the lessor shall determine on the grant of every renewal: Provided also that every such renewed lease of the land shall contain such of the covenants, provisions and conditions in these presents contained as shall be applicable and shall always contain a covenant for further renewal of the lease. " One of the leases was executed on May 24, 1909, and some other leases near about that year. By the year 1939 the first 30 years ' period of some of the leases came to an end. The original plaintiffs, who were two in number and who sued in their individual right as also representing the members of an association known as the Craddock Town Plot holders Association alleged that on the expiry of the terms of the leases in question, during which period some of the lessees had built houses on the leasehold property, the then Provincial Government proposed an enhancement of Rs. 21 14 0 from Rs. 3 8 0 as annual rent and also the insertion of some new terms in the renewed deeds of lease. The plaintiffs, on the contrary, said that Rs. 7 per plot was the fair and equitable enhancement. Various representations to the relevant authorities having proved unavailing, the plaintiffs instituted the suit in which they prayed (a) that the enhancement of rent from Rs. 3 8 0 to Rs. 21 14 0 per plot was not fair and equitable within the meaning of el. III of the deed of lease; (b) that the offer of Rs. 7 as annual rent made by the association was fair and reasonable; (c) that the defendant do insert in the renewed deeds of lease only such conditions as were to be found in the original deed and not to add to them to the detriment of the lessees ' interest; and (d) that in the event of this Court not agreeing that 184 Rs. 7 was a fair and, reasonable rent, a fair and equitable rent should be fixed by it. The suit was contested by the defendant on several grounds, with most of Which we are not now concerned. The learned Subordinate Judge of Nagpur, who dealt with the suit in the first instance, took up certain preliminary issues for decision and by a judgment dated April 13, 1942, he disposed of those preliminary issues. One such issue material for our purpose was in these terms: ,In case of dispute as to what is fair and equitable rent, has the civil court no right to, determine what is fair rent?" On this preliminary issue, he found " that under the terms of cl. III of the indenture of lease, the defendant was entitled to fix a fair and equitable rent; but the civil court has jurisdiction to enquire whether the rent fixed by the defendant is fair and equitable within the meaning of cl. III ". We need not refer to the other preliminary issues on which the learned Subordinate Judge gave his decision, because those issues no longer survive. On the disposal of the aforesaid preliminary issue, the plaint was amended and some more lessees were added, the 30 years ' period of whose leases had also expired ; therefore the position was that the plaintiffs were those lessees, the 30 years ' period of whose leases had expired and as respects the renewal of whose leases the defendant had proposed an enhancement of Rs. 21 14 0. The defendant claimed that it had been very reasonable in fixing the enhanced rent and it further claimed the right of withdrawing the offer of Rs. 21 14 0 and of making a fresh demand at a much higher rent if the lessees did not agree to the terms originally proposed by the defendant. The defendant further denied that the offer of Rs. 7, that is, twice the original rent, made by the lessees was a reasonable and fair enhancement. After the disposal of the preliminary issues the learned Subordinate Judge proceeded to try the suit on merits and on January 2, 1945, he found on issue No. 4 that Rs. 14 per year would be the fair and equitable enhanced rent for each plot of about 10,000 sq. and he fixed that rent for the next term of 30 years to 185 which the lessees were entitled under cl. III; he further directed the grant of a rebate of 25 per cent. to those lessees who agreed to a renewal for a term ending in 1948. From the decision of the learned Subordinate Judge two appeals, one by the plaintiffs, and the other by the defendant, were taken to the District Judge and they were heard by the Additional District Judge of Nagpur, who by his Judgment dated February 21, 1946, affirmed the decision of the learned Subordinate Judge that under cl. III of the indenture of lease it was open to the Subordinate Judge to determine what was the fair and equitable rent. The learned Additional District Judge, however, reversed the finding of the learned Subordinate Judge as to the quantum of the fair and equitable rent. He came to the conclusion that the enhancement of rent should not exceed Rs. 7, as any increase over that amount would not be a fair and equitable one within the meaning of cl. III of the indenture of lease. From the decision of the learned Additional District Judge, two appeals were taken to the then High Court of Judicature at Nagpur by the defendant Government. The appeals were first placed before a single Judge who directed that they should be heard by a Division Bench. The appeals were then heard by B. P. Sinha, C. J. (as he then was) and Mudholkar, J. The learned Chief Justice came to the conclusion that the suit must fail on the ground that the authority of the court had been invoked in a matter which really lay in contract and the civil court had no jurisdiction to determine the fair and equitable rent. Mudholkar, J., came to a contrary conclusion and held that the suit was maintainable and the courts below could determine the fair and equitable rent. On the question of what should be the fair and equitable rent, the learned Chief Justice gave no finding except saying that " the decision of the lower appellate, court on the question of assessment of fair and equitable rent was not satisfactory, because it had gone more by the rule of the thumb than upon the evidence adduced in the 24 186 case or upon any other sound basis. " Mudholkar, J., however, said that he saw no adequate ground for differing from the view taken by the lower appellate court with regard to the quantum of fair and equitable rent. On this difference of opinion between the learned Chief Justice and Mudholkar, J., the case was referred to a third Judge, namely, Hemeon, J., who agreed with the view of the learned Chief Justice that, on a proper construction of cl. III of the indenture of lease, the civil court had no jurisdiction to determine the fair and equitable rent and the parties had consciously and deliberately stipulated to abide by the lessor 's fixation of a fair and equitable enhancement of rent; and in that view of the matter, he expressed no opinion as to what should be the fair and equitable rent. In accordance with the opinion of the majority of Judges, the appeals in the High Court were allowed and the suit was dismissed with costs. The plaintiffs, who are the appellants here, then asked for a certificate of fitness under article 133(1)(c) of the Constitution of India. The High Court granted the necessary certificate by an order dated October 23, 1953, and the present appeals have been filed in pursuance of that certificate. The area in question being now within the State of Bombay, the State of Bombay has been substituted as the respondent before us. The principal question before us is one of construction of el. III of the indenture of lease. On behalf of the appellants it has been argued that the construction put upon the clause by the majority of Judges in the High Court is not correct inasmuch as it gives no effect to the words " fair and equitable enhancement " occurring therein. On behalf of the respondent, it has been submitted that the expression " subject to such fair and equitable enhancement as the lessor shall determine " is tantamount to saying " subject to such enhancement as the lessor shall determine to be fair and equitable " ; in other words, the argument of learned counsel for the respondent is that the parties had deliberately chosen to abide by whatever was determined to be fair and equitable enhancement by 187 the lessor. Mudholkar, J., had proceeded on the footing that the primary intention of the parties was that the enhancement must be fair and equitable and the adjectival clause ,as the lessor shall determine " following the word I enhancement ' being subordinate to the primary intention of the parties could be ignored. Learned counsel for the respondent has very strongly submitted that this view is not correct. We think that the clause should be read as a whole and every effort should be made to give effect to all the words used therein. The relevant portion of the clause states " such fair and equitable enhancement as the lessor shall determine ". If the construction is that whatever the lessor determines as fair and equitable enhancement must be treated as binding on the lessee, then the words 'fair and equitable ' are not given the meaning and sense which they have according to the ordinary acceptation of those words. I Fair ' and I equitable ' mean fair and equitable in fact, and not what the lessor subjectively considered to be fair and equitable. The words I fair ' and 'equitable ' both mean I just or unbiased ' (see the Concise Oxford Dictionary, 4th Edn., p. 426 and p. 402). If the intention was to leave the enhancement to the subjective determination of the lessor, the clause would have more aptly said 'such enhancement as the lessor shall determine '. We consider that the words I fair and equitable ' must be given their due meaning and proper effect. The question then asked is what meaning is to be given to the words 'such. as the lessor shall determine '. It is indeed true that these words constitute an adjectival clause to the expression ' fair and equitable enhancement ', but we consider that the meaning of the adjectival clause is merely this: the lessor must first determine what it considers to be fair and equitable enhancement; but if in fact it is not so, it is open to the lessee to ask the Court to determine what is fair and equitable enhancement. We do not think that on a proper construction of the clause, the intention was to oust the jurisdiction of the Court and make the determination of the enhancement by the lessor final and binding on the lessee. We think that 188 the conclusion at which Mudholkar, J., arrived on this point was correct, though not exactly for the reasons given by him. If the construction stated above is the correct con struction, then no further difficulty is presented by cl. 111. The learned Judges of the High Court unanimously expressed the view that the lease 'Was not void for uncertainty, and in that view we concur. There is authority in support of the view that a covenant to settle land I at a proper rate ' or I upon such terms and conditions as should be judged reasonable ' is not void for uncertainty (see The New Beerbhoom Coal Company Limited vs Boloram Mahata and others (1) and Secretary of State, for India in Council vs Volkart Brothers (2)). In the former case, Sir Barnes Peacock who delivered the judgment of their Lordships said : " The High Court affirmed the decision, but not for reasons which their Lordships consider to be correct. They affirmed it upon the ground that it was impossible to determine what was a reasonable rate. Their Lordships cannot think that in the present case the Court, upon a proper inquiry, would have been unable to determine it. There might have been considerable difficulty in fixing the rate; but difficulties often occur in determining what is a reasonable price or a reasonable rate, or in fixing the amount of damages which a man has sustained under particular circumstances. These are difficulties which the Court is bound to overcome. " Our attention has been drawn to some English decisions in which the point arose if a contract which appoints a way of determining the price can be specifically enforced. There are two lines of decisions. In Milnes V. Grey (3) the contract provided that the price shall be valued by two different persons to be nominated and if they happened to disagree then those two persons shall choose a third person whose determination shall be final. The question was whether such a contract could be specifically performed and the (1) (1880) L.R. 7 I.A. 107. (2) Mad. (3) (18O7) ; ; 189 answer given by the Master of the Rolls can be best put in his own words: " The more I have considered this case, the more I am satisfied, that, independently of all other objections, there is no such agreement between the parties, as can be carried into execution. The only agreement, into which the Defendant entered, was to purchase at a price, ' to be ascertained in a specified mode. No price having ever been fixed in that mode, the parties have not agreed upon any price. Where then is the complete and concluded contract, which this Court is called upon to execute ? " In Taylor vs Brewer (1) a claim to compensation was founded on the resolution of a committee which provided that" such remuneration be made as should be deemed right ". It was held that the engagement was merely an engagement of honour and no claim could be made on it. An example of the other line of decisions is furnished by Gourlay vs The Duke of Somerset (2). In that case the agreement provided for " all such usual and proper conditions, reservations, and agreements, as shall be judged reasonable and proper by John Gale, land surveyor, and in case of his death, by some other proper and competent person to be mutually agreed upon by the said parties ". The plaintiff came to court and the question arose whether the reference to settle the lease to be made by the defendant to the plaintiff should be to the Master or to Mr. Gale, the defendant contending that the court decreeing specific performance will take the whole subject to itself and determine by its own officer, not by a particular individual, what are usual and proper covenants. Sir William Grant, Master of the Rolls, said: " When the agreement is, that the price of the estate shall be fixed by arbitrators, and they do not fix it, there is no contract as the price is of the essence of a contract of sale, and the Court cannot make a contract, where there is none; but, where the Court has determined, that the agreement is binding and (1) ; ; (2) ; ; 190 concluded and such as ought to be executed, it does not require foreign aid to carry the details into execution. Gale 's agency is not of the essence of this con tract. . If the parties had gone to Gale, and got him to settle a lease, and one of them had objected to the covenants as improper, and the Bill had been filed by the other, the Court would have inspected the lease; and if it were found unreasonable, would not have decreed an execution of the agreement. " We consider that the present case comes within the rule laid down in Gourlay vs The Duke of Somerset (1). Learned counsel for the respondent placed strong reliance on Collier vs Mason (2 ). That was a case in which the defendant had agreed to purchase a property at a valuation to be made by AB; the Court, though it considered AB 's valuation very high and perhaps exorbitant, 'decreed specific performance, there appearing neither fraud, mistake or miscarriage. The case was decided on the footing that the contract provided that the property shall be purchased at such a price or sum as should be fixed by reference to AB, and it was pointed out that there being no evidence of fraud, mistake or miscarriage the parties were bound by the contract they had made. There was no question in that case of the court stepping in, under the terms of the contract, to determine what was fair and reasonable. Learned counsel for the respondent also relied on Tekchand Kapurchand vs Mt. Birzabai (3). The principle laid down therein was that a contract binds the parties to it and their representatives and the court 's power to interfere with contracts is limited to such cases as fraud, undue influence or mistake and relief against penalty or forfeiture. Indeed, we agree that if the contract in the present case was that whatever the lessor determined as the enhanced rent would be binding on the parties, then the court has no power to interfere with that contract unless it is vitiated by fraud, undue influence, mistake, etc. If, however, the proper construction of el. III of the contract is what (1) ; ; (2) ; ; (3) A.I.R. 1942 Nag. 191 we have held it to be, then the contract itself provides that the enhanced rent though determined by the lessor in the first instance, must be fair and equitable. On such a construction the determination of the enhancement by the lessor would not be final and it would be open to the court to determine what is fair and equitable enhancement. We say this with respect, but the Patna decisions (Secretary of State for India in Council vs Nistarini Annie Mitter (1) and Secretary of State vs Babu Rajendra Prasad (2)), referred to by the learned Chief Justice in his judgment are not in point. Those decisions were not concerned with interpreting a clause in the agreement like the one before us and it was rightly held that in the absence of a contract between the parties, the court had no power to impose upon the parties a bargain not of their own making. For the reasons given above, we hold that the decision of the majority of the learned Judges of the High Court with regard to the interpretation of cl. III of the indenture of lease is not correct and these appeals must go back for a fresh hearing by the High Court in accordance with law for determination of what should be the fair and equitable enhancement. On that point there was no concluded finding by the majority of the learned Judges of the High Court, but learned counsel for the appellants submitted that the finding of the learned Additional District Judge on the quantum of fair and equitable enhancement was a finding of fact and therefore binding in second appeal. At this stage we express no opinion on such a submission, nor do we express any opinion whether the courts below or any of them have gone wrong in principle in determining what should be the fair and equitable enhancement and whether on merits it should be Rs. 7 or Rs. 14 or Rs. 21 14 0, or even a higher sum. All these points must be considered afresh by the High Court. There is a further point which must also be dealt with in the High Court. The learned Subordinate Judge decided on issue No. 7 with regard to the conditions for a renewal of the lease that the Government (8) Pat. 446. (9) A.I.R. 1937 Pat. 192 were not entitled to make any alterations in the clauses relating to re entry and notice of demand as contained in cl. II of the original lease. The learned Addl. District Judge said: " As regards the new form of lease, it is clear that the clause regarding building would be deleted if it is found to be superfluous or redundant. While that in respect of right of lessor to enter on the land without a demand of ground rent (in case of failure to pay it on the appointed date) it is not necessary to interfere as it would amount to making a contract for the parties. It is better to leave the matter to the parties and their legal advisers. " Whether the view of the learned Subordinate Judge or of the District Judge is correct or not was not considered by the High Court and as the appeals are going back on remand this point should also be dealt with by the High Court. Accordingly, we allow the appeals and set aside the judgment and decree of the High Court dated September 30, 1952. The appeals must go back for a fresh hearing by the High Court in accordance with law and in the light of the observations made above. In the peculiar circumstances of this case, there will be no order for costs of the hearing of the appeals in this Court. Costs incurred in the two courts below and costs incurred in the High Court, both before and after remand, will be dealt with by the High Court when finally disposing of the appeals. KAPUR, J. I regret I am unable to agree in the proposed judgment that it is open to the Court in the circumstances of this case to go into the question of the valuation and to determine as to what, in its opinion would be fair and equitable enhancement in rent and to interfere with the enhancement as determined by the lessor under the terms of the indenture of lease executed on May 24, 1909. The original lease was for a term of 30 years with a provision for renewal for another 30 years with the proviso that the rent of the land demised was " subject to such fair and equitable enhancement as the lessor shall determine 193 The facts are set out in the judgment of my learned brother, section K. Das, J., and it is not necessary to repeat them. Plots of land measuring about 10,000 sq. ft. were given on lease by the Government to the appellants and others, for which the premium to be paid was Rs. 350 and the rent Rs. 3 8 0 per annum or Re. 1 per cent. of the premium. Lease deeds were executed in 1909 under clause III of which the lessor determined the enhanced rent at Rs. 21 14 0 and thus raised it from Rs. 3 8 0 per plot to Rs. 21 14 0. The appellants brought a suit for declaration that the enhancement proposed was excessive and the fair and equitable rent should be Rs. 7 per plot and if the Court was of the opinion that Rs. 7 was not a fair and equitable rent then it should fix such sum as it considered fair and equitable. The respondent pleaded that such a suit was incompetent. The question for decision is what is the effect of using the adjectival words " fair and equitable ". For the appellants it was argued that because in the lease deed the enhancement contemplated was qualified by the words " fair and equitable " the determination became clothed with a qualification which made it subject to judicial review and determination because it was for the Court to say whether the determined enhancement conformed to the standard prescribed in the disputed clause or not. The respondent contended on the other hand that the rule applicable to determinations by valuers is that it is conclusive and cannot be overhauled except upon proof of fraud and imposition of gross misconduct. Thus according to the submission of the appellant the clause in dispute means such enhancement as the lessor shall determine and which determination shall, in the opinion of the Court, be fair and equitable and according to the respondent it means that the amount of enhancement shall be fair and equitable but what is fair and equitable shall be determined by the lessor, such determination being conclusive. The appellants do not contend that the lessor is not a valuer and that if the qualifying words " fair and equitable " had not been used then 25 194 the enhancement determined would not be conclusive but the contention is that by using these words the quality and the quantity of enhancement is no longer in the sole determination of the lessor but the final determination must be of the Court because otherwise any fanciful amount would have to be accepted as fair and equitable and that the parties intended that the lessor was not the final determiner of the quality and quantity of enhancement and his determination was not conclusive but the lessee if dissatisfied could get the matter reviewed by the Court. In my view the correct interpretation to be put on this clause of the lease deed is what is contended for by the respondent. The lessor was given the authority to determine the enhancement but such enhancement was to be fair and equitable and what would be fair and equitable in any particular case was also to be determined by the lessor. The lease deed entered into between the parties is dated May 24, 1909. In the first clause are given the usual obligations of the lessee as to payment of rent, the purpose of the building to be constructed, the period in which it was to be completed, the design of the building and keeping it in proper condition. In the second clause of the agreement the lessor covenanted peaceful possession subject to the right of the lessor to recover rent as arrears of land revenue and other remedies for non observance of the obligations contained in the first clause with a provision for re entry upon failure of certain conditions. I In the third clause the lessor covenanted for grant of lease for further periods of 30 years at the request of the lessee with the following proviso : " Provided that the rent of the land hereby demised shall be subject to such fair and equitable enhancement as the lessor shall determine on the grant of every renewal ". This is the disputed clause. Now it appears that this further covenant was for the benefit of the lessee and the reservations made are couched in such language which left the discretion in regard to enhancement of rent to the lessor. What the enhancement was to be and what would be fair and equitable was left to the 195 determination of the lessor. It is not an unusual provision in a lease for a long term of years with provision for renewal to leave the question of rent to be determined by the lessor or an outside valuer and it s would not, in my respectful opinion, be a correct interpretation to say that the enhancement by a valuer would be unchallengeable if the adjectival words " fair and equitable " are not used but would be subject to court 's review if these words are employed. That is going contrary to the very notion of valuations and their legal incidence. The extent of the power of courts over valuations by valuers has been stated in text books and in certain decided cases. In Williston on Contracts, Vol. 3, section 802, at p. 2252 the law is stated thus: " In the absence of fraud or mistake, the price fixed by aGreed valuers is conclusive upon the parties. Though an excessively large or an unreasonably small price involves some element of penalty or forfeiture, the possibility of this is not enough to overcome the express terms of the contract in the absence at least of fraud, gross mistake, or such arbitrary conduct as is outside what the parties could have reasonably contemplated ". And it is not a far step to say that in all cases of valuation the parties do contemplate a fair and equitable amount to be fixed or determined and not any price fanciful or otherwise. In Collier vs mason (1) the defendant agreed to purchase a property at a valuation to be made by a third party. The defendant repudiated the value as exorbitant and refused to complete his contract and the plaintiff vendor instituted a suit for specific performance. The Court held that the valuation was very high and perhaps exorbitant but it decreed specific performance of the contract as there appeared no fraud, mistake or miscarriage. It was said by the Master of the Rolls " It may have been improvident as between these parties to enter into a contract to buy and sell property at a price to be fixed by another person, but that cannot avoid the contract. (1) ; ; 196 Here the referee has fixed the price, which is said to be evidence of miscarriage, but this Court, upon the principle laid down by Lord Eldon, must act on that valuation, unless there be proof of some mistake, or some improper motive, I do not say a fraudulent one; as if the valuer had valued something not included, or had valued it on a wholly erroneous principle, or had desired to injure one of the parties to the contract ; or even, in the absence of any proof of any of these things, if the price were so excessive or so small as only to be explainable by reference to some such cause; in any one of these cases the Court would refuse to act on the valuation ". It does not appear that in that case the words "fair and equitable " were used but that is implied in every reference for valuation to be made by an agreed referee. He cannot act in a fanciful or a corrupt manner or with puerile motives nor can he make a valuation which be (toes not consider to be fair and equitable. In cases of transfer of property the form of contract to buy and sell may make a provision and very often such a provision is made that the price payable shall be that which a certain valuer shall fix. Such a requirement is an express condition or a condition implied in fact qualifying the obligation of the buyer to pay the price and such a contract cannot be performed unless the valuation first takes place. Such a condition is a necessary condition or an inherent condition. Williston on Contracts, Vol. 3, section 800 ; Firth vs Midland Railway Co. (1). In such contracts it must be assumed that the parties laid weight on the parti cular individuality of the valuer. Accordingly if the valuer dies or refuses to act the buyer cannot be compelled to pay the price. A similar condition is common in long term leases and in provisions for renewal of leases and where the parties choose to abide by the determination of a valuer and that valuation is not acceptable to one of the parties, Courts will not interfere, the only exception being fraud, mistake or misconduct. In Vickers vs Vickers (2) which was a suit for specific (1) , 112. (2) 197 performance of a contract enforcing an option of purchase where the stock was to be valued in the usual way by two valuers and one of the valuers was not allowed to proceed, it was held that there was no contract between the parties which the Court could specifically enforce. Sir W. Page Wood, V. C., said at p. 535: " If a nomination of that kind fails, or if the two persons named do not make their award, this Court has said there is no constat of the price; the contract is not a complete contract, and there is nothing on which it can act ". In Weekes vs Gallard (1) where a contract was entered into for the sale of certain property, the price to be fixed by two valuers who afterwards valued the property at inadequate price, it was held that in the abence of fraud or collusion on the part of the valuer, the buyer was entitled to specific performance of the contract. Lord Romilly said : " The court has really no discretion in the matter. The discretion of the court is bound, as Lord Ellenborough says, by fixed rules. In one case of this kind a house and furniture were valued at three times their value, and yet there was a decree for specific performance. The only defence to such a suit would be fraud or collusion ". A valuer may, in one sense, be called an arbitrator but not in the proper legal sense of the term. Per Lindley, L. J., In re Carus Wilson & Greene (2). But there is this difference between arbitration and valuation that the object of the former is to settle a dispute which has arisen and of the latter to avoid a dispute arising. The arbitrator is called in to settle judicially any matter in controversy between the parties and the valuer by the exercise of his knowledge and skill has to make a valuation the object being to prevent disputes from arising. A valuer like an arbitrator is required to act fairly and diligently. He cannot act in a fanciful or a perverse manner and his determination must be fair and equitable whether the authority given to him uses these words or not. But once a (1) (2) 198 valuation is properly made the valuation is conclusive as between the parties and the Court in the absence of fraud, mistake or collusion can no more go into whether it is fair and equitable than a Court can sit in appeal against the award of an arbitrator as to what would be fair amount of damages in a particular case of breach of contract. See also Emery vs Wase (1). The decision in Gourlay vs Somerset (Duke of) (2) was relied upon by the appellants in support of their case. That does not, in my opinion, deal with the matter now before us. There the suit was for specific performance of an agreement to grant a lease. One of the conditions of the contract was that the farm was to be let on conditions, reservations and agreements " as shall be judged reasonable and proper by John Gale . " The Court was of the opinion that Gale 's agency was not of the essence of the contract and that it could not be contended that the contract was to end if Gale refused to settle a lease. The Court said : " Suppose the reference is made to Gale ; is his decision liable to exception ? If it is, the decision with regard to the propriety of the lease will ultimately be that of the Court. If not, the Court may be carrying into execution a lease, which it may think extremely unreasonable and improper. If the parties had gone to Gale, and got him to settle a lease, and one of them had objected to the covenants as improper and the Bill had been filed by the other, the Court would have inspected the lease; and if it were found unreasonable, would not have decreed an execution of the agreement ". That was a case relating to covenants other than fixation of price. With regard to the valuation or fixation of price it was said that if an agreement was that the price of the estate would be fixed by arbitrators and they did not fix it there was no contract of sale as the contract as to the mode of fixing the price was of the essence of the contract of sale and the Court could not make a contract where there is none. Similarly it may be said that where the valuation is fixed by a valuer (1) , 847, 848 ; ; (2) ; ; 199 the court will hold it conclusive in the absence of fraud or mistake or misconduct. The Court will not enter into the propriety of the valuation made or substitute its own valuation in place of that determined by the valuer because that will not be an execution of the contract of the parties but making a contract for them. The Transfer of Property Act contains no provision by which the Court is empowered to fix rent of premises demised although by legislation in the case of agricultural holdings certain tribunals have been set up to make such determinations. The appellant relied on The New Beerbhoom Coal Company vs Boloram Mahata (1). The covenant between the parties was: Within that aforesaid mouzah we will not give a pottah, let give settlement to anybody. If you take possession according to your requirement of extra land over and above this pottah, and we shall settle any such lands with you at a proper rate ". A suit was brought by the lessees against the lessor to obtain specific performance to execute a permanent lease of a large area of land claiming benefit of the covenant above given and contended that the defendants were bound to let them the land whenever called upon to do so. The appellant company stated that they had negotiated with the lessor for lease of the adjoining land (not of land which they had agreed to lease) upon the terms that they were to pay Rs. 1 8 0 for waste land and Rs. 3 for cultivable land and the suit was for the grant of specific performance of the agreement by compelling the lessor to grant them the lease at those rates and if the Court would not order the lease at those rates then at such rates as the Court shall think reasonable. The trial Court held that apart from 51 bighas mentioned in the covenant the lessor could not be compelled to grant a lease for the remaining land of the mouzah. The High Court affirmed this decision but on the ground that it was impossible to determine what was the reasonable rate. Sir Barnes Peacock said: (1) (1880) L.R. 7 I.A. 107. 200 " Their Lordships cannot think that in the present case the court, upon a proper inquiry, would have been unable to determine it (proper rent). There might have been considerable difficulty in fixing the rate ; but difficulties often occur in determining what is a reasonable price or a reasonable rate, or in fixing the amount of damages which a man has sustained under particular circumstances. These are difficulties which the Court is bound to overcome ". These observations of the Privy Council are relied upon by the appellants to support the argument that it is open to the Court to determine what the reasonable rate would be. This was not a case where any question of valuation arose nor was it a case where a valuation made by a valuer was sought to be reviewed as not being proper and apart from the fact that the observations are mere obiter this case is no authority for saying that the determination of a valuer is subject to review by courts. Another case which the appellant relied upon was The Secretary of State for India vs Volkart Brothers (1). There, in a deed of lease granted for 99 years by the East India Company there was a clause for renewal for another like period on the lessee paying a sum of money and " upon such terms and conditions as should be judged reasonable ". The Secretary of State assigned a major portion of the holding to a third party and Volkart Brothers before the expiry of the original lease period tendered the due amount and asked for renewal of the lease which the Secretary of State refused to renew and sued to eject the lessees and the latter sued for specific performance of the covenant for renewal. It was held by a majority that the covenant was not unenforceable on account of uncertainty. Krishnan, J., was of the opinion that such a covenant was too vague and uncertain and unenforceable because the clauses to be inserted in the contract were themselves uncertain and the contract could not be enforced. Venkatasubba Rao, J., was of the opinion that if the parties would not agree to a reasonable rent the Court will intervene and fix it; The New Beerbhoom (1) Mad. 201 Coal Company vs Boloram Mahata (1) was relied upon. Courts Trotter, C. J., was also of the opinion that the covenant was not too vague to be enforced. But this again was a case not of interfering with the determination of a valuer but of specific performance of a contract of renewal and it was held that by taking evidence even a vague and indefinite covenant relating to renewal could be made definite. In my opinion, therefore, the Court cannot go into the question of correctness or otherwise of the determination of the lease and the appeal should therefore be dismissed with costs. By COURT. In view of the opinion of the majority, the appeals are allowed, setting aside the judgment and decree of the High Court dated September 30, 1952. No order as to costs of the hearing in this Court.

In 1909, for the purpose of residential accommodation, plots of land were given on lease by the Government to the appellants and others for which a premium of Rs. 350 and an annual rent of Rs. 3 8 0 for each plot had to be paid. Clause III of the deed of lease in each case provided: " And the lessor does further covenant that lie will at the end of the term Of 30 years hereby granted and so on from time to time thereafter at the end of each successive further term of years as shall be granted at the request of the lessee execute to him a renewed lease of the land hereby demised for the term Of 30 years: Provided that the rent of the land hereby demised shall be subject to such fair and equitable enhancement as the lessor shall determine on the grant of every renewal: Provided also that every such renewed lease of the land shall contain such of the covenants, provisions and conditions in these presents contained as shall be applicable and shall always contain a covenant for further renewal of the lease." 181 By the year 1939 the first 30 years ' period of some of the leases came to an end, and the Government sought to enhance the annual rent from Rs. 3 8 0 to Rs. 21 14 0 per plot and also to insert some new terms in the renewed deeds of lease. The appellants brought a suit inter alia for a declaration that the enhancement proposed was not, fair and equitable within the meaning of Clause III of the deed of lease, that the fair and equitable rent should be Rs. 7 per plot and that if the court was of the opinion that Rs. 7 was not a fair and equitable rent then it should fix such sum as it considered fair and equitable. The respondent pleaded that such a suit was incompetent. The question was whether the civil court had jurisdiction to enquire whether the enhancement of the rent determined by the lessor was fair and equitable within the meaning of cl. III of the deed of lease, and whether, in any case, the lease was void for un certainty. Held, (per jafer Imam and section K. Das, jj.), that the lease is not void for uncertainty; that the expression " fair and equitable " in the clause in question means fair and equitable in fact, and not what the lessor subjectively considered to be fair and equitable; and, that reading the clause as a whole and giving effect to all the words used therein, the meaning is that the lessor must first determine what it considers to be fair and equitable enhancement, but, if in fact it is not so, it is open to the lessee to ask the court to determine what is fair and equitable enhancement. Accordingly, the suit was maintainable. The rule laid down in Gourlay vs The Duke of Somerset, (18I5) ; ; , held applicable. The New Beerbhom Coal Company Limited V. Boloram Mahata and others, (1880) L.R. 7 I.A. 107 and Secretary of State for India in Council vs Volkart Brothers, Mad. 595, relied on. Collier vs Mason, ; ; and Tekchand Kapurchand vs Mt. Birzabai, A.I.R. 1942, Nag. 119, distinguished. Per Kapur, J. The correct interpretation to be put on cl. III of the deed of lease is that the lessor was given the authority to determine the enhancement of rent but such enhancement was to be fair and equitable and what would be fair and equitable in any particular case was also to be determined by the lessor. The rule applicable to the present case is that relating to valuation or fixation of prices that where the valuation is fixed by a valuer the court will hold it conclusive in the absence of fraud or mistake or misconduct and the court will not enter into the propriety of the valuation made or substitute its own valuation in place of that determined by the valuer because that will not be an execution of the contract of the parties but making a contract for them. Case law discussed.

Appeal No. 327 of 1958. Appeal from the judgment and decree dated March 6, 1956, of the Allahabad High Court in Civil Misc. Writ Petition No. 967 of 1953. WITH CIVIL APPEAL Nos. 363 to 369 of 1958. Appeals from the judgments and decrees dated February 1, 1957, of the Allahabad High Court in Civil Misc. Writ Petitions Nos. 51 (Lucknow Bench), 523, 524, 607, 632, 633 and 634 of 1955. G. section Pathak and S.P. Varma, for the appellant (In C. A. No. 327 of 1958). 424 C. B. Agarwala, G. C. Mathur and C. P. Lal, for respondents Nos. 3 to 4 (In C. A. No. 327 of 1958). H. N. Sanyal, Additional Solicitor General for, India, H. section Brar, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants (In C. As. 363 to 369 of 1958). C. B. Agarwala and. C. P. Lal, for respondent No. 1 (In C. AB. 363 to 369 of 1958). Bhawani Lal and Dharam Bhusan, for respondent No. 4 (In C. A. No. 369 of 1958). J. P. Goyal, for respondent No. 4 (In C. As. Nos. 366 and 368 of 1958). section C. Das in person, for respondent No. 4 (In C. A. No. 367 of 1958). March 17. The Judgment of the Court was delivered by WANCHOO, J. This group of appeals raises a question about the constitutionality of section 3 of the United Provinces , (U. P. XXVIII of 1947), (hereinafter referred to as the Act) and the validity of two general orders passed thereunder an March 15, 1951. The appellants are certain industrial concerns. There were disputes between them and their workmen which were referred for adjudication to industrial tribunals alleged to have, been set up under the general orders of March 15, 1951. Certain awards were passed which were taken in appeal by the present appellants to the Labour Appellate Tribunal and they failed there also. They then filed petitions under article 226 of the Constitution in the Allahabad High Court challenging the constitutionality of section 3 of the Act and the validity of the two general orders passed on March 15, 1951, by which industrial tribunals were set up. The High Court held that section 3 of the Act was constitutional. It however held that the two general orders dated March 15, 1951, were invalid; but it went on to hold that orders of reference passed in these cases were special orders as envisaged under section 3 of the Act and were therefore not invalid; in consequence it dismissed 425 the petitions. The appellants then applied for and obtained certificates for leave to appeal, and that is how the matter has come up before us. It is unnecessary to set out the facts further in respect of these appeals, as the only points argued before us are about the constitutionality of section 3 and the validity of the two general orders of 1951 and also of the references made in these cases. It is not disputed that if the appellants fail on these points their appeals in this Court must fail. We shall therefore first take up the question, of the constitutionality of section 3 of the Act. The relevant provision of section 3 in 1,951 with which we are concerned was in these terms: "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 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 (c) for appointing industrial courts; (d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order; (g) for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purpose; of the order: The main contention of the appellants is that section 3 is unconstitutional as it delegates essential legislative function to the Government so far 'as cls. (c), (d) and (g) are concerned. Reliance in this connection is placed on the following observations of Kania C. J. in In re The (1), where he. was considering the meaning of the word "delegation": "When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. (1) ; ,767 54 426 These essentials are the characteristics of a legislature by itself. . Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer. While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct. " To the same effect were the observations of Mukherjea J. in that case at p. 982: "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as br oadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy. 'So long as a policy is laid down and a standard established by statute no constitutional 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 legislation is to apply '. " What we have to see therefore is whether the legislature in this case performed its essential legislative function of determining and choosing the legislative policy and of formally enacting that policy into a binding rule of conduct. It was open to the legislature to formulate that policy as broadly and with as little or as much details as it thought proper. Thereafter once a policy is laid down and a standard established by statute, there is no question of delegation of 427 legislative power and all that remains is the making of subordinate rules within prescribed limits which may be left to selected instrumentalities. If therefore the legislature in enacting section 3 has chosen the legislative policy and has formally enacted that policy into a binding rule of conduct, it could leave the rest of ' the details to Government to prescribe by means of subordinate rules within prescribed limits. Now section 3 lays down under what conditions it would be open to Government to act under that section; it also lays down that the Government may act by passing general or special order, once those conditions are fulfilled; it also provides what will be contained in the general or special order of Government. The power given to Government is inter alia to appoint industrial courts, to refer any industrial dispute for conciliation or adjudication in the manner provided in the order, and to make any incidental or supplementary provision which may be necessary or expedient for the purposes of the order. Thus the legislature has indicated its policy and has made it a binding rule of conduct. It has also indicated when the Government shall act under section 3 and how it shall act. It has further indicated what it shall do when it acts under section 3. In these circumstances we are of the opinion that it cannot be said that the delegation made by section 3 is excessive and goes beyond permissible limits. The order to be passed by the Government under section 3 would provide, inter alia, for appointment of industrial courts, for referring any industrial dispute for conciliation or adjudication, and for incidental or supplementary matters which may be necessary or expedient. The Government will have to act within those prescribed limits when it passes, an order under section 3 which will have the force of subordinate rules. What has been urged on behalf of the appellants is that the section does not indicate what powers the industrial courts will have, what will be the qualifications of persons constituting such courts and Where they will sit; and it is urged that these are essential matters which the legislature should have provided for itself Reference in this connection was made to the observations of the Privy Council in 428 Queen vs Burah (1), which was a case of conditional legislation. The Privy Council observed there that the proper legislature having exercised its judgment as to place, person, laws and powers and the result of that judgment having been conditional legislation as to all these things, the legislation would be absolute as soon as the conditions a re fulfilled. These observations have in our opinion nothing to do with such matters of detail as the place where a court or tribunal will sit or the qualifications of persons constituting the tribunal; they refer to more fundamental matters when the words "place" and "person" are used therein. The place there must mean the area to which the legislation would apply; and so far as that is concerned, the legislature has determined the area in this case to which section 3 will apply, namely, the whole of the State of Uttar Pradesh. Similarly, the word "Person" used there refers to persons to whom legislation will apply and that has also been determined by the legislature in this case, namely, it will apply to employers and employees of industrial concerns. We have already said that the conditions under which the order will be passed have also been set out in the opening part of section 3, and how the Government will act is also set out, namely, by referring any industrial dispute that may arise for conciliation or adjudication. As to the power of the industrial court that in our opinion is also provided by section 3, namely, that an industrial court will adjudicate on the industrial dispute referred to it. Therefore all that was left to the Government to provide was to set up machinery by means of a general order which has the force of subordinate rules to carry out that legislative policy which has been enacted in broad details in section 3 and has been formally enacted into a binding rule of con. We are therefore of opinion that section 3 is not unconstitutional in any manner, for there is no delegation of essentials of legislative function thereunder. All that has been left to the Government by that section is to provide by subordinate rules for carrying out the purpose of the legislation. We must therefore reject (1) (1878) L.R. 5 I.A. 178 429 the contention that section 3 is unconstitutional on the ground that it suffers from the vice of excessive delegation. This brings us to the validity of the general order No. 615 of March 15, 1951, passed under section 3. The preamble to that order was in these terms: "In exercise of the powers conferred by clauses (b), (c), (d) and (g) of section 3 and section 8 of the U. P. , (U. P. Act No. XXVIII of 1947) and in supersession of Government order No. 781(L)/XVIII dated March 10, 1948, the Governor is pleased to make the following order, and to direct, with reference to section 19 of the said Act, that notice of this Order be given by publication in the Official Gazette. " Then follows the order setting up conciliation boards for the purpose of conciliation and industrial tribunals for the purpose of adjudication. The main contention on behalf of the appellants is that section 3 prescribes certain conditions precedent before an order could be passed thereunder and those conditions precedent must be recited in the order in order that it may be a valid exercise of the power conferred by section 3. Now there is no doubt that section 3 gives power to the State Government to make certain provisions by general or special order, if, in its opinion, it is necessary or expedient so to do for securing public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment. The forming of such opinion is a condition precedent to the making of the order. The preamble to the second order also does not contain a recital that the State Government had formed such opinion before it made the order. It is therefore contended on behalf of the appellants that the orders were bad as the condition precedent for their formulation was not recited in the orders themselves. At a later stage the appellants also contended that in any case the orders were bad because as a fact they were passed without any satisfaction of the State Government as required under section 3, though no affidavit was filed by the appellants in this behalf in support 430 of this averment. Unfortunately, the State also filed no affidavit to show that the conditions precedent provided ins. 3 had been complied with, even though there was no recital thereof on the face of the order. We should have expected that even though the appellants did not file an affidavit in support of their case on this aspect of the matter, the State would as a matter of precaution have filed an affidavit to indicate whether the conditions precedent set out in section 3 had been complied with, considering that it was a general order which was being attacked under which a large number of adjudications must have taken place. The High Court has commented on this aspect of the matter and has said that the State Government did not file any affidavit in this connection to show that as a matter of fact the State Government was satisfied as required by section 3 even though there was no recital of that satisfaction in the order itself Taking into account, however, the importance of the matter, particularly as it must affect a large number of adjudications affecting a large number of employers and workmen, we asked the State Government if it desired to file an affidavit before us even at this stage. Thereupon the State Government filed an affidavit sworn by the Secretary to Government, Labour Department. The affidavit says that the drafts of G. O. No. 615 and the consequential order G. O. No. 671 passed on March 15, 1951, were put up before the then labour Minister. The said notifications were issued only after all the aspects of the matter were fully considered by the State Government and it had satisfied itself that it was necessary and expedient to issue the same for the purpose of securing public convenience, and maintenance of public order and supplies and services essen tial to the community and for the maintenance of employment. We accept this affidavit and it follows therefore that the satisfaction required as a condition precedent for the issue of an order under section 3 of the Act was in fact there before the order No. 615 was passed on March 15, 1951, followed by the consequential order No. 671 of the same date. In view of this the only question that we have to consider is whether 431 it is necessary that the satisfaction should be recited in the order itself and whether in the absence of such recital an order of this nature would be bad. The first contention of Shri Patliak, who appears for one of the appellants, is that where a condition precedent is laid down for a, statutory power being ' exercised it must be fulfilled before a subordinate authority can exercise such delegated power. As to this contention there can be no dispute. Further, according to Shri Pathak, there must be a recital. in the order that the condition is fulfilled before the subordinate authority acts in the exercise of such delegated power. If there is no such recital in the instrument by which the delegated power is exercised, the defect cannot be cured by an affidavit filed in the proceedings and the order would be bad ab initio. It is urged that where subordinate rules of this nature have to be made and they affect the general public or a section thereof, conditions precedent to the exercise of the power must be recited when the power is exercised in order that the public may know that the rules are legal and framed after satisfying the conditions necessary for the, purpose. Moreover, some of the subordinate rules may have to be enforced by courts and tribunals and it is necessary that courts and tribunals should also know by the presence of the recital in the order that the rules are legal and binding and have been 'framed after the condition precedent had been satisfied. In particular, it is urged that where the rules are of a general nature and are subordinate legislation the satisfaction of the condition precedent becomes a part of the legislative process so far as the subordinate authority is concerned and the defect in legislative process cannot be remedied later by affidavit. Shri C. B. Aggarwala on the other hand contends that where a statute gives power to make an order subject to certain conditions then unless the statute requires the conditions to be set out in the order it is not necessary that the conditions should appear on the face of the order and in such a case it should be presumed that the condition was satisfied unless the 432 contrary is established. He drew a distinction between those cases where the condition precedent is the subjective opinion of the subordinate ' authority and those where the statute requires a hearing and a finding. In the former case he contends that the presumption should be in favour of the opinion having been formed before the order was passed though in the latter case it may be that the order should show that there was a hearing and a finding. The power to pass an order under section 3 arises as soon as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section. The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited will not take away the power to make the order which had already arisen and led to the making of the order. The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made. There is no doubt that where a statute requires that certain delegated power may be exercised on fulfilment of certain conditions precedent, it is most desirable that the exercise should be prefaced with a recital showing that the condition had been fulfilled. But it has been held in a number of cases dealing with executive orders that even if there is some lacuna of 433 this kind, the order does not become ab initio invalid and the defect can be made good by filing an affidavit later on to show that the condition precedent was satisfied. In The State of Bombay vs Purushottam Jog Naik (1), which was a case relating to preventive detention it was held by this Court that even if the order was defective in form it was open to the State Government to prove by other means that it was validly made. In Biswabhusan Naik vs The State of Orissa (2), which was a case relating to sanction under the Prevention of Corruption Act, No. II of 1947, this Court held that "it is desirable to state the facts on the face of sanction, because when the facts are not set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged; but an omission to set out the facts in the sanction is not fatal so long as the facts can be and are proved in some other way". In a later case in The State of Bombay vs Bhanji Munji (3) which was a case of requisition under the Bombay Land Requisition Act, this Court held that it was not necessary to set out the purpose of the requisition in the order; the desirability of such a course was obvious because when it was not done proof of the pur pose must be given in other ways. But in itself an omission to set out the purpose in the order was not fatal so long as the facts were established to the satisfaction of the court in some other way. We see no difficulty in following this principle in the case of those orders also which are in the nature of subordinate legislation. Whether orders are executive or in the nature of subordinate legislation their validity depends on certain conditions precedent being satisfied. If those conditions precedent are not recited on the face of the order and the fulfilment of the conditions precedent can be established to the satisfaction of the court in the case of executive orders we do not see why that cannot be made good in the same way in the case of orders in the nature of (1) ; (2) ; (3) [1955] 1 S.C.R. 777. 55 434 subordinate legislation. We cannot accept the extreme argument of Shri Aggarwala that the mere fact that the order has been passed is sufficient to raise the presumption that conditions precedent have been satisfied, even though there is no recital in the order to that effect. Such a presumption in our opinion can only be raised when there is a recital in the order to that effect. In the absence of such recital if the order is challenged on the ground that in fact there was no satisfaction, the authority passing the order will have to satisfy the court by other means that the conditions precedent were satisfied before the order was passed. We are equally not impressed by Shri Pathak 's argu ment that if the recital is not there, the public or courts and tribunals will not know that the order was validly passed and therefore it is necessary that there must be a recital on the face of the order in such a case before it can be held to be legal. The presumption as to the regularity of public acts would apply in such a case; but as Boon as the order is challenged and it is said that it was passed without the conditions precedent being satisfied the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with. The difference between a case where a general order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the court by other means that the conditions precedent were fulfilled but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complied with by the a uthority: [see the observations of Spens C. J. in King Emperor vs Sibnath Banerjee (1), which were approved by the Privy Council in King Emperor vs Sibnath Banerjee (2)]. Nor are we impressed with the contention of Shri Pathak that conditions become a part of (1) , 42. (2) , 216 7. 435 legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an. affidavit later. It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us. We are therefore of opinion that the defect in the two orders of March 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under section 3 of the Act. Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under section 3 of the Act. It remains to consider certain cases cited by Shri Pathak in support of his contention. The first case to which reference may be made is Wichita Railroad & Light Company vs Public Utilities Commission of the State of Kansas (1). That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public (1) ; 436 utility company could be changed. After referring to section 13 of the Act under consideration, the U. section Supreme Court held that "a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void". It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State. This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it. The next case is Herbert Mahler vs Howard Eby That was a case dealing with deportation of aliens. The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States. But the Secretary made no express finding so far as the warrant for deportation disclosed it. Nor was the defect in the warrant of deportation supplied before the court. The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of Wichita Railroad & Light Company vs Public Utilities COmmission (2). This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us. It may however be added that the court did not discharge the deportees and (1) ; (2) ; 437 gave a reasonable time to the Secretary (Labour) to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them. The last case is Panama Refining Company vs A. D. Ryan(1). In that case section 9 (e) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation, though it was further held that the executive order contained no finding and no statement of the grounds of the President 's action in enacting the prohibition. This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall. We are therefore of opinion that section 3 of the Act is constitutional so far as els. (c), (d) and (g) are concerned and orders Nos. 615 and 671 passed on March 15, 1951 are legal and valid. In the circumstances it is not necessary to consider whether the High Court was right in holding that the orders of references in these cases were special orders under section 3 and the references under those orders were therefore valid. In this view of the matter, the appeals fail and are hereby dismissed. In the circumstances we pass no order as to costs. Appeals dismissed. (1) (1935) 79 L. Ed 446.

The appellants one of whom was armed with hatchet and others with lathis, on being prevented by one 'H ' and his suppor ters through whose field they were committing criminal trespass with the common object to reach a public passage with two loaded carts, are alleged to have attacked 'H ' and his supporters, as 76 602 a result of which 'H ' died. The defence was that on 'H 's protest the appellants asked to be excused and pleaded to be allowed to cross the remaining small portion of the field to reach the public passage, whereupon they were attacked and in self defence they attacked back. The appellants ' case was that H 's right of private defence of the property had ceased for the reasons that the criminal trespass was over on the appellants having indicated their intention to do so, and they were no more an unlawful assembly as their common object had ceased and thereafter all were not responsible for acts of another. Held, that when a criminal trespass had been committed it did not come to an end on the trespasser 's expressing regret and then pleading to be allowed to proceed further with a view to end such a trespass. The aggrieved party had the right to prevent the trespasser from continuing to commit such further criminal trespass, and his directions had to be abided by the trespasser, whatever be the degree of patience required; the trespasser had no right to insist on proceeding further even if not allowed to move in any direction in order to leave the field. Held, further, that when several persons were with lathis and one of them was armed with hatchet and were agreed to use these weapons in case they were thwarted in the achievement of their object, it would be concluded that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one might be so injured as to die as a result of those injuries.

Civil Appeal Nos. 1450 1458 of 1990. From the Judgment and Order dated 21.11.1988 of the Madras High Court in W.A. Nos. 864 to 870 of 1988 and W.P. Nos. 1600 and 1601 of 1986. Narayanswamy, N. Balasubramaniam and A.T.M. Sampath for the Appellant. M. Ramamurthy, Mrs. C. Ramamurthy, M.A. Krishnamoorthy, 639 for the Respondents. R.C. Paul appeared in person. These are appeals by special leave and are directed against a common judgment of the Madras High Court delivered in a group of writ appeals and a writ petition. E.I.D. Parry (India) Ltd. (hereinafter referred to as `the employer ') has one of its units located at Ranipet in Tamil Nadu State where sanitary ware, super phosphate and insecticides are manufactured. Some of its retiring employees filed applications under section 33 C(2) of the (`1947 Act ' for short) before the Labour Court at Madras claiming pension by alleging that payability of pension was a condition of service and the employer had stopped it without any justification and without giving notice under section 9 A of the . The President Officer of the 2nd Additional Labour Court, Madras, allowed the same by his order dated 30th May, 1983, after computing the amounts. The employer preferred six writ petitions. In the meantime the same dispute had been referred to the Industrial Tribunal and it answered the reference against the employees by award dated 13th February, 1985. The award was assailed before the High Court by the Union by filing of the seventh writ petition. All the seven writ petitions were heard by a learned Single Judge who allowed the writ petitions of the management against the order of the Labour Court and dismissed the writ petition preferred by the labour union challenging the award of the Industrial Tribunal. Writ appeals were carried against the Single Judge 's decision. The main controversy before the Division Bench was as to whether pension, or as is referred to by the parties, "retiring allowance" was payable to the employees. This dispute has a historical backdrop to which we may now advert. Under General Office Order No. 26 dated Ist December, 1943 "retiring allowances" were provided for. The Office Order provided that normally only employees with thirty years ' service or more would be eligible to receive "Retiring Allowance". The Board reserved the right to alter the scale of "retiring allowance". either generally or in respect of individual employees and had the authority to sanction `retiring allowance ' when first granted and subsequent payment became a routine matter subject to annual review. 640 Gratuities were also provided under the Office Order by saying that all permanent employees (other than workers who qualify for gratuities as per Factory Certified Standing Order) who were in the Company 's service prior to 1.1.1947 and who do not qualify for Retiring Allowance on retirement, will be eligible for gratuity on finally leaving the Company 's service subject to one or other of the prescribed conditions being fulfilled. In all four alternatives were provided. Clause (4) indicated that employees recruited on or after 1.1.1947 would not be entitled to any gratuity. There was a Memorandum of Settlement between the parties which may be referred to as the settlement of 1956. Clause (6) thereof related to gratuity and provided: "Gratuity shall in future be payable by the company in accordance with the following rules: (a)(i) Where, irrespective of the length of his past service, an employee dies in service, or is retired on a medical certificate acceptable to the company, or is retired by the company on reaching the age of superannuation, he shall be entitled to gratuity calculated at the rate of one month 's basic salary for each completed year of service, and pro rata for any partly completed year of his service ,subject to a maximum of 15 months ' basic salary if his service is less than 30 years, together with half of one month 's basic salary for each completed year of service in excess of 30 years and pro rata for any partly completed year of service in excess of 30 years. . . (d) Employees in service prior to Ist January, 1947 may opt, at the time of leaving service, either for: (i) Gratuity calculated in accordance with these rules or in accordance with the current provisions of General Office Order No. 26, whichever he prefers, or (ii) in lieu of gratuity, a retiring allowance calculated in accordance with the current provisions of General Office Order No. 26. " This settlement as a fact incorporated the relevant part of the Office Order. 641 The came into force with effect from September, 1972 and payment of gratuity became statutory. When that Act came into force, the Employer and the Employees ' Union jointly applied to the Government for exemption from the provisions of the statute. The exemption was, however, not granted. Payability of gratuity is no longer in dispute. What is challenged is the claim of the workmen to retiring allowance (pension) under Office order No. 26. The stand of the employees has been that the retiring allowance under General Office Order No. 26 has not been substituted by the 1956 settlement and they are, subject to being qualified, entitled to the benefit of pension and the statutory advantage of gratuity. It is a fact that the settlement does not provide for payment of pension except to pre 1947 employees and making the benefit liable to exercise of option under clause 6(d) above. It is not in dispute that the retiral benefit (pension) was payable to all qualified employees as a matter of practice. If under the settlement that was not done away with, the benefit arising out of General Office Order No. 26 would still be available and gratuity contemplated under the settlement would not be a substitute of the retiral benefit of pension. The Appellate Bench of the High Court has found that gratuity provided under the settlement was not a substitute of pension. Mr. Narayanaswamy, learned senior counsel appearing in support of the appeals took us through the various documents and placed the matter at considerable length and with lucidity. He even relied on what he described as the prevailing practice between 1956 and 1972 the settlement and the Gratuity Act when no retiral benefit was either claimed or paid. We have, however, not been able to see any defect in the reasoning of the Division Bench decision of the High Court where it has ultimately come to the conclusion that the settlement had not substituted gratuity for pension. We find that by way of an interim measure this Court by an order dated 5th May, 1989 had directed the employer to pay the pension to the employees in accordance with the order of the High Court with effect from Ist May, 1989 and that from the record appears to have been paid. A petition had been filed in this Court on 23rd April, 1990 by the employer for modification of the condition indicated in the order granting special leave and we had heard counsel for both the sides on the said petition. We had made it clear at the hearing of the petition for modification of the order granting special leave that the question as to payability of retirement benefit after the 1956 settlement would be examined. The total number of employees involved in this dispute was 642 about 347. Many of them had not only retired but had also died and in respect of those who were dead it would be a question of the benefits up to the date of death of the respective employees to be paid to their legal representatives. Mr. Narayanaswamy had emphatically contended that what was being decided was not a claim of 347 employees but it had its repercussion on the industrial peace between the employer and the employee at other places. We would like to make it clear that we have gone into the question confined to the claim to the employees of the Ranipet factory and not the liability of the employer generally, Besides, Mr. Narayanaswamy had also told us at the hearing that there are special features in the arrangement in regard to employees elsewhere. We are satisfied that the Appellate Bench of the High Court was right in holding that the entitlement to pension had not been substituted by the settlement of 1956 and, therefore, the claim to pension subject to qualification being satisfied was available to be maintained notwithstanding the settlement of 1956, The High Court rightly came to the conclusion that the Labour Court had justifiably worked out the dues and the claim petitions under section 33 C(2) of the . We uphold the judgment of the High Court and dismiss these appeals. The employees had asked for award of interest on their dues. The challenge of the employer was not groundless and we do not think in the facts of these cases the employees or their legal representatives would be entitled to interest. We hope and trust that the employer would not liquidate its liability without delay by satisfying the orders of the Labour Court and the claims of the workmen or their legal representatives as and when made. A sum of Rs. 10,000 had been given by the employer to Sri Pant for the Union to contest these matters and he has been paid the amount under this Court 's order. No order for further courts. T.N.A. Appeals dismissed.

According to the Prosecution, appellants 1 and 2 have been friends and were in the habit of selling ganja and spending money lavishly. They attempted to commit theft in their locality, but were no successful. Therefore, they hatched a conspiracy to entice boys from affluent families to bring cash and jewellery and murder them after taking away the cash and jewellary. Likewise, they killed 4 boys, in a span of about 5 years. Both of them were charged with offences under section 120B read with section 34 IPC, section 364 and 392 read with section 397 IPC in all the four cases filed against them, and were convicted by the Sessions Court. However, in one case, on appeal, they were acquitted by the High Court. In another case, the death sentence imposed by the Sessions Court is pending confirmation by the High Court. In the other two cases, both the appellants were sentenced to 712 death by the Sessions Court and on appeal the High Court confirmed the sentence in one case and in the other, the High Court confirmed the death sentence passed against appellant No. 1 and acquitted appellants No. 2 of all the charges. The appellants preferred the present appeals challenging the said order of the High Court confirming the sentences against them by contending that there was no proper identification of the dead body and that the approver was not a reliable witness and since his evidence did not receive corroboration, it cannot form the basis for convicting the appellants. It was also contended that the extreme penalty of death sentence imposed was not justified. Dismissing the appeals, this Court, HELD: 1.1 In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. If a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out, it is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc. and that would afford a complete immunity to the guilty from being punished and the accused would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced. [717A D] 1.2 In the instant case, the evidence of PWs. 7 to 10 would establish that they have seen the dead body of the deceased in the well and brought it out and the photograph was taken at the time of inquest. It was identified to be that of the deceased by no other than the mother of the deceased. Thus there is no doubt as regards the identity of the dead body. Also the medical evidence establishes that the deceased died due to stabbing with sharp edged weapon like knife. [717E] 2. Law is settled that an approver is a competent witness against the accused person. But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence 713 of the approver, a particips criminis from independent evidence occular or circumstantial, of general particulars regarding the story spoken of by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance. The reliability of the evidence of an approver should be considered from totality of the facts and circumstances. In one of the two trials there is no dispute that such a corroborative evidence connecting both the appellant is available which was minutely considered by the trial court and the High Court and was accepted. There is infirmity in that regard. In the other trial appellant No. 2 was acquitted on the ground that his extra judicial confession made to PW 23, the only corroborative evidence, was disbelieved by the High Court. Both the Courts below gave categorical finding that PW 1 is a reliable witness. The evidence of the approver received corroboration from independent evidence. The canopy of the material evidence from independent sources sufficiently corroborates the approver 's evidence. He is a reliable witness. No infirmity has been pointed out to disbelieve his evidence. [719D H; 720A] Rameshwar vs The State of Rajasthan, ; ; section Swaminathan vs State of Madras, AIR 1957 SC 340; Sarwan Singh vs The State of Punjab, , ; ; B.D. Patil vs State of Maharashtra, ; Md. Hussan Umar Kochra etc. vs K.S. Dalipsinghji & Anr., [1970] 1 SCR 130; Ram Narain vs State of Rajasthan, ; and Abdul Sattar vs Union Territory, Chandigarh, [1985] (Suppl.) SCC 599, relied on. King vs Baskervilli, and Mahadeo vs The King, AIR 1936 P.C. 242, referred to. In the instant case, it is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja. They conspired to entice innocent boys from affluent families, took them to far flung places where the dead body could not be identified. The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected. Four murders in a span of five years were committed for gain in cold blooded, premeditated and planned way. In this case the trial of the murder relating to the two deceased practically took place simultaneously by which date the appellants were convicted for the murder of two other boys. Therefore, the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts. One of the deceased is no other than the nephew of appellants No. 1. This 714 would establish his depravity and hardened criminality. No regard for precious lives of innocent young boys was shown. They adopted the crime of murder for gain as a means to living. As such there is no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court. [721D G] 4. The doctrine of benefit of doubt only would operate in proof of the commission of the offence. If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to that benefit and be acquitted. The benefit of doubt again does not enter in the area of consideration of imposing sentence. [720C] 5.1. Undue sympathy to impose inadequate sentence would do harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. [721C] 5.2. The compassionate grounds such as the accused being young bread winners of the family etc. would always be present in most casts and are not relevant for interference with the sentence. [722D] 6. Under section 235(2) when the accused has been given right to be heard on the question of sentence it is a valuable right. To make that right meaningful the procedure adopted would be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence. The hearing may be on the same day if the parties are ready or to a next date but once the court after giving opportunity, proposes to impose appropriate sentence again there is no need to adjourn the case under section 235(2) to next date. In the present matters the counsel was directed by the High Court to show any additional grounds on the question of sentence, but the counsel was unable to give any additional ground. [722B C]

n No. 105 of 1961. Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. A. V. Viswanatha Sastri, M. K. B. Namburdripat and M. R. K. Pillai" for the petitioner. M. C. Setalvad Attorney General of India, K. K. Mathew, Advocate General for the State of Kerala, Sardar Bahadur, George Pudissary and V. A. Seyid Muhammad, for the respondent. December 5. The Judgment of P.B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo and K. C. Das Gupta, JJ., was delivered by Gajendragadkar, J. N. Rajagopala Ayyangar, J., delivered a separate judgment. GAJENDRAGADKAR, J. This petition has been filed under article 32 of the Constitution and it seeks to challenge the validity of the Kerala Agrarian Relations Act, 1960 (Act 4 of 1961) (hereafter called the Act). The petitioner owns about 1, 250 acres of land in the Kerala State. These lands were originally situated within the erstwhile State of Cochin which now forms part of the Kerala State. 757 Out of the lands owned by the petitioner nearly 900 acres are classified in the land records maintained by the State as Pandaravaka holdings while the remaining lands are classified as Puravaka holdings. By his petition the petitioner claims a declaration that the Act is ultra vires and unconstitutional and prays for a writ of certiorari or other appropriate writ, order or direction against the respondent, the State of Kerala, restraining it from implementing the provisions of the Act. It appears that a notification has been issued by the respondent on February 15, 1961, directing the implementation of sections 1 to 40, 57,58,60,74 to 79 as well as sections 81 to 95 of the Act from the date of the notification. The petitioner contends that the notification issued under the Act is also ultra vires, unconstitutional and illegal and as such he wants an appropriate writ or order to be issued quashing the said notification. That in brief is the nature of the reliefs claimed by the petitioner. The Kerala Agrarian Relations Bill which has ultimately become the Act was published in the Government Gazette of Kerala on December 18, 1957, and was introduced in the Kerala Legislative Assembly on December 21, 1957, by the Communist Government which was then in power. The bill was discussed in the Assembly and was ultimately passed by it on June 10, 1959. It was then reserved by the Governor of the State for the assent of the President under article 200 of the Constitution. Meanwhile, on July 31, 1959 the President issued a proclamation under article 356 and the Assembly was dissolved. In February 1960 mid term general elections took place in Kerala and as a result a coalition Government came into power. On July 27,1960, the President for whose assent the bill was pending sent it back with his message requesting the Legislative Assembly to reconsider the bill in the light of the specific amendments suggested by him. On August 2, 1960, the Governor returned the bill 758 remitted by the President with his message and the amendments suggested by him to the new Assembly for consideration. On September 26, 1960, the amendments suggested by the President were taken up for consideration by the Assembly and ultimately on October 15, 1960, the bill as amended in the light of the President 's recommendations was passed by the Assembly. It then received the assent of the President on January 21, 1961, and after it thus became law the impugned notification was issued by the respondent on February 15, 1961. On March 9, 1961, the present writ petition was filed. Broadly stated three points fall to be considered in this petition. The petitioner challenges the validity of the Act on the preliminary ground that the bill which was pending before the President for his assent at the time when the Legislative Assembly was dissolved lapsed in consequence of the said dissolution and so it was not competent to the President to give his assent to a lapsed bill with the result that the said assent and all proceedings taken subsequent to it are constitutionally invalid. If this preliminary point is upheld no further question would arise and the petition will have to be allowed on that ground alone. If however, this preliminary challenge to the validity of the bill does not succeed the respondent raises its preliminary objection that the Act is protected under article 31 A (1) (a) and as such its validity cannot be challenged on the ground that it is inconsistent with, or takes away, or abridges, any of the rights conferred by articles 14, 19 and 31. This point raises the question as to whether the properties owned and possessed by the petitioner are an "estate" within the meaning of article 31 A (2) (a). If this question is answered in the affirmative then the Act would be protected under article 31 A (1) (a) and the challenge to its validity on the ground that it is inconsistent with articles 14,19 and 31 will not 759 survive. If, however, it is held that the whole or any part of the properties with which the petitioner is concerned is outside the purview of "estate" as described by article 31 A (2) (a) the challenge to the validity of the Act on the merits would have to be considered. The petitioner contends that the material provisions of the Act contravenes the fundamental rights guaranteed by Arts, 14, 19 (1) (f) and 31 of the Constitution. That is how three principal points would call for our decision in the present writ petition. Let us first examine the argument that the bill which was pending the assent of the President at the time when the legislative Assembly was dissolved has lapsed and so no further proceedings could have been validly taken in. respect of it. In support of this argument it is urged that wherever the English parliamentary form of Government prevails the words "prorogation" and "dissolution" have acquired the status of terms of art and their significance and consequence are well settled. The argument is that if there is no provision to the contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India. There is no doubt that, in England, in addition to bringing a session of Parliament to a close prorogation puts and end to all business which is pending consideration before either House at the time of such prorogation; as a result any proceedings either in the House or in any Committee of the house lapse with the session Dissolution of Parliament is invariably preceded by prorogation, and what is true about the result of prorogation is, it is said, a fortiori true about the result of dissolution (1). Dissolution of Parliament is sometimes described as "a civil death of Parliament". Ilbert, in his work on 760 'Parliament ', has observed that "prorogation means the end of a session (not of a Parliament)"; and adds that "like dissolution, it kills all bills which have not yet passed". He also describes dissolution as an "end of a Parliament (not merely of a session) by royal proclamation", and observes that "it wipes the slate clean of all uncompleted bills or other proceedings". Thus, the petitioner contends that the inevitable conventional consequence of dissolution of Parliament is that there is a civil death of Parliament and all uncompleted business pending before Parliament lapses. In this connection it would be relevant to see how Parliament is prorogued. This is how prorogation is described in May 's "Parliamentary Practice": "If Her Majesty attends in person to prorogue Parliament at the end of the session. the same ceremonies are observed as at the opening of Parliament: the attendance of the Commons in the House of Peers is commanded; and, on their arrival at the bar, the Speaker addresses Her Majesty, on presenting the supply bills, and adverts to the most important measures that have received the sanction of Parliament during the session. The royal assent is then given to the bills which are awaiting that sanction, and Her Majesty 's Speech is read to both Houses of Parliament by herself or by her Chancellor; after which the Lord Chancellor, having received directions from Her Majesty for that purpose, addresses both Houses in this manner: "My Lords and Members of the House of Commons, it is Her Majesty 's royal will and pleasure that this Parliament be prorogued (to a certain day) to be then here holden; and this Parliament is accordingly prorogued" (2). According to May, the effect of prorogation is at once to suspend all business until Parliament shall be summoned again. Not only are the proceedings of Parliament at an end but all proceedings pending at the time are quashed except 761 impeachment by the Commons and appeals before the House of Lords. Every bill must therefore be renewed after prorogation as if it had never been introduced. To the same effect are the statements in Halsbury 's "Laws of England" (Vide: Vol. 28, pp. 371, 372, paragraphs 648 to 651). According to Anson, "prorogation ends the session of both Houses simultaneously and terminates all pending business. A bill which has passed through some stages but which is not ripe for royal assent at the date of prorogation must begin at the earliest stage when Parliament is summoned again and opened by a speech from the throne" (1). It would thus be seen that under English parliamentary practice bills which have passed by both Houses and are awaiting assent of the Crown receive the royal assent before the Houses of Parliament are prorogued. In other words, the procedure which appears to be invariably followed in proroguing and dissolving the Houses shows that no bill pending royal assent is left outstanding at the time of prorogation or dissolution. That is why the question as to whether a bill which is pending assent lapses as a result of prorogation or dissolution does not normally arise in England. Thus, there can be no doubt that in England the dissolution of the Houses of Parliament kills all business pending before either House at the time of dissolution. According to the petitioner, under our Constitution the result of dissolution should be held to be the same; and since the bill in question did not receive the assent of the President before the Assembly was dissolved it should be held that the said bill lapsed. This argument has taken another form. The duration of the Legislative Assembly is prescribed by article 172(1), and normally at the end of five years the life of the Assembly would come to an end. Its life could come to an end even before the expiration of the said period 762 of five years if during the said five years the President acts under article 356. In any case there is no continuity in the personality of the Assembly where the life of one Assembly comes to an end and another Assembly is in due course elected. If that be so, a bill passed by one Assembly cannot, on well recognised principles of democratic government. be brought back to the successor Assembly as though a change in the personality of the Assembly had not taken place. The scheme of the Constitution in regard to the duration of the life of State Legislative Assembly, it is urged, supports the argument that with the dissolution of the Assembly all business pending before the Assembly at the date of dissolution must lapse. This position would be consonant with the well recognised principles of democratic rule. The Assembly derives its sovereign power to legislate essentially because it represents the will of the citizens of the State, and when one Assembly has been dissolved and another has been elected in its place, the successor Assembly cannot be required to carry on with the business pending before its predecessor, because that would assume continuity of personality which in the eyes of the Constitution does not exist. Therefore, sending the bill back to the successor Assembly with the message of the President would be inconsistent with this basic principle of democracy. It is also urged that in dealing with the effect of the relevant provisions of the legislative procedure prescribed by article 196 it would be necessary to bear in mind that the powers of the legislature which are recognised in England will also be available to the State Legislature under article 194 (3). The argument is that whether or not a successor Legislative Assembly can carry on with the business pending before its predecessor at the time of its dissolution is really 763 a matter of the power of the Legislature and as such the powers of the Legislative Assembly shall be "such as may from time to time be defined, by the Legislature by law, and, until so defined, shall be those of the House of Commons of Parliament of the United Kingdom, and of its Members and Committees, at the commencement of this Constitution". In other words, this argument assumes that the conventional position with regard to the effect of dissolution of Parliament which prevails in England is expressly saved in India by virtue of article 194(3) until a definite law is passed by the State Legislature in that behalf to the contrary. It would be noticed that this argument purports to supply a constitutional basis for the contention which we have already set out that the word "dissolution" is a term of art and its effect should be the same in India as it is in England. It may incidentally be pointed out that the corresponding provisions for our Parliament are contained in article 104(3). As we have already mentioned there is no doubt that dissolution of the House of Parliament in England brings to a close and in that sense kills all business pending before either House at the time of dissolution; but, before accepting the broad argument that this must inevitably be the consequence in every country which has adopted the English Parliamentary form of Government it would be necessary to enquire whether there are any provisions made by our Constitution which deal with the matter; and if the relevant provisions of our Constitution provide for the solution of the problem it is that solution which obviously must be adopted. This position is not disputed. Therefore, in determining the validity of the contentions raised by the petitioner it would be necessary to interpret the provisions of article 196 and determine their effect. The corresponding provisions in regard to the 764 legislative procedure of Parliament are contained in article 107. The argument based on the provisions of article 194(3) is, in our opinion, entirely misconceived. The powers, privileges and immunities of State Legislatures and their members with which the said Article deals have no reference or relevance to the legislative procedure which is the subject matter of the provisions of article 196. In the context, the word 'powers ' used in article 194(3) must be considered along with the words "privileges and immunities" to which the said clause refers, and there can be no doubt that the said word can have no reference to the effect of dissolution with which we are concerned. The powers of the House of the Legislature of a State to which reference is made in article 194(3) may, for instance, refer to the powers of the House to punish contempt of the House. The two topics are entirely different and distinct and the provisions in respect of one cannot be invoked in regard to the other. Therefore, there is no constitutional basis for the argument that unless the Legislature by law has made a contrary provision the English convention with regard to the effect of dissolution shall prevail in this country. What then is the result of the provisions of article 196 which deals with the legislative procedure and makes provisions in regard to the introduction and passing of bills? Before dealing with this question it may be useful to refer to some relevant provisions in regard to the State Legislature under the constitution. Article 168 provides that for every State there shall be a Legislature which shall consist of the Governor and (a) in the States of Bihar, Bombay, Madhya Pradesh, Madras, Mysore, Punjab, Uttar Pradesh and West Bengal, two Houses, and (b) in other States, one House. In the present petition we are concerned with the State of Kerala which has only one House 765 Article 168 (2) provides that where there are two House of the Legislature of a State. one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly. Article 170 deals with the composition of the Legislative Assembly. and article 171 with that of the Legislative Council. Article, 172 provides for the duration of the State Legislatures. Under article 172(1) the normal period for the life of the Assembly is five years unless it is sooner dissolved. Article 172(2) provides that the Legislative Council of a State shall not be subjected to dissolution, but as nearly as possible one third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. It would thus be seen that under the Constitution where the State Legislature is bicameral the Legislative Council is not subject to dissolution and this is a feature which distinguishes the State Legislatures from the England Houses of Parliament. When the Parliament is dissolved both the Houses stand dissolved, whereas the position is different in India. In the States with bicameral Legislature only the Legislative Assembly can be dissolved but not the Legislative Council. The same is the position under article 83 in regard to the House of the People and the Council of States. This material distinction has to be borne in mind in construing the provisions of article 196 and appreciating their effect. Article 196 reads thus: "196. (1) Subject to the provisions of Articles 198 and 207 with respect to Money Bills and other financial Bills, a Bill may originate in either House of the Legislature of a State which has a Legislative Council. 766 (2) Subject to the provision of articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses either without amendment or with such amendments only as are agreed to by both Houses. (3) A Bill pending in the Legislature of a State shall not lapse by reason of the prorogation of the House or Houses thereof. (4) A Bill pending in the Legislative Council of a State which has not been passed by the Legislative Assembly shall not lapse on a dissolution of the Assembly. (5) A Bill which is pending the Legislative Assembly of a State, or which having been passed by the Legislative Assembly is pending in the Legislative Council, shall lapse on a dissolution of the Assembly". With the first two clauses of this Article we are not directly concerned in the present petition. It is the last three clauses that call for our examination Under cl. (3) a Bill pending in the Legislature of a State will not lapse by reason of the prorogation of the House or Houses thereof. Thus, this clause marks a complete departure from the English convention inasmuch as the prorogation of the House or Houses does not affect the business pending before the Legislature at the time of prorogation. In considering the effect of dissolution on pending business it is therefore necessary to bear in mind this significant departure made by the Constitution in regard to the effect of prorogation. Under this clause the pending business may be pending either in the Legislative Assembly or in the Legislative Council or may be pending the assent of the Governor. At whichever stage the 767 pending business may stand, so long as it is pending before the Legislature of a state it shall not lapse by the prorogation of the Assembly. Thus, there can be no doubt that unlike in England prorogation does not wipe out the pending business. Clause (4) deals with a case where a Bill is pending in the Legislative Council of a State and the same has not been passed by the Legislative Assembly; and it provides that such a bill pending before the Legislative Council of a State shall not lapse on the dissolution of the Legislative Assembly. It would be noticed that this clause deals with the case of a Bill which has originated in the Legislature Council and has yet to reach the Legislative Assembly; and so the Constitution provides that in regard to such a Bill which has yet to reach, and be dealt with by, the Legislative Assembly the dissolution of the Legislative Assembly will not affect its further progress and it will not lapse despite such dissolution. That takes us to cl. This clause deals with two categories of cases. The first part deals with Bills which are pending before the Legislative Assembly of a State, and the second with Bills which having been passed by the Legislative Assembly are pending before the Legislative Council. The Bills falling under both the clause lapse on the dissolution of the Assembly. The latter part of cl. (5) deals with cases of Bills which are supplemental to the cases covered by cl. Whereas cl.(4) dealt with Bills which had originated in the Legislative Council the latter part of cl.(5) deals with Bills which, having originated in the Legislative Assembly, have been passed by it and are pending before the Legislative Council. Since cl. (4) had provided that Bills falling under it shall not lapse on dissolution of the Assembly it was thought necessary to provide as a matter of precaution that Bills falling under the latter part of cl. (5) shall lapse on the dissolution of the Assembly. 768 That leaves part 1 of cl. (5) to be considered. This part may cover three classes of cases. It may include a Bill which is pending before the Legislative Assembly of a State which is unicameral and that is the case with which we are concerned in the present proceedings. It may also include a case of a Bill which is pending before the Legislative Assembly of a state which is bicameral; or it may include a case of a Bill which has been passed by the Legislative Council in a bicameral State and is pending before the Legislative Assembly. In all these cases the dissolution of the Assembly leads to the consequence that the Bills lapse. It is significant that whereas cl. (3) deals with the case of a Bill pending in the Legislature of a State, cl. (5) deals with a Bill pending in the Legislative Assembly of a State or pending in the Legislative Council; and that clearly means that a Bill pending assent of the Governor or the President is outside cl. If the Constitution makers had intended that a Bill pending assent should also lapse on the dissolution of the Assembly a specific provision to that effect would undoubtedly have been made. Similarly, if the Constitution makers had intended that the dissolution of the Assembly should lead to the lapse of all pending business it would have been unnecessary to make the provisions of cl. (5) at all. The cases of Bills contemplated by cl. (5) would have been governed by the English convention in that matter and would have lapsed without a specific provision in that behalf. Therefore, it seems to us that the effect of cl. (5) is to provide for all cases where the principle of lapse on dissolution should apply. If that be so, a Bill pending assent of the Governor or President is outside cl. (5) and cannot be said to lapse on the dissolution of the Assembly. It is however, contended by the petitioner that if cl. (5) was intended to deal with all cases 769 where pending business would lapse on the dissolution of the Assembly it was hardly necessary to make any provision by cl. There is no doubt in force in the contention; but, on the other hand it may have been thought necessary to make a provision for Bill pending in the Legislative Council of a State because the Legislative Council of a continuing body not subject to dissolution and the Constitution wanted to make a specific provision based on that distinctive character of the Legislative Council. Having made a provision for a Bill originating and pending in the Legislative Council by cl. (4) it was thought necessary to deal with a different category of cases where Bills have been passed by the Legislative Assembly and are pending in the Legislative Council; and so the latter part of cl. (5) was included in cl. On the other hand, if the petitioner 's contention is right cls. (3) and (4) of article 196 having provided for cases were business did not lapse it was hardly necessary to have made any provisions by cl. (5) at all. In the absence of cl. (5) it would have followed that all pending business, on the analogy of the English convention, would laps on the dissolution of the Legislative Assembly. It is true that the question raised before us by the present petition under article 196 is not free from difficulty but, on the whole, we are inclined to take the view that the effect of cl. (5) is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assembly. In that sense we read cl. (5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly. If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld. In this connection it is necessary to consider articles 200 and 201 which deal with Bills reserved for the assent of the Governor or the President. 770 Article 200 provides, inter alia, that when a Bill has been passed by the Legislative Assembly of a State it shall be presented to the Governor, and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. The proviso to this Article requires that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent the Governor shall not withhold assent therefrom. The Second proviso deals with cases where the Governor shall not assent to but shall reserve for the consideration of the President any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill. Article 201 then deals with the procedure which has to be adopted when a Bill is be assented to by the President. Under the said Article the President shall declare either that he assents to the Bill or that he withholds assent therefrom. The proviso lays down, inter alia, that the President may direct the Governor to return the Bill to the House together, with such message as is mentioned in the first proviso to article 200, and when a Bill is so returned the House shall reconsider it accordingly within a period of six months from the date of receipt of such message, and if it is again passed by the House with or without amendment it shall be presented again to the President for his consideration. The provisions of 771 these two Articles incidentally have a bearing on the decision of the question as to the effect of article 196. The corresponding provision for Parliamentary Bill is contained in article 111. It is clear that if a Bill pending the assent of the Governor or the President is hold to lapse on the dissolution of the Assembly unlikely that a fair number of Bills which may have been passed by the Assembly, say during the last six months of its existence, may be exposed to the risk of lapse consequent on the dissolution of the Assembly, unless assent is either withheld or granted before the date of the dissolution. If we look at the relevant provisions of articles 200 and 201 from this point of view it would be significant that neither Article provides for a time limit within which the Governor or the President should come to a decision on the Bill referred to him for his assent. Where it appeared necessary and expedient to prescribe a time limit the Constitution has made appropriate provisions in that behalf (vide : article 197 (1)(b) and (2)(b)). In fact the proviso to article 201 requires that the House to which the Bill is remitted with a message from the President shall reconsider it accordingly within a period of six months from the date of the receipt of such message. Therefore, the failure to make any provision as to the time within which the Governor or the President should reach a decision may suggest that the Constitution makers knew that a Bill which was pending the assent of the Governor or the President did not stand the risk of laps on the dissolution of the Assembly. That is why no time limit was prescribed by articles 200 and 201. Therefore, in our opinion, the scheme of articles 200 and 201 supports the conclusion that a Bill pending the assent of the Governor or the President does not lapse as a result of the dissolution of the Assembly and that incidentally shows that the provisions of article 196(5) are exhaustive. 772 At this stage it is necessary to examine another argument which has been urged against the validity of the Act on the strength of the provisions of articles 200 and 201. It is urged that even if it be held that the Bill does not lapse, the Act is invalid because it has been passed in contravention of articles 200 and 201. The argument is that the scheme of the said two Articles postulates that the Bill which is sent back with the message of the President ought to be sent back to the same house that originally passed it. It is pointed out that when the message is sent by the President the House the requested to reconsider the Bill and it is provided that if the Bill is again passed by the House the Governor shall not withhold assent therefrom. This argument proceeds on the basis that the concept of reconsideration must involve the identity of the House, because unless the House had considered it in the first instance it would be illogical to suggest that it should reconsider it. Reconsideration means consideration of the Bill again and that could be appropriately done only if it is the same House that should consider it at the second stage. The same comment is made on the use of the expression "if the Bill is passed against. It is also urged that it would be basically unsound to ask the successor House to take the Bill as it stands and not give it an opportunity to consider the merits of all the provisions of the Bill. We are not impressed by these pleas. When the successor House is considering the Bill it would be correct to say that the Bill is being reconsidered because in fact it had been considered once. Similarly, when it is said that if the Bill is passed again the Governor shall not withhold assent therefrom it does not postulate the existence of the same House because even if it is the successor House which passes it is true to say that the Bill has been passed again because in fact it had been passed on an early occasion. Besides, if the effect of article 196 is that the Bills 773 pending assent do not lapse on the dissolution of the House then relevant provisions of article 200 must be read in the light of that conclusion. In our opinion, there is nothing in the proviso to article 201 which is inconsistent with the basic concept of democratic Government in asking a successor House to reconsider the Bill with the amendments suggested by the President because the proviso makes it, perfectly clear that it is open to the successor House to throw out the Bill altogether. It is only if the Bill passed by the successor House that the stage is reached to present it to the Governor or President for his assent, not otherwise. Therefore, there is no substance in the argument that even if the effect of article 196 is held to be against the theory of lapse propounded by the petitioner the Bill is invalid because it has been passed in contravention of the provisions of articles 200 and 201. This argument proceeds on the assumption that the House to which the Bill is sent must be the same House and that assumption, we think is not well founded. We would accordingly hold that the preliminary contention raised against the validity of the Bill cannot be sustained. That takes us to the point raised by the respondent that the Act attracts the protection of article 31A (1)(a) and so is immune from any challenge under articles 14, 19 and 31. There is no doubt that if the Act falls under article 31A(1)(a) its validity cannot be impugned on the ground that it contravenes articles 14, 19 and 31; but the question still remains: Does the Act fall under article 31A (1) (a) ?; and the answer to this question depends on whether or not the properties of the petitioner fall within article 31A(2)(a). Before dealing with this point it is necessary to set out the relevant provisions of article 31A (2) Article 31A(2) reads thus: "31A (2). In this article (a) the expression 'estate ' shall, in relation to any local area, have the same meaning 774 as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant, and in the States of Madras and Kerala any janmam right; (b) the expression 'rights ', in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor tenure holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. " Article 31A was added by the Constitution (First Amendment) Act, 1951, with retrospective effect. Similarly, the portion in italics was added by the Constitution (Forth Amendment) Act, 1955, with retrospective effect. It is well known that the Constitution First Amendment of 1951 was made in order to validate the acquisition of zamindari estates and the abolition of permanent settlement. In other words the effect of the First Amendment was to provide that any law which affected the right of any proprietor or intermediate holder in any estate shall not be void on the ground that its provisions were inconsistent with any of the fundamental rights guaranteed by part III of the Constitution. The acquisition of zamindnri rights and the abolition of permanent settlement, however, was only the first step in the matter of agrarian reform which the Constitution makers had in mind. When the first zamindari abolition laws were passed in pursuance of the programme of social welfare legislation their validity was impugned on the ground that they contravened the provisions of articles 14, 19 and 31. In order to save the impugned legislation from any such challenge articles 31A and 31B and the Ninth Schedule were enacted by the Constitution First Amendment Act; and it is in that context that article 31A (2) (a) 775 and (b) were also enacted. After the zamindari abolition legislation was thus saved the Constitution makers thought of enabling the State Legislatures to take the next step in the matter of agrarian reform. As subsequent legislation passed by several States shows the next step which was intended to be taken in the matter of agrarian reform was to put a ceiling on the extent of individual holding of agricultural land. The inevitable consequence of putting a ceiling on individual occupation or ownership of such agricultural land was to provide for the acquisition of the land held in excess of the prescribed maximum for distribution amongst the tillers of the soil. It is in the light of this background that we have to determine the question as to whether the property with which the petitioner is concerned constitutes an estate or rights in relation to an estate under cl. (2)(a) or (b). The petitioner contends that in interpreting the expression "estate" we must have regard to the fact that originally it was intended to cover case of zamindars and other intermediaries who stood between the State and the cultivator and who were generally alienees of land revenue; and so it is urged that it is only what may be broadly described as landlord tenures which fall within the scope of the expression "estate ". It is conceded that the expression "rights in relation to an estate " as it now stands is very broad and it includes the interest of a raiyat and also an under raiyat; but it is pointed out that the said rights, however comprehensive and broad they may be, must be rights in relation to an estate, and unless the property satisfies the test which would have been reasonably applied in determining the scope of "estate" in 1950 the amendment made in cl. (2)(b) will not make the denotation of the word "estate" any broader. In other words, the argument is that the denotation which the expression "estate " had in 1950 continues to be the same even after the 776 amendments of 1965 because no suitable amendment has been made in cl. (2) (a). But the infirmity in this argument is that the limitation which the petitioner seeks to place on the denotation of the expression "estate" is not justified by any words used in cl. (2)(a) at all; it is introduced by reading cls. (2)(a) and (b) together, and that would not be reasonable or legitimate. In deciding what an "estate" means in cl. (a) we must in the first instance construe cl. (a) by itself. In dealing with the effect of cl. (2) (a) two features of the clause are significant. First, that the definition has been deliberately made inclusive, and second, that its scope has been left to be determined not only in the light of the content of the expression "estate " but also in the light of the local equivalent of the expression "estate" as may be found in the existing law relating to land tenure in force in that area. The Constitution makers were fully conscious of the fact that the content of the expression "estate" may not be identical in all the areas in this country and that the said concept may not be described by the same word by the relevant existing law; and so the decision of the question as to what an estate is has been deliberately left rather elastic. In each case the question to decide would be whether the property in question is described as an estate in the terminology adopted by the relevant law. If the said law uses the word "estate" and defines it the there is no difficulty in holding the property described by the local law as an estate is an estate for the purpose of this clause. The difficulty arises only where the relevant local law does not describe any agricultural property expressly as an estate. It is conceded that though no agricultural property may be expressly described as an estate by the local law, even so there may be some properties in the area which may constitute an 777 estate under cl. (2) (a); and so in deciding which property constitutes an estate it would be necessary to examine its attributes and essential features and enquire whether it satisfies the test implied by the expression "estate " as used in cl. (2) (a) In this connection it is pertinent to remember that the Constitution makers were aware that in several local areas in the country where the zamindari tenure did not prevail the expression "estate" as defined by the relevant law included estates which did not satisfy the requirement of the presence of intermediaries, and yet cl. (2)(s) expressly includes estates in such areas within its purview and that incidentally shows that the concept of " estate " as contemplated by cl. (2)(a) is not necessarily conditioned by the rigid and inflexible requirement that it must be landlord tenure of the character of zamindari estate. That is why, treating the expression "estate" as of wide denotation in every case we will have to enquire whether there is a local definition of "estate" prevailing in the relevant existing law; if there is one that would determine the nature of the property. If there is no definition in the relevant existing law defining the word "estate" as such we will have to enquire whether there is a local equivalent, and in that connection it would be necessary to consider the character of the given agricultural property and its attributes and then decide whether it can constitute an estate under cl. (2)(a). If the expression "estate" is construed in the narrow sense in which the petitioner wants it to be construed then it may not be easy to reconcile the said narrow denotation with the wide extent of the word "estate" as is defined in some local definitions of the word "estate ". Therefore, in deciding the question as to whether the properties of the petitioner are an "estate" within the meaning of article 31A(2)(a) we are not prepared to adopt 778 the narrow construction that the estate must always and in every case represent the estate held by zamindars or other similar intermediaries who are the alienees of land revenue. This question can also be considered from another point of view. As we will presently point out, decisions of this Court in relation to agricultural estates existing in areas where the zamindari tenure does not prevail clearly show that the definitions in the relevant existing laws in those areas include properties within the expression "estate" despite the fact that the condition of the existence of the intermediary is not satisfied by them, and so there can be no doubt that even in such ares if the definition of the word "estate" includes specified agricultural properties they would be treated as estates under cl. (2)(a). Now just consider what would be the position in areas where the zamindari tenure does not prevail and where the relevant existing law dose not contain a definition of an "estate" as such. According to the petitioner 's argument where in such a case it is necessary to find out a local equivalent of an estate the search for such a local equivalent would be futile, because in the area in question the condition or test of the presence of intermediaries may not be satisfied and that would mean that the main object with which the Constitution First and Fourth Amendment Acts of 1951 and 1955 were passed would be of no assistance to the State Legislatures in such local areas. If the State Legislatures in such local areas want to enact a law for agrarian reform they would not be able to claim the benefit of article 31 A (1)(a). Indeed, the petitioner concedes that on his construction of cl. (2) (a) the intended object of the amendments may not be carried out in certain areas where the existing relevant law does not define an estate as such; but his argument is that the Constitution makers failed to give effect to their intention 779 because they omitted to introduce a suitable amendment in cl. (2)(a). On a fair construction of cl. (2) (a) we do not think that we are driven to such a conclusion. Therefore, we are not inclined to accept the petitioner 's narrow interpretation of the word "estate" in cl. (2) (a). It is necessary therefore to have some basic idea of the meaning of the word "estate" as used in article 31A(2) (a). As we have said already, where the word "estate" as such is used in the existing law relating to land tenures in force in a particular area, there is no difficulty and the word "estate" as defined in the exiting law would have that meaning for that area and there would be no necessity for looking for a local equivalent. But where the word "estate" as such is not defined in an existing law it will be necessary to see if some other term is defined or used in the existing law in a particular area which in that area is the local equivalent of the word "estate". In that case the word "estate" would have the meaning assigned to that term in the existing law in that area. To determine therefore whether a particular term defined or used in a particular area is the local equivalent of the word "estate" as used in article 31 A (2) (a) it is necessary to have some basic concept of the meaning of the word "estate" as used in the relevant Article of the Constitution. It seems to us that the basic concept of the word "estate" is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part. If therefore a term is used or defined in any existing law in a local area which corresponds to this basic concept of "estate" that would be the local equivalent of word "estate" in that area. It is not necessary. that there must be an intermediary in an estate before it can be called an estate within the meaning of article 31 A (2)(a); it is true that in 780 many cases of estate such intermediaries exist, but there are many holders of small estates who cultivate their lands without any intermediary whatever. It is not the presence of the intermediary that determines whether a particular landed property is an estate or not; what determines the character of such property to be an estate is whether it comes within the definition of the word "estate" in the existing law in a particular area or is for the purpose of that area the local equivalent of the word "estate" irrespective of whether there are intermediaries in existence or not. This in our opinion, is also borne out by consideration of the relevant decisions of this Court to which we will now turn. The decisions of this Court where this question has been considered lend support to the construction of the word "estate" for which the respondent contends. In Sri Ram Ram Narain Medhi vs The State of Bombay (1) the constitutional validity of the Bombay Tenancy and Agricultural Lands (Amendment) Act 1956 (Bombay Act XIII of 1956) amending the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948), was considered by this Court. Section 2(5) of the Bombay Land Revenue Code, 1879, had defined the word "estate" as meaning any interest lands and the aggregate of such interested vested in a person or aggregate of persons capable of holding the same. This Court held that the Bombay Land Revenue Code was the existing law relating to land tenures in force in the State of Bombay and that the definition of the word "estate" as prescribed by s.2(5) had the meaning of any interest in land and it was not confined merely to the holdings of landholders of alienated lands. The expression applied not only to such estate holders but also to land holders and occupants of unalienated lands". It would be noticed that section 2(5) referred to "any 781 interest in lands" and the expression "lands" was undoubtedly capable of comprising within its ambit alienated and unalienated lands. The argument urged by the petitioner in that case in attacking the validity of the impugned Act in substance was that having regard to the narrow denotation of the "estate" used in article 31A(2)(a) the broader construction of section 2(5) of the Bombay Land Revenue Code should not be adopted, and in construing what is the local equivalent of the expression "estate" in Bombay the narrow construction of section 2(5) should be adopted and its operation should be confined to alienated lands alone. This contention was rejected and it was held that the estate as defined was not confined merely to the holdings of landholders of alienated lands. It is true that the decision proceeded substantially on the interpretation of section 2(5) of the local Act ; but it may be observed that if the denotation of the word "estate" occurring in article 31A(2)(a) was as narrow as is suggested to by the petitioner before us this Court would have treated that as a relevant and material fact in considering the contention of the petitioner before it that the narrow construction of section 2(5) should be adopted. There is no doubt that the property which was held to be an estate in Medhi 's case (1) would not be an estate within the narrow meaning of the word as suggested by the petitioner. In Atma Ram vs The State of Punjab (2), this Court had occasion to consider the meaning of the expression "estate" in the light of the Punjab Land Revenue Act, 1887. Section 3(1) of the said Act had provided that an "estate" means any area (a) for which a separate record of rights has been made, or (b) which has separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed, or(c) which the State Government may by general rule or special order, declare to be an estate. Section 3(3) which is also relevant provided 782 that "holding" means a share or portion of an estate held by one landowner or jointly by two or more landowners. One of the arguments urged by the petitioner before the Court was that a part of the holding was not an estate within the meaning of section 3(1) of the local Act. This argument was rejected. In dealing with the question as to whether the property held by the petitioner was an estate under the article 31A(2)(a) it became necessary for the Court to consider the amplitude of the expression "any estate or of any rights therein" in article 31A (1) (a). Sinha J., as he then was, who spoke for the Court, has elaborately examined the different kinds of land tenures prevailing in different parts of India, and has described the process of sub infeudation which was noticeable in most of the areas in course of time. An "estate", it was observed, "is an area of land which is unit of revenue assessment and which is separately entered in the Land Revenue Collector 's register or revenue paying or revenue free estates". "Speaking generally", observed Sinha, J., "It may be said that at the apex of the pyramid stands the State. Under the State, a large number of persons variously called proprietors, zamindars, malguzars, inamdars and jagirdars, etc., hold parcels of land, subject to the payment of land revenue designated as peshkash, quitrent or malguzari, etc., representing the Government demands by way of land tax out of the usufruct of the land constituting an state, except where the Government demands had been excused in whole or in part by way of reward for service rendered to the State in the past, or to be rendered in the future" (p. 759). "Tenure holders", it was observed, "were persons who took lands of an estate not necessarily for the purpose of self cultivation, but also for settling tenants on the land and realising rents from them. Thus, in each grade of holders of land, in the process of sub infeudation the holder is a tenant under his superior holder 783 the landlord, and also the landlord of the holder directly holding under him" (pp. 760, 761). Having thus considered the background of the land tenures in Punjab and elsewhere this Court proceeded to consider the amplitude of the crucial words "any estate or of any rights therein" in article 31A(1)(a). "According to this decision as the connotation of the term "estate" was different in different parts of the country, the expression "estate" described in cl. (2) of article 31A, has been so broadly defined as to cover all estates in the country, and to cover all possible kinds of rights in estates, as shown by sub cl. (b) of cl. (2) of article 31 A" (p. 762). "The expression `rights ' in relation to an estate has been given an all inclusive meaning comprising both what we have called, for the sake of brevity, the horizontal and vertical divisions of an estate. The Provisions aforesaid of article 31 A, bearing on the construction of the expression `estate ' or `rights ' in an estate, have been deliberately made as wide as they could be in order to take in all kinds of rights quantitative and qualitative in an area coextensive with an estate or only a portion thereof" (p. 763). Further observations made in the judgment in regard to the effect of the addition of words "raiyats" and "under raiyats" in cl. (b) may also be usefully quoted : "The expression `rights ' in relation to an estate again has been used in a very comprehensive sense of including not only the interests of proprietors or Sub proprietors but also of lower grade tenants, like raiyats or under raiyats, and then they added, by way of further emphasising their intention, the expression `other intermediary ', thus clearly showing that the enumeration of intermediaries was only illustrative and not exhaustive" (p. 765). Thus, this decision shows that the amendments made by the constitution First and Fourth Amendment Acts of 1951 and 1955 were intended to enable the State Legislatures to undertake the task of agrarian reform with the object of abolishing intermediaries 784 and establishing direct relationship between the State and tillers of the soil; and it is in that context that the would "estate" occurring in cl. (2) of article 31 A was construed by this Court. What we have said about the decision in Medhi 's case (1) is equally true about the decision in the case of Atma Ram (2). The property which was held to be an estate was not an estate in the narrow sense for which the petitioner contends. In Shri Mahadeo Paikaji Kolhe Yavatmal vs The State of Bombay and Shri Namadeorao Baliramji vs The State of Bombay (3) this Court had to consider the case of the petitioners in Vidarbha who held lands under the State and paid land revenue for the said lands thus held by them. The relevant provisions of the Madhya Pradesh Land Revenue Code. 1954 (II of 1955) were examined and it was held that though the word "estate" as. such had not been employed by the said Code the equivalent of the estate had to he determined under article 31 A (2) (a), and as a result of provisions of sections 145 and 146 of the said Code it was held that the estates held by the petitioners satisfied the test of the local equivalent of "estate" as contemplated by article 31A (2) (a). In The State of Bihar vs Rameshwar Pratap Narain Singh(4), this Court had occasion to consider the scope and effect of the expression "rights in relation to an estate" used in cl. (2) (b), and it held that "in the circumstances and in the particular setting in which the words `raiyat ' and `under raiyat ' were introduced into the definition it must be held that the words "or other intermediary" occurring at the end do not qualify or colour the meaning to be attached to the tenures newly added". It is in the light of these decisions that we must now proceed to examine the character of the properties with which the petitioner is concerned. As we have already seen the petitioner owns about 900 acres of land which are classified 785 as Pandaravaka holdings and about 350 acres which are described as Puravaka holdings. In meeting the respondent 's contention that these lands are an estate under cl. (2) (a) of article 31A the petitioner has alleged that the Pandaravaka tenure represents lands of which the State was in the position of the landlord and whatever rights other persons possessed were directly derived from the State. Of the several classes of Pandaravaka tenure the most common is the verumpattom and most of the petitioner 's lands falling under the Pandaravaka tenure belong to this class. The petitioner 's case is that his liability is to pay rent to the State calculated as a proportion of the gross yield of the properties ; and so the lands held by the petitioner as tenant under the State cannot be said to be an estate under cl. (2) (a). He is not an intermediary between the State and the tiller of soil and so is outside the purview of cl. (2) (a). It has also been alleged by the petitioner that his properties cannot be said to be an estate even in the sense of a local equivalent of the term "estate" because there is no unified record of rights over the area in question; "each survey number is often divided into several sub numbers and representing holdings that do not often take in more than a few cents has his own record of rights and separate assessment register". It is for these reasons that the petitioner resists the application of cl. (2) (a) to his Pandaravaka Verumpattom lands. No clear and specific plea has been expressly made by the petitioner in regard to Puravaka lands. In that connection the petitioner has, however, alleged that the Janmam is another peculiar feature of the land system in Kerala which it is not easy to define since a good deal of ambiguity attaches to the term. However he contends that the Janmam right has to be understood in its limited and technical sense as taking within its scope a particular form of land holding known as the known tenancy. 786 According to the petitioner the Janmam right included in cl. (2) (a) can take in only the rights and liabilities controlled and created by the two Tenancy Acts to which he has referred. That is how the petitioner contends that the Puravaka lands are also outside the purview of cl. (2) (a). It is common ground that the proclamation issued by his Highness Sir Rama Varma Raja of Cochin on March 10, 1905, is the relevant existing law for the purpose of deciding whether the agricultural properties of the petitioner constitute an estate under cl. (2)(a). It is therefore, necessary to examine the scheme of this proclamation and decide whether in view of the characteristics and attributes of the properties held by the petitioner they can be said to constitute a local equivalent of an estate under cl.(2)(a). This proclamation consists of twenty eight clauses which deal broadly with all the aspects of land tenure prevailing in the State of Cochin. The preamble to the proclamation recites that the Raja had already ordered that a complete survey embracing demarcation and mapping and the preparation of an accurate record of titles in respect of all descriptions of properties within his entire State shall be carried out, and it adds that directions had been issued that a revenue settlement or revision of the State demand shall be conducted in accordance with the principles laid down by the proclamation. Clause 6 enumerates the tenures of lands prevailing in the State. Under this clause there are two major tenures (1) Pandaravaka and (2) Puravaka. The former are held on one or the other of six varieties of tenures; of these we are concerned with the verumpattom sub tenure. This clause provides that the Pandaravaka verumpattom tenure shall be deemed as the normal tenure for settling the full State demand and that the other tenures shall be treated as favourable tenures and settled on the lines indicated in cls. 14 to 17. Clause 7 says that the present rate of assessment 787 on Pandaravaka verumpattom nilas varies from one eighth para to twelve paras of paddy for every para of land; and it adds that such a vast disparity of rates is indicative of unequal incidence under the existing revenue system. That is why the clause proceeds to lay down that the State demand should bear a fixed proportion to the produce a land is capable of yielding and so it prescribes that under the Pandaravaka verumpattom tenure the holder should pay half of the net produce to the State. The clause then proceeds to provide for the method in which this half of the net produce should be determined. Clauses 11 and 12 deal with the assessment on tree. Clause 13 is important. It says "at present holders of Pandaravaka verumpattom lands do not possess any property in the soil. As we are convinced that proprietorship in the soil will induce the cultivator to improve his land and thereby add to the prosperity of the land, we hereby declare that the verumpattom holders of lands shall, after the new settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue provided that the rights to metals, minerals possessed by the State in all lands under whatever tenure they are held are reserved to the State". Under cl.18 it is provided, inter alia, that in the case of Pandaravaka lands held on the erumpattom tenure the settlement shall be made with the present holder of the land and in regard to Puravaka land with the Janmam. Clause 22 prescribes the procedure and the time for the introduction of settlement. It requires that before the introduction of the new rates of assessment a rough patta shall be issued to each of the landholders showing the relevant detail of his holdings and the assessment to be paid by him hereafter. The object of preparing such a patta is to 788 give an opportunity to the landholders to bring to the notice of the authorities their objections if any. The objections are then required to be heard before the final entries are made. Clause 26 declares that the new settlement shall be current for a term of thirty years. This has been done with a view to secure the utmost freedom of action to the landholders in improving their properties and turning them to the best advantage according to their means and inclination. Clause 27 deals with escheats; and cl. 28 makes general provisions as to the formation of a new land record including reassessment of land and the registration of titles "a work calculated to promote the well being of a State". It would thus be seen that under cl. 13 the person holding lands on the Pandaravaka verumpattom tenure is not a tenant. He is given the proprietary right in the soil itself, subject of course to the rights as to metals and minerals reserved in favour of the State. Indeed, the whole scheme of the new proclamation appears to be to change the character of the possession of the Pandaravaka verumpattom tenure holder from that of a tenant into that of a proprietor holder. It is true that he is made liable to pay half of the net produce and that may appear to be a little too high, but the measure of the levy will not convert what is intended to be a recovery of assessment into a recovery of rent. The proprietor of the land held on Pandaravaka verumpattom tenure is nevertheless a proprietor of the land and he holds the land subject to his liability to pay the assessment to the State. It is not difficult to imagine that in a fairly large number of lands held by Pandaravaka verumpattom tenure holders the holders in turn would let out the lands to the cultivators and thus would come into existence a local equivalent of the class of intermediaries. Land revenue record is required to be prepared by the proclamation and relevant entries showing the extent of the properties belonging to 789 the respective holders and the details about their liability to pay the assessment are intended to be shown in the said record. In our opinion, it would not be reasonable to hold that the lands held by the petitioner under the Pandaravaka verumpattom tenure do not confer on him the proprietary right at all but make him a tenant of the State. In the proclamation there does not appear to be a provision for forfeiture or surrender and the scheme adopted by the proclamation suggests that the amount due from the tenure holder by was of assessment would presumably be recovered as arrears of land revenue and not as rent. Therefore, we are inclined to hold that the Pandaravaka Verumpattom can be regarded as a local equivalent of an estate under cl. (2) (a) of article 31A. The position with regard to Puravaka lands is still more clear. Clause 14 of the proclamation enumerates four kinds of more favourable tenures. The first of these is the class of Puravaka lands. Clause 15 provides that in the case of Puravaka lands a third party called Janmi is recognised as owning proprietorship in the land and therefore entitled to share the produce with the cultivator and the sirkar. Then the clause describes the mode in which share of the State or its demand on these Puravaka lands is calculated, under the previously existing land system; and it provides new rates of assessment payable in respect of the Puravaka tenure. The Puravaka tenure in the State, the clause adds, corresponds to the normal conditions of land tenure in the District of Malabar where, in the recently introduced settlements, the net produce was distributed among the cultivator, the Janmi and the State in the following proportion : 790 __________________________________________________ __________ In Wet Lands In Garden Lands or Vrikshapattom Parambas __________________________________________________ __________ Cultivator 5 out of 15 5 out of 15 Jenmi 4 out of 15 5 out of 15 State 6 out of 15 5 out of 15 __________________________________________________ __________ Since it was thought that the said method of apportionment was fair and equitable the clause adopted the same in the State of Cochin. It would thus be clear that the lands held by the petitioner under the Puravaka tenure satisfy the test of even the narrow construction placed by the petitioner on the term "estate" in cl. (2)(a). Therefore, there can be no doubt that about 350 acres of land held by the petitioner on the Puravaka tenure constitute an estate under cl. (2)(a). The result is that the lands held by the petitioner are an estate under cl. (2)(a), and so the Act in so far as it operates against the holdings of the petitioner is protected under article 31A(1)(a) and so it is not open to the petitioner to challenge its validity on the ground that its material provisions offend against articles 14, 19 and 31 of the Constitution. The writ petition accordingly fails and is dismissed. There will be no order as to costs. AYYANGAR, J. I regret I am unable to agree that article 31A of the Constitution saves the Kerala Agrarian Relations Act, 1960, from challenge under articles 14, 19 and 31 of the Constitution in so far as the said Act relates to the Pandaravaka lands of the petitioner. Before however dealing with this point I consider it proper to add that I entirely agree that the Act was properly enacted by the State Legislature and that the consideration of the remitted bill by the new Legislative Assembly did not violate the provisions of article 20 of the Constitution. In my judgment the terms of article 196 of the Constitution proceed on the basis that the Constitution maker 791 in line with the framers of the Government of India Act, 1935, radically departed from the theory of the British Constitutional Law and the practice obtaining in the Parliament of the United Kingdom as regards the effect of dissolution of the Houses of the Legislature on bills passed by the House or Houses and pending the assent of the head of the State. Article 196 by its third clause having negatived the English rule that bills pending in the legislature lapse by reason of prorogation, goes on to enact cls. (4) and (5) making special provision for Lapse in the event of not prorogation but dissolution. Clause (5) enacts: "A bill which is pending in the Legislative Assembly of a State or which having been passed by the Legislative Assembly is pending in the legislative Council shall lapse on a dissolution of the Assembly." This clause on its terms applies both to States which have and which do not have a bicameral legislature. In its application to a State without a Legislative Council the relevant words of the clause would read: "A bill which is pending in a Legislative Assembly of a State. . .shall lapse on dissolution of the Assembly". The question that arises on the terms of this clause may be stated thus: Can a bill be said to be pending before the Legislative Assembly when it has gone through all the stages of the procedure prescribed for its passage through the house and has been passed by the Assembly ? Expressed in other words, does the pendency of a bill before the Assembly cease when it has passed through all the stages through which bills pass before the House or is it to be deemed as pending before the House until the bill receives the assent of the Governor or the President, as the case may be the latter event arising when bills are reserved by the Governor for the President 's assent ? Unless it could be contended that a bill 792 is pending in the Legislative Assembly until assent, there could be no scope for the argument based on article 196(5) in support of the position that an unassented bill is still pending in the Assembly. In this context the difference in the terminology employed in article 196(3) and 196(5) requires to be noticed. Whereas article 196(3) speaks of the pendency of a bill in the Legislature of a State which would, having regard to the description of 'Legislature ' in article 168, include the Governor, article 196(5) uses the words 'Legislative Assembly ' as if to indicate that it is only in the event of the bill being pending before that body that it lapses on dissolution. In the face of the provision in article 196(5) there is no justification for invoking the Biritish practice under which bills not assented to before the dissolution of the Houses are treated as having lapsed on that event occurring. If the Governor can assent or refuse to assent to a bill, which has passed through all the stages of consideration by a Legislative Assembly even though that Assembly is dissolved under the terms of article 200, because the bill is a live bill within the terms of that Article, it would follow that he can exercise the other alternative open to him under that Article, viz., to reserve the bill for the President 's assent. If by reason of the language employed in article 196(5) the bill is alive so far, and the President could assent to the bill it would follow that subject to an argument based on the terms of article 201 he can also remit the bill for reconsideration by the Assembly notwithstanding the dissolution. The next question for consideration is whether there is anything in the terms of article 201 which precludes effect being given to the above principle. The Article runs: 793 "201. When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom: Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration. " Considerable stress was laid by the Learned Counsel on the use of the two expressions 'return the bill to the House ' and 'the House shall reconsider it accordingly ' as indicating that the words underlined* unmistakably implied that the consideration of the bill must be by the Assembly which originally passed it. It was in this connection that reliance was placed on the terms of article 172(1) reading (omitting the proviso which is immaterial for the present purpose): "172. (1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly: " The argument was that the Constitution did not envisage the Assemblies having a continuous life but 794 that on the other hand it clearly contemplated different Legislative Assemblies each one having a definite life which ended either automatically at the end of five years or at an earlier period by dissolution and that in the context of this provision, to the words 'return ' and 'reconsider ' employed in article 201 their literal meaning must be attached. It is not possible to accept this construction as to the effect of article 172 on the rest of the provisions in this Part. No doubt, for particular purposes each Assembly is conceived of as having a life of limited duration but it does not follow that the Constitution does not envisage the Legislature as an institution. In this connection I consider it useful to refer to the decision of the Privy Council in Attorney General for New South Wales vs Rennie (1). The question before the Board was as ragards the true construction of a New South Wales statute "The Parliamentary Representatives ' Allowance Act" which by its section 2 made an annual grant to "every member of the Legislative Assembly now serving or hereafter to serve therein". Section 2 of the Imperial Act which enacted the Constitution Act of the Colony provided that "every Legislative Assembly was to continue for five years from the day of the return of writs for choosing the same and no longer, subject to be sooner prorogued or dissolved by the Governor of the Colony", which term was by a later enactment reduced to three years. The Attorney General for New South Wales raised an information seeking a declaration that there were no moneys legally available or applicable to the payment of members of future Assemblies with a prayer that the Auditor General might be restrained from countersigning the authorisation of such payments. The Supreme Court of the Colony dismissed the information whereupon the Attorney General brought the matter in appeal to the Privy 795 Council. The question turned on the meaning of the words 'the Legislative Assembly ' in section 2 of the Act and reliance was placed on behalf of the appellant on the provision for dissolution contained in the Imperial Act. It was contended that the Assembly was a body of limited duration called into existence from time to time and not a permanent and continuous body and that consequently the Act granting the allowance should be construed as applying to the members of the particular Assembly in existence on the date of the Act. Rejecting this argument, Sir, Richard Couch stated: "They think that according to the ordinary use of the term 'legislative assembly it means the assembly created by the Constitution Act which, though liable to be dissolved or to expire by effluxion of time, is an essential part of the constitution of the colony and must be regarded as a permanent body. " I consider these words apt to describe the reference to the "House of the Legislature" in the proviso to article 201. I therefore respectfully concur in the view that the bill was validly passed and that the objection based on an infringement or contravention of article 201 must be repelled. I shall now take up for consideration the merits of the petition. The petitioner is the owner of about 1,250 acres of land in Trichur in the erstwhile princely State of Cochin. Out of this extent, 900 acres are classified in the land records of the State as Pandaravaka Verumpattom lands and the remaining are entered as Puravaka lands. While so the Kerala Legislature enacted the Kerala Agrarian Relations Act, 1960 (Kerala Act IV of 1961), providing for the acquisition of certain types of agricultural lands in the State beyond the specified maximum extents laid down in the statute and 796 on payment of compensation as determined by it. The details of this legislation are set out and their impact on the owners of landed property in the State are dealt with in full in the judgment in Writ Petitions 114 and 115 which is being pronounced today. In the circumstances it is not necessary to say more about the enactment than point out that it seriously interferes with the rights of landowners in a manner which, as held in the judgment in the other petitions, is violative of the rights guaranteed to citizens by Part III of the constitution. For the respondent however the main defence on this petition is based on article 31A, the submission being that the lands of the petitioner by reason of the tenure by which he holds them, constitute an "estate" within the definition of that term in article 31A(2)(a). As the tenures which are involved in the case cover considerable areas of the former State of Cochin, and as the implications arising from any decision as regards these tenures might affect other areas, particularly in South India the effect of the acceptance of the submission by the respondent would be far reaching. I have therefore considered it proper to deal with matter from a wider angle than would be necessary if the effect of our decision would be confined to tenures of infrequent occurrence. The two tenures into which the lands held by the petitioner fall are, as stated earlier, Pandaravaka Verumpattom and the Puravaka, but before considering their characteristics it will be useful to attempt a picture of the general system of landholding in Malabar. As is well known, Malabar comprising the territories of the former princely State of Travancore & Cochin and the contiguous district of Malabar in the former Presidency of Madras, was among the few areas in India in which freehold rights in land were recognised. This exclusive right and hereditary possession and usufruct of the soil was denoted by the term "Jenm" 797 and the holder was designated the Jenmi or the Jenmikaran. The Jenmis had full and obsolute property in the soil. All land which was not the property of Jenmis or ceased to be theirs such as by forfeiture, were held by the State. These lands were let for rent to cultivators on terms of paying rent. The assertion by the State to the proprietorship of the soil which carried with it a denial of the right of alienation by the tenant of the leased lands and so of the right to hereditary enjoyment was besides being contrary to the accepted theory of the Hindu law givers, was also productive of grave economic ills. According to the Hindu Law givers starting from Manu, property in the soil arose out of occupation and cultivation. The texts which expound this position are set out and discussed by Westropp, C. J., in Vykunta Bapuji vs Government of Bombay(1) (See also Sundaraja Iyengar Land Tenures in the Madras Presidency, pp. 5 to21). According to this theory the King was not the owner of cultivated land but the proprietary interest in it vested in the cultivator, the right of the King being merely to the Raja bhagam which represented various proportions of the produce, sometimes thought of as being a sixth and at other times at higher proportions ranging up to a half. As observed by Subramania Iyer, J., in Venkata Narasimha vs Kotayya (2). "For, in the first place, sovereigns, ancient or modern, did here set up more than a right to a share of the produce raised by raiyats in lands cultivated by them, however much that share varied at different times. And,in the language of the Board of Revenue which long after the Permanent Settlement Regulations were passed, investigated and reported upon the nature of the rights of ryots in the various parts of the Presidency, 'whether rendered in service, in money or in kind and whether paid to rajas, jagirdars, zemindars, poligars, mutadars 798 shro triemdars, inamdars or to Government officers, such as tahsildars, amildars, amins or thannadars, the payments which have always been made are universally deemed the due of Government. ' (See the Proceedings of the Board of Revenue, dated 5th January, 1818, quoted in the note at page 223 of Dewan Bahadur Srinivasa Raghava Ayyangar 's 'Progress in the Madras Presidency '). " This proprietary interest of the cultivator was in its true sense a property right being capable of alienation and of hereditary enjoyment. At the time of Permanent Settlement Regulation in Bengal (1793), and subsequently when its Madras counterpart was enacted (Regulation XXV of 1802), there was a great deal of controversy as to whether the East India Company as the Ruler was or was not entitled to the proprietary rights to the soil in the country. In the words of Westropp, C. J., in Vykunta Bapuji vs Government of Bombay (1) involved in this "was the question as to the character in which native governments claimed, from the occupants of the land, payments either in money or in produce in respect of the land. Were these payments rent or revenue ? Some maintained that those payments were rent, not revenue; because, it was said, the land could only be occupied and cultivated by the permission of the sovereign, and that such produce, as there may be in excess of what sufficed for the bare subsistence of the cultivators and for the expenses of cultivation, is the property of the sovereign. Others maintained that the sovereign was only entitled to a fixed portion of the produce, and that the surplus beyond that portion, plus the subsistence of the rayuts (cultivators) 799 and the cost of cultivation, belonged to a class of great landlords between the sovereign and the rayuts, which intermediate class consisted of zamindars, talukdars or similar personages; while others again strongly contended that, subject to a land tax payable to the sovereign, the property in the soil was vested in the cultivator, sometimes in the form of village communities holding corporately, at other times individuals holding in severalty, or jointly as members of an undivided family. In 1793, (either upon the ground that the soil was vested in the sovereign power, and that it was expedient that, by that power, a landed aristocracy should be created, or upon the ground, that the land, subject to the revenue assessment i.e., the king 's (or State 's share of the produce, ought to be publicly recognized as vested in the class of zamindars, & c., as landlords) the permanent settlement in Bengal, Bihar and Orissa was made by the Government of Lord Cornwallis, by recognizing the zamindars, & c., as the proprietors of the soil, and entitled to transfer it, and by fixing, once for all, the land tax payable by them to the State at an immutable annual rate. " In 1796 the Government of Madras declared that "it is the first feature in all the Governments of India, that the Sovereign, whether he be a Mussulman or Hindoo is lord of the soil; and hence it is that no alienation of lands from the property of the circar, or rather no possession of land whatever is valid without a written instrument from the superior lord; and this distinction has invariably followed the conquests of all nations who have established themselves in India". This statement was directly contrary to accepted practice and the consciousness of the cultivator in Madras. It is not therefore a matter for surprise 800 that in answer to this declaration of the Government, the Board of Revenue at once pointed out that "there were hereditary cultivators on lands with the right of making any disposition of them by sale, mortgage or otherwise as long as they paid the Government revenue, and that they only could not make any alienation of them to the exclusion of the royal share of the revenue. " Acting on the view that the Crown was the proprietor of the soil, the Birtish Government purported to confer proprietary rights in the soil on the zamindars under the Permanent Settlement the preamble to which referred to the reservation by the ruling power of the "implied right and actual exercise of the proprietary right to possession of all lands whatever" and by section 2 purported to vest in the zamindars the proprietary right to the soil. It was however found that this interfered with the established rights of cultivators and Madras Regulation IV of 1822 was passed to declare that the provisions of Regulation XXV of 1802 were not intended to affect the actual ryots in cultivation of lands. It might be added that the Privy Council ruled in Collector of Trichinapally vs Lekkamoni (1) that the theory underlying these words in the Regulation were not sustainable and that there were proprietary rights in land not traceable to or derived from the sovereign. The introduction of the Permanent Settlement with the creation of a class of zamindars as in Bengal was not considered to be a beneficial system by the Government of Madras and so after the grant of some sanads under Madras Regulation XXV of 1802 mostly in recognition of ancient titles the creation of new permanently settled estates was stopped and in its place, the system of revenue administration associated with the name of Sir Thomas Munro known as the ryotwari system was adopted. According to Munro there was 801 no need for the interposition of an intermediary between the State and the actual cultivator, particularly as it was clear that the system meant that the zamindars enjoyed what the cultivator parted with to the State; in other words, the difference between the rent paid by the actual cultivator, viz., the melwaram and the peishcush or the Jama fixed by the zamindar or proprietor was so much profit for the middleman and therefore pro tanto a diminution of the amount which would have accrued to the State. Besides, Munro considered that on economic grounds and with a view to increase agricultural production it was necessary for the State being in touch with the actual cultivator. For these reasons he formulated the "ryotwari system" and introduced it in several areas of the Madras Presidency and Coimbatore district adjoining the State of Cochin being almost the first among the districts where the system was introduced. The basic and essential feature of the system was that the fixation of the revenue assessment payable by the cultivator had to be proceeded by a survey of the a land which included the ascertainment of the productivity of the soil and that the assessment should be based on what was known as 'tharam ' (or quality) classification. The assessment thus began to be based on scientific data and principles and was so designed as to leave a sufficient margin to the cultivator to induce him to remain on the land and be assured of a good share in increased production resulting from the employment of his labour and capital. The terms on which the ryot held the land was contained in the patta issued to him on behalf of the Government and this specified the extent of land held by him as well as the amount of the assessment and the time when the instalments had to be paid. This was not however considered to be any document of title, because the ryot had the property in him and his interest was a proprietary interest in the soil and so capable 802 of being alienated and of being transmitted to his heirs. This however was not anything new and it was not as if the interest of the cultivator was not alienable before the ryotwari system was introduced. Before that date however, the assessment of the land was both heavy in most parts and unequal not being based on the productive capacity of the soil, as to leave little or no margin to the cultivator. Besides the predations of revenue and the severity of the tax was dependent on the exigencies and necessities, if not the whims of the ruler and in such a situation, even though technically cultivated land was capable of alienation there being no ban on alienation, still having regard to the meagre margin left to the owner and the fear of increased taxation based on no principle, no purchaser could be found; though owing to the impossibility of finding a more profitable use for manual labour apart from the sentimental attachment to land, the actual cultivator clung to his holding. But when with the advent of a system of assessment based on fixed and scientific principles which left a sufficient margin for the cultivator, and there was no fear of sudden increases of assessment, land became a marketable commodity investment in which was rendered worthwhile. Notwithstanding that in Malabar absolute ownership of the soil by the Jenmi where the land was the property of individuals and of the State where it was the owner, was a characteristic of the landholding, still from a fairly early date after the British conquest of the neighbouring areas the concept of the cultivator with whom the State entered into direct relations being conceded the proprietorship of the soil slowly permeated. In this connection I might usefully refer to a proclamation of the ruler of Travancore of 1865 (1040 M. E.) regarding Sarkar pattom lands, with the observation that subject to variations 803 dependent on local usages, the system of land tenure and the concepts as regards the rights of property in land were substantially similar in Travancore and Cochin. Sarkar pattom lands were what might be termed 'Crown lands ' of which the ruler was deemed to be the Jenmi or the landlord. Previous to the proclamation the lands were legally capable of being resumed by the ruler, though this was seldom done and the cultivators were not legally entitled to transfer their rights and where this was done the Government had the right to ignore the transaction. The fact that the cultivator was conceived of as having no proprietary interest on the land also bore adversely on the State since the State was deprived of the means of realising any arrears of revenue by bringing the holding to sale. It was to remedy this situation that the proclamation was issued and the preamble and its terms carry the impress of the impact of the ryotwari system of Madras. The proclamation reads: "Whereas we earnestly desire that the possession of landed as well as other property in Our Territory should be as secure as possible; and whereas We are of opinion that, with this view Sirkar Pattom lands can be placed on a much better footing than at present so as to enhance their value; we are pleased to notify to our Ryots 1st. That the Sirkar hereby and for ever surrenders, for the benefit of the people, all optional power over the following classes of lands, whether wet, garden or dry, and whether included in the Ayacut accounts or registered since: Ven Pattom, Vettolivoo Pattom, Maraya Pattom, Olavoo Pattom, Mara Pattom, 804 and all such Durkast Pattom, the tax of which is understood to be fixed till the next Survey and assessment. 2ndly. That the Ryots holding these lands may regard them fully as private, heritable, saleable, and otherwise transferable, property. 3rdly. Accordingly, the sales, mortgages, & c., of these lands will henceforward be valid, may be effected on stamped cadjans, and will be duly registered. The lands may be sold for arrears of tax, in execution of decrees of Courts and such other legitimate purposes, and may also be accepted as security by the Sirkar as well as by private individuals. 4thly. That the holders of the lands in question may rest assured that they may enjoy them undisturbed so long as the appointed assessment is paid. 5thly. That the said holders are henceforth at full liberty to lay out labour and capital on their lands of the aforesaid description to any extent they please, being sure of continued and secure possession. . . . " The language employed in the proclamation is of significance. It speaks of the relinquishment or withdrawal of the right of the State and not of the conferment of a right on the ryot so as to render the ryot a grantee from the State, just in line with the Hindu Law theory of the proprietorship of the soil vesting in the occupant cultivator. With this background, I shall proceed to consider the nature of the tenures Pandaravaka and Puravaka with which this petition is concerned. The two tenures are quite different in their origin and essential characteristics and so have to be separately dealt with. Pandaravaka lands are those in which the State held proprietary rights the 805 name being derived from Bandara or the treasury, while in regard to the Puravaka, they were lands in which the proprietorship vested in the Jenmi, but which were under the cultivation of tenants on whom the State imposed land revenue. Putting aside for the moment the Puravaka lands, the Pandaravaka lands might be approximated to the Crown lands dealt with by the Travancore Proclamation of 1865 already referred to. The terms on which the tenants held the right of the Crown were almost the same as in the other case. The evils which the system gave rise to, the economic insecurity of the tenant and the consequent lack of incentive on his part to put his best exertion on the land and the resultant loss to the state in the shape of revenue as well as the rise of a contented peasantry were exactly parallel to the situation which faced the ruler of Travancore leading to the proclamation of 1865. It was in these circumstances that the ruler of Cochin issued a proclamation on March 10, 1905, which defined with precision the rights of the State and of the cultivator in regard to these lands and it is the submission of the learned Attorney General that the effect of this proclamation is to render the Pandaravaka and Puravaka lands held by the petitioner "estates" within the meaning of article 31A(2) of the constitution as it now stands. It is therefore necessary to set out in some detail the terms of this proclamation. The preamble to the proclamation recites the fact that the State demand had not been fixed either with reference to the actual measurements of the land or on any fixed or uniform principles and that a revision of the State demand based upon a correct measurement of lands and definite principles, fair alike to the State and "our" agricultural population, is desirable in the interest of a sound revenue administration. It then proceeds to state 806 that a survey which included the demarcation, mapping and the preparation of an accurate record of titles in respect of all descriptions of properties was to be carried out and that a Settlement or revision of the State demand would be conducted in accordance with the principles laid down by the proclamation. In passing it may be mentioned that this is reminiscent of the despatches of Thomas Munro in which he expatiates upon the need of a proper survey and a correct definition of the principles upon which land revenue shall be assessed and that the quantum of revenue should be such as while providing for a fair share to the State, should leave enough for the cultivator to live upon and offer an inducement to him to increase the output of his fields in which event the surplus available to him would be more. In particular I might refer to a passage in a despatch which is extracted by Westropp, C.J., in Vykunta Bapuji vs Government of Bombay (1) reading: "When the land revenue is fixed and light, the farmer sees that he will reap the reward of his own industry: the cheerful prospect of improving his situation animates his labours, and enables him to replace in a short time the losses he may sustain from adverse seasons, the devastations of war, and other accidents. " Paragraph 5 of the proclamation directs that lands, whether wet or dry, were to be classified with reference to the nature of their soils in accordance with the table of classification prescribed in the Madras Settlement Manual which is sufficiently indicative of the close correspondence between the ryotwari system and mode of fixation of land revenue and the principles underlying it as prevailed in the neighbouring Presidency of Madras. Paragraph 6 reads: "Under the present land revenue system of the State, lands are held under two main 807 tenures, viz., Pandaravaka and Puravaka. . " At this stage it is necessary only to add that the proclamation does not deal with the rights as between the State and Jenmis, i.e., that class of land owners who were entitled to a freehold interest in the land as explained earlier. I shall deal later with special legislation with reference to Jenmis in the other princely State which is a constituent of present State of Kerala in its proper place. Paragraph 6 proceeds to enumerate the six subsidiary classifications of the Pandaravaka tenure and enumerates the Verumpattom type as the first among them and this type is taken as the standard for fixing the land revenue of the other categories which, it might be mentioned, are favourable tenants, the State demand being reduced. To these others which partake of the nature of grants of land revenue very different considerations would apply. The lands of the petitioner held on Pandaravaka tenure, it should be added fall within the sub category of Verumpattom lands. The proclamation then proceeds to state: "The revenue paid to the State varies according to the nature of the tenure, i.e., the six sub classes. It is however only the Pandaravaka Verumpattom lands which pay the full pattom or share due to the State. We have accordingly decided that the Pandaravaka Verumpattom shall be deemed as the normal tenure for settling the full State demand and that the other tenures shall be treated as favourable tenures and settled on the lines hereinafter indicated. . ." Paragraph 7, after reciting that the rates of assessment on Pandaravaka Verumpattom wet lands vary from place to place, points out that such disparity is indicative of unequal incidence and stating that it was essential that the State demand should 808 bear a fixed proportion to the produce a land is capable of yielding announces the decision that the same shall be half the net produce. The deductions to be made for ascertaining the net produce are indicated. The next clause which is of relevance and importance in the present context is cl. 13 which runs: "13. At present holders of Pandaravaka Verumpattom lands do not possess any property in the soil. As we are convinced that proprietorship in soil will induce a cultivator to improve his land and thereby add to the agricultural prosperity of the country, we hereby declare that our Verumpattom holders of lands shall, after the new Settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue, provided that the rights to metals and minerals, possessed by the State in all lands under whatever tenures they are held, are reserved to the State. " Paragraph 14 onwards deal with favourable tenures and of these we are concerned only with Puravaka lands and it is pointed out in Paragraph 15 that in the case of Puravaka lands the Jenmi is recognised as owning the proprietorship in the land and is consequently entitled to share the produce with the cultivator and the Sirkar, and proceeds to define the State demand in such lands. There are other clauses dealing with other incidents in regard to these tenures and in regard to other interests in the land such as house sites etc. but we are not concerned with them. The proclamation also makes provision for the grant of rough or draft pattas to cultivators and of fair pattas detailing the assessment payable on such lands provisions exactly parallel to the practice and procedure prevailing in the adjoining area of the Madras Presidency. Besides, it also makes 809 provision against any revision of the assessment once fixed before the expiry of 30 years, also in line with the then practice in Madras. I have made this analysis of the provisions of the proclamation for the purpose of emphasizing that what the proclamation intended to achieve was the introduction of ryotwari system of settlement in the place of exactions by the State based on no principles and unrelated to the productivity of the soil and having an unequal incidence for different areas and different lands. The holder of Pandaravaka Verumpattom patta was therefore nothing more or nothing less than the holder of a ryotwari patta in the adjoining Madras State. The only point of difference that could be suggested is this. Under the ryotwari system, the proprietorship of the ryot to the soil is not in theory derived from the State, whereas under the proclamation of 1905, it appears to rest on a grant. In my opinion this makes no difference, because the essential features of the system are the same as those of ryotwari (1) a direct relationship between the State and the cultivator, and with the absence of any intermediary to intercept the raja bhagam or land revenue, (2) there is no grant or alienation of the States ' right to revenue in favour of the grantee. The Puravaka tenure was wholly different. They were lands held by Jenmis. As I shall show later, Jenmam lands were not exempt from the payment of land revenue but the Puravaka tenant had the benefit of a favourable assessment. In other words, in respect of those lands the produce of the land was the subject of sharing as between the actual cultivator, the Jenmi and the State, though the Jenmi had a freehold interest in the land itself The question for consideration now is whether the lands held under a patta by a Pandaravaka Verumpattom and of Jenmam lands by a Puravaka 810 tenant are "estates" within the meaning of article 31 A (2). Before examining the terms of article 31 A (2) as they now stand, it is necessary to refer to the antecedent history which led to the First and the Fourth Constitutional Amendments. Preliminary to this it might not be out of place to briefly explain the circumstances which necessitated the First amendment as pointing to the mischief which that amendment was designed to remedy. Very soon after independence several States initiated land reforms whose object was the elimination of the intermediaries. The Madras Legislature enacted the Madras Abolition of Estates and Conversion into Ryotwari Act, 1948, by which intermediaries in the shape of zemindars, Palayagars, Jagirdars, Inamdars and other such proprietors were eliminated and persons in actual cultivation of the lands under the zemindars were brought into direct relationship with the government by being granted ryotwari pattas in respect of their former holdings. There was similar legislation in Bihar Bihar Act 1 of 1950, as also in some of the other States of the Indian Union. The validity of the several pieces of legislation was challenged in the respective High Courts principally on the ground that the deprivation of the rights of the zamindars etc. effected by these enactments and the principles upon which the compensation payable for the deprivation was determined violated articles 14, 19 and 31 of the Constitution. The first case in which a decision was rendered by a High Court in respect of the contentions urged was by the Patna High Court in Kameshwar Singh vs State of Bihar (1) in which the petition succeeded and Bihar Abolition of Estates Act 1 of 1950 was declared unconstitutional. An appeal was preferred by the State against the judgment to this Court and it was during 811 the pendency of this appeal and with a view to validate the legislation which had been enacted in the several States and which was the subject of attack in several Courts, including this Court, that First Constitutional Amendment by which article 31A was introduced into the Constitution, was enacted. The Constitution (First Amendment) Act, 1951, received the assent of the President on June 18, 1951, but article 31A which was introduced by section 4 of this Act was expressly made retrospective from the commencement of the Constitution. As then enacted article 31A ran: "31A. Saving of laws providing for acquisition of estates: etc. (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. (2) In this article, (a) the expression 'estate ' shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant; (b) the expression 'rights ' in relation to an estate shall include any rights vesting in a proprietor, sub proprietor, under proprietor tenure holder or other intermediary and any rights or privilege in respect of revenue. " 812 In addition the First Constitution Amendment Act also enacted by its section 5 a further provision article 31B expressly validating the several enactments of the various States which were then under challenge and which were all set out in Sch. 9 of the Constitution. From this collocation it would be seen that whereas article 31B immunised from attack all the pieces of legislation which had been enacted by June 1951, article 31A was intended to render the same types of legislation enacted in future immune from attack, provided that the enactments were reserved for the President 's assent and were assented to by him. It is with this background that one has to approach the construction of article 31A. Clause (1) of article 31A does not present any difficulty in construction with reference to the point now under discussion, because its terms are clear and apply to laws providing for "the acquisition by the State of any estate or rights therein" or "the extinguishment or modification of any such rights". The crucial words here are that the rights which are acquired, extinguished or modified are rights in or in respect of an "estate". If there had been no definition of the expression 'estate ', one might have had to look to the grammatical of literal meaning of the word, and the word might conceivably be understood as including person 's interest in landed property whatever may be the nature or extent of the interest, though the width of this meaning might be controlled by the history of the provision, the antecedent state of circumstances and the mischief which it was designed to overcome. But the enactment has not left this matter for investigation in that manner. Sub clause (2)(a) contains the definition of expression 'estate ' and sub cl. (b) of "rights in relation to an estate". It is obvious that the word 'estate ' in sub cls. (a) and (b) mean the same and is employed to designate identical types of land holding. If the expression "rights in relation to an estate" in sub cl. (b) 813 indicates that it is the "estate" or the right of the intermediary that is comprehended by the use of the words 'proprietor, sub proprietor, under proprietor, tenure holder or other intermediary", clearly the expression 'estate ' in sub cl.(a) must be understood as referring to such types of landholder. It is also worth noting that the words "shall also include any jagir, inam or muafi or other similar grant" in sub cl.(a) have their parallel in sub cl. (b) by the words "any rights or privileges in respect of land revenue. " The net result therefore was that the term 'estate ' signified the land held by an intermediary who stood between the State and the actual tiller of the soil, and also the interests of those in whose favour there had been alienation of the right to revenue, i.e., lands held on revenue free or on favourable tenures. The two sub clauses may now be further examined to determine their content and significance. Taking first sub cl. (a) it is necessary to advert to two matters: (1) the reference to the "local equivalent" of the term 'estate ' in the law existing in any local area, and (2) the denotation of the words 'the existing law in relation to land tenures in force in that area '. In regard to the 'local equivalent ' of the term 'estate ' there is one observation I desire to make. These words were not in the Bill as originally presented to Parliament and were brought in as a result of the suggestion of the Joint Select Committee to which the BIII was referred. In their report the Select Committee stated: "We have amended the definition of an 'estate ' to cover cases where the existing law relating to land tenure is in a regional language for example in Hindi or Urdu and uses the local equivalent of 'estate '. " I am far from saying that if the meaning of the expression were clear the purpose for which the words were used would determine their construction 814 but I am drawing attention to this passage from the report of the Joint Select Committee for pointing out that by the use of the expression 'local equivalent ' the central concept of an 'estate ', as would be clear from the terms of sub cl. (b), which in effect is a further definition of the term 'estate ' was not intended to be departed from. Next as to the meaning of "in the existing law in relation to land tenures". These words raise for consideration the question as to what constitutes "a land tenure". If one had to go merely by the grammatical meaning merely of 'tenure ' derived from the Latin 'tenere ' to hold, any kind of right or title by which property is held would be included, the only requirement would be that the property should be held of another. In that wide sense it would include the case of land held under an ordinary tenancy under a landlord under the Transfer of Property Act. Obviously that is not the sense in which the word is employed in the clause. It has therefore to be understood as comprehending that type of "holding" where the holder is an intermediary between the State and the tiller, or is otherwise the grantee of land revenue holding the land under a favourable tenure. If this is the essential feature of the concept of an 'estate ' under cl. (2), the expression 'land tenure ' must in the context mean the 'tenure ' under which an 'estate ' as defined is held. To read it otherwise and understand 'land tenure ' as designating any system of landholding, whether or not such system conforms to the central and essential concept of estate, would not be correct. Such an interpretation would result in anomaly that in an existing law in force in a local area which uses the word 'estate ' and includes within that definition particular tenures, only they and none also are included, but if such law does not refer to a tenure as an 'estate ' then it comprehends any 815 holding of land under Government whatever be the nature of the tenure. That would constitute a radical departure from the purpose of the First Amendment and a construction which is not compelled by the words, but on the other hand contradicted by the context and setting in which they occur. This leads me to the case where an "existing law in relation to land tenures" uses the term 'estate ' and defines it in a particular manner and that definition includes not merely the proprietary rights of intermediaries or others holding land on favourable tenures as described in sub cl. (b) but also others who hold properties in their own right and describes the land holding of these others also as 'estates '. The question would then arise whether literal effect has or has not to be given to the words 'defined as an estate under the law relating to land tenures ' occurring in sub cl. One possible view to take would be that having regard to the central concept of an 'estate ' as signifying the rights in land of an intermediary etc. , those whose rights in land did not involve any assignment of the Raja bhagam but were in direct relationship with the State and subject to the payment of the full assessment of the revenue lawfully imposed upon it, could not be termed to have an interest in an 'estate ', nor the land held by them to fall within the concept of an 'estate ' as comprehended in sub cl. The other view would be that if the operative terms of article 31A and in particular the definition of "an estate" contained in cl. (2)(a) unambiguously covered cases of non intermediaries also, effect would have to be given to the terms used for it is a cardinal rule of interpretation that the operative words of an enactment, and in this must be included the terms of the Constitution, cannot be controlled by reference to the object for which the provision was introduced where the words are unambiguous. If a law in force in any local area 816 at the commencement of the Constitution which was "a law in relation to land tenures" contained the definition of an 'estate ' then every species of land holding which fell within the definition and was comprehended by such law relating to land tenure would, for the purpose of the Constitution be comprehended within the ambit of an 'estate ' and it might be no answer in regard to any particular species of land tenure that its holder was not an intermediary. I shall have occasion to refer to the decisions which turn on this aspect of the matter a little later. Apart from the exceptional cases just now mentioned where one is faced with a definition of 'an estate ' in an existing law, I consider that the First Amendment to the Constitution did not bring within the definition of 'an estate ' the holdings of persons other than intermediaries or those who held land under grants on favourable tenures from Government Jagirdar, Inamdar, Muafidar, etc. As pointed out by Venkatarama Ayyar, J., speaking for this Court in Thakur Amar Singhji vs State of Rajasthan (1): The object of article 31A was to save legislation which was directed to the abolition of intermediaries so as to establish direct relationship between the State and the tillers of the soil. . " I shall now turn to sub cl. (b) and to the terminology employed in it to define 'rights in relation to an estate ' and examine how far this definition affects the content of cl. (a) as above explained. In the first place as already noticed, the use of the word 'estate ' in the clause serves to bring into it the concept of an 'estate ' as defined in cl. (a) pointing to the inter dependence of the two clauses necessitating their having to be read together. The second point requiring advertance is as regards the definition purporting to be inclusive and not exhaustive. The question arising therefrom may be 817 posed thus: Does the definition include any other type of interest besides those enumerated, particularly of a different nature or characteristic which could not be comprehended within the extension brought in by the words 'or other intermediary '. I am clearly of the opinion that it does not and that the word includes ' is here used in the sense of 'means and includes '. In this connection I would usefully refer to the observations of Lord Watson delivering the judgment of the Privy Council in Dilworth vs Commissioner for Land and Income Tax (1): "The word 'include ' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include ' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include ', and in that case it may afford an exhaustive explanation of the meaning which for the purposes of the Act, must invariably be attached to these words or expressions. " If therefore the constitutional validity of a legislation extinguishing or modifying the rights either of the Pandaravaka Verumpattomdars who were in the position of a ryotwari pattadar or of the Puravaka holders who held under a Jenmi of Jenmam land had to be tested with reference to 818 article 31A as it stood when it was introduced by the First Amendment, these interests under the proclamation of 1905 would not be held to be an 'estate ' and therefore outside the scope of the protection against the guaranteed fundamental rights. Before examining the effect of the change introduced by the Fourth Amendment to article 31A it might be useful to detail the circumstances which put these tenures outside article 31A under the First Constitution Amendment. Taking the Puravaka tenure first, it ought to be mentioned that as would be seen from the terms of the proclamation of 1905 extracted earlier, Puravaka lands were those in the ownership of the Jenmi but in respect of which he was not directly in cultivation. The Jenmi was considered an absolute proprietor not merely of lands which were cultivated but unlike the ryotwari pattadar also those which were not under his cultivation such as waste lands, forests, etc., and he did not hold land under the State. In other words, his proprietorship to or rights over the land of which he claimed ownership was not traceable to any title derived from the State. But notwithstanding this freehold right that he claimed and enjoyed the State was entitled from the earliest times to assess his lands to land revenue. Exemption from taxation was not any essential condition of Jenmam tenure and the Jenmi was under an obligation to pay what was termed 'Raja bhagam ' which was the equivalent of the expression 'land revenue '. This incidence of Jenmam land did not therefore detract from its character of its being the private and absolute property of the Jenmi. There was legislation in Travancore as regards the liability of the Jenmi to pay the land tax or the Raja bhagam except, of course, in those cases where anr particular land was rendered tax free as a mattey of grace or concession by the ruler. The legislation started with a royal proclamation 1869 (1042 M.E.) dealing with the lands of Jenmis and their relation 819 with their tenants. This proclamation was replaced by Regulation 5 of 1071 (July 3, 1896) which continued in force with various amendments right up to the date of the Act whose validity is now impugned and is referred to in it. By these pieces of legislation the rights of the Jenmi quoad his tenants were regulated, the grounds upon which eviction would take place were laid down and the customary rights enjoyed by either party were, so, to speak, codified. I am pointing this out because the existence of a law regulating the rights of property owners and defining their rights or obligations either quoad the Government in respect of land revenue or as regards persons holding land under them did not by itself render such law one "relating to land tenure" within the meaning of article 31A(2)(a). In order to be such a law it should regulate the rights of persons holding under grants from the government of the Raja bhagom. A law defining or regulating the levy of assessment or revenue on lands held not under such grants from the State would not be such a law. It was for this reason that the interest of Jenmis and the lands owned in Jenmam right did not fall within article 31A as it stood under the First Amendment to the Constitution and which necessitated the Fourth Amendment to which I shall refer later. The position of persons holding lands on Puravaka tenure would not be different from that of the Jenmis. As the Puravaka lands were held not under the State or under a grant from it but under the Jenmis, though liable to pay Raja bhagam, they would not be 'estates '. The case of the Pandaravaka Verumpattomdars would be similar and the lands held by them would also not fall within the category of 'estate. ' This would be so because they like ryotwari pattadars held the lands for cultivation directly from the State, and were niether intermediaries nor persons 820 who held their lands on a favourable tenure as regards the payment of land revenue in other words, they were not alienees of the Raja bhagam to any extent, and were therefore not intended to be affected by the First Amendment. For this purpose it would make no difference whether the origin of the ryot 's proprietary interest in the land be traceable to the Hindu law concept of title based on occupation and cultivation or to the relinquishment by the State under the Travancore Proclamation of 1865 or even to the conferment of proprietary rights by the Cochin Proclamation of 1905. It is only necessary to add that, their being outside the ambit of article 31A(2), and this would equally apply to the interest of the Jenmi, was not due to their tenure not being regulated by enacted law, as distinct from regulation either by the common law of by departmental instructions in the shape of the Standing Orders of the Board of Revenue or other similar bodies. The point next to be considered is regarding the effect of the change brought about by the Fourth Amendment in 1955 which on its terms was also to have retrospective effect from the commencement of the Constitution. Clause 3 of the Act which was substituted for the original cl. 1 of article 31A, provides for various types of legislation interfering with property rights, but in respect of the matter now in question the words in the original cl. 1 referring to "a law providing for the acquisition by the State of an estate of an any rights therein or the extinguishment or modification of any such rights" were left untouched. In regard to the definition of an "estate" contained in cl. 2 the only change effected in sub cl. (a) was the addition of the words "in the States of Madras and Travancore & cochin any Janmam right" after the word "grant" in the clause as it stood and in sub cl. (b) the addition of the words "ryot and under ryot" 821 after the word "tenure holder" in the original clause. After the amendment, the relevant words in article 31A read as follow: "(I) Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights . . shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31: Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. (2) In this article, (a) the expression 'estate ' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any Jagir, inam or muafi or other similar grant and in the Sates of Madras and Kerala, any Janman right; (b) the expression 'rights ' in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. " It is not open to dispute that if the words of the statute are clear their import or content cannot be modified or varied either by way of extension or of 822 diminution by reference to the presumed intention gatherable from the statement of objects and reasons to which I shall refer presently, for it is the enacted words that constitute the record of the intention of the legislature and where this is clear any extrinsic aid is forbidden. Now let us look at the definition of an "estate" in sub cl.(a) where in express terms the lands held by a Jenmi are deemed to be a part of an estate. The words that precede the newly introduced words still retain their original form, with the result that they continue to connot the same idea and their content remains unaltered. The result of this would be that to the class of the lands of proprietors who were intermediaries and of others holding on favourable tenures which was designated as an "estate" under the First Constitutional Amendment, Jenmi lands were by specific ad hoc addition included. If therefore the holding of a ryotwari proprietor was not comprehended within the definition of an estate, the same cannot be included by reason of Jenmi lands being brought in. The argument that a raiyatwari holding has merely by the inclusion of the Jenmi become an "estate" would require the entire clause to be rewritten so as to make it read as embracing all lands which are subject to payment of land revenue to government. I consider this contention so unreasonable and unrelated to the language used in the clause as not to deserve serious consideration. Proceeding next to sub cl. (b), I must point out that it was on the introduction into it of the words 'raiyat and under raiyat ' that almost the entire argument on behalf of the respondent was rested. It is therefore necessary to scrutinize carefully the effect of these words. There is no doubt that if the words 'raiyat and under raiyat ' had been introduced in sub cl.(b) as an independent category of persons whose interests were intended to be covered by the definition, just as the lands held by Jenmis were brought into sub cl. (a) then the words 823 of the definition would have to be given full effect and the expression 'raiyat and under raiyat ' receive the construction urged before us by the respondent. But they are, however, not introduced as an independent category as has been done in the case of the Jenmam right, but are wedged in the midst of the enumeration of the several types of tenures in estates such as those of proprietor, sub proprietor under proprietor and tenure holder persons deriving their title to the interest held by them either under grants by a sovereign or under a title derived from grantees from government, the clause continuing to be wound up by a reference to "other intermediaries". As regards this a few observations may pertinently be made. The first is that even after the Fourth Amendment, "the rights vesting in a proprietor" etc. still continue to be a definition of "rights in relation to an estate" and if the word 'estate ' in cl. (b) has to be read in the light of the definition of that word in cl.(a) no interest other than one in the estate of an intermediary or of a grantee on a favourable tenure and other than one in the estate of a Jenmi would be covered by sub cl.(b). (2) I have already had occasion to point out that raiyats in proprietary estates like those of zamindars etc. did not claim title to hold their lands from the proprietor but according to law, as understood their rights even preceded that of the proprietor, i.e., the rights vested in them even before their proprietor. The interest of such raiyats cannot therefore be comprehended within the expression 'rights in relation to an estate ' which as ordinarily understood would mean 'rights created in an estate or held under the proprietor '. Undoubtedly, the words 'raiyat and under raiyat ' introduced by the Fourth Amendment would comprehend this class of raiyats because they were raiyats in an estate as defined in sub cl.(a). I am pointing this out for the purpose of showing that it is not as if the words 'raiyat and under raiyat ' would be without any 824 meaning if they were not taken to extend to the interest of every raiyatwari proprietor having, direct relationship with the State. In this connection the decision in this Court in The State of Bihar vs Rameshwar Pratap Narain Singh (1) is very relevant. The point in controversy before the Court was this. Under the Bihar Land Reforms Act (1 of 1950), the ex intermediaries were conferred a ryoti interest in certain types of land previously held by them as proprietors. As owners of these lands they had been holding melas in some places on these lands and were deriving considerable income therefrom. By the Bihar Land Reforms Amendment Act of 1959, their right to hold melas was taken away and it was the validity of this enactment that was challenged in the case. It was urged on their behalf that when the land holders were converted into raiyats, they were entitled to hold melas as an incident of their rights as raiyats and that this could not be adversely affected by State legislation without the same standing the test of scrutiny under articles 19, 31 etc. of the Constitution. The State of Bihar which was the respondent in the Writ Petition sought the protection of article 31A of the Constitution as amended by the Fourth Amendment. Dealing with the meaning of the words the 'raiyat and under raiyat ' in article 31A(2)(b) this Court said: "It is reasonable to think that the word 'raiyat ' was used in its ordinary well accepted sense, of the person who holds the land under the proprietor or a tenure holder for the purpose of cultivation, and the word 'under raiyat ' used in the equally well accepted and oridinary sense of a person who holds land under a raiyat for the purpose of cultivation". and speaking of the purpose of the Fourth Amendment it was observed: 825 "At that time laws had already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under raiyats who might answer the description 'intermediary ' were also within the definition because of the use of the word 'or other intermediary '. The only reason for specifically including the rights of 'raiyats ' and 'under raiyats ' in the definition could therefore be to extend the protection of article 31A to laws providing for acquisition by the State Governments of rights of these 'raiyats ' or 'under raiyats '. In the circumstances and in the particular setting in which the words 'raiyat ' or 'under raiyat ' were introduced into the definition, in must be held that the words 'or other intermediary 'occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added". In other words, the decision was that the object achieved by the Fourth Amendment by the introduction of these two words in sub cl. (b) was to rope in the interests of 'raiyats ' and 'under raiyats ' in 'estates ', notwithstanding that the ryot might not derive his interest, in his holding from the proprietor. The lands held by a ryotwari proprietor other than those in 'estates 'would not be an 'estate ' within sub cl. (a) nor the interest of such ryot in his holding an 'interest in an estate ' within sub cl. (b) having regard to the collocation of the words which I have attempted to explain earlier. In support of the construction that the holdings of ryots were comprehended within the definition of 'estates ' in article 31A(2), to submissions were made. The first was based on the object sought to be achieved by the Fourth Constitutional Amendment Act as set out in the statement of objects and reasons of the Bill. The passage relied on reads: 826 "While the abolition of zamindaris and the numerous intermediaries between the State and the tiller of the soil has been achieved for the most part our next objectives in land reform are the fixing of limits to the extent of agricultural lands that could be held or kept by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of landowners ' tenants and agricultural holders". I am unable to accept the argument that this passage can be of any assistance in the construction of cl. (a) or (b) of article 31A (2). As already pointed out, any extrinsic aid to construction can sought only when the words of the statute reasonably and properly interpreted are of ambiguous import, and the construction of the clauses now under consideration leads to no ambiguity. In the circumstances, to accept the construction contended for by respondent would be not to interpret the enacted words but to rewrite the clauses altogether. Besides, article 31A makes provision for special cases where on account of overwhelming social needs, the protection normally afforded to the citizen by the guarantee of fundamental rights is withdrawn. It would, I consider, be a proper rule of construction to interpret the terms of such a provision with strictness which would serve to preserve the area of the guaranteed freedoms from encroachment except as specially provided. In other words, if the construction of article 31A were ambiguous, the ambiguity should be resolved in favour of the citizen, so as to preserve to him the guarantee of the fundamental rights guaranteed by articles 14, 19 and 31 except where the same has been denied to him by the clear words of the Constitution. Secondly reliance was placed on three 827 decisions of this Court: Shri Ram Ram Narayan Medhi vs The State of Bombay (1), Atma Ram vs The State of Punjab (2) and Yavtamal vs State of Bombay (3). In the two reported decisions, no doubt this Court held that interests of persons similar to those of raiyatwari proprietors were comprehended within the definition of an 'estate ' within sub cl. (a) but the reasoning upon which this was rested in wholly inapplicable for resolving the controversy now before us. In the first case Sri Ram Narain Medhi vs The State of Bombay (1), the Bombay Land Revenue Code 1879 contained a definition of an 'estate ' which included not merely the estates of intermediaries such as zamindars, taluqdars and other proprietors but also an occupant, i.e., a person who held directly under the government and whose property was assessed to land revenue in full. The question however was whether the provision in article 31 A (2) (a) that the expression 'estates ' "shall have the same meaning as that expression has in the existing law relating to land tenures enforce in the area" could be read as permitting the exclusion from the definition of interests which were defined in such a law as 'estates ' on the ground that such interests were not those of an intermediary. This Court held that full effect had to be given to these words and that the definition of an 'estate ' in a pre Constitution law relating to land tenures must determine the content of that expression. It would be seen that the result would have been the same whether the case arose before or after the Fourth Amendment. The decision in Atma Ram vs The State of Punjab (2) proceeds on an identical basis and turned on the definition of an 'estate ' in the Punjab Revenue Act 17 of 1887. In this, as in the earlier case in relation to the Bombay Land Revenue Code, there could be no dispute that the enactment was a law in relation to land tenure. The only question therefore was 828 whether full effect could or ought to be given to the words of the definition, and this was answered in the affirmative. In my opinion, the learned Attorney General cannot derive any assistance from either of these decisions. In the unreported decision in Yavatmal vs The State of Bombay (1) the challenge was to the validity of a Bombay enactment of 1958 which extended the Bombay Tenancy & Agricultural Lands Act 1956 to the Vidarbha region, an enactment whose constitutional validity had been upheld by this Court in Medhi 's case. The argument before the Court was that the lands of the petitioners were not an 'estate ' and this, for the most part, was sought to be supported by the absence of any definition of the word 'estate ' in the Madhya Pradesh Land Revenue Code of 1954 which was taken to be "the existing law relating to landtenures" in the Vidarbha region. This Court accepted the submission of Counsel for the respondent that article 31A applied to and saved the legislation from being impugned under articles 14, 19 and 31 for the reason that the interest of the petitioners in that case (who were bhoomiswamis) was the local equivalent of an 'estate '. The decision, therefore, is no authority for the point now under consideration as to the proper meaning to be attached to the word 'raiyat ' and 'under raiyat ' in sub cl. (2)(b) of article 31A or as regards the effect of the Fourth Amendment to the Constitution in regard to the point now under controversy. From the foregoing it would be seen that the interests of the petitioner in the lands held by him on Puravaka tenure are within article 31A because they are lands belonging to a Jenmi and so covered by the definition of an 'estate ' as amended by virtue of the Fourth Amendment to the Constitution. With regard, however, to the Pandaravaka Verumpattom lands I am clearly of the opinion that they are not an 'estate ' and that the interests of the 829 petitioner in them do not amount to "an interest in an estate" within sub cl. (b) of article 31A(2). It would follow that the validity of the impugned Act in relation to Pandaravaka lands would have to be considered with reference to articles 14, 19 and 31. For the reasons stated in the judgment of this Court in Writ Petitions 114 and 115 which need not be repeated, I hold that the impugned Act is constitutionally in valid and cannot be applied to the Pandaravaka Verumpattom lands of the petitioner but that the petitioner would not be entitled to any relief as regards his other properties. BY COURT: In accordance with the opinion of the majority, the petition is dismissed. There will be no order as to costs. Petition dismissed.

A non resident company manufactured textile goods at P out side British India and sold the goods ex mills. A firm, R & Co., guaranteed the sale price of goods sold ex mills by the company to purchasers at Ahmedabad within British India. As the company maintained its accounts according to the mercantile system, the company debited R & Co., with the price of goods sold and credited the sales account with the amount of the bills. R & Co., collected the amounts of the bills from the purchasers on behalf of the company and credited the sums realised in the company 's account with banks at Ahmedabad and also disbursed them to creditors of the company in British India. These payments were credited by the company to R & Co. During the relevant accounting year the company thus received Rs. 12,68,480. The company also received Rs. 4,40,878 from sales to purchasers in British India. The amount of the sales bills for which hundis were drawn on the purchasers in favour of banks were debited by the company to the accounts of the respective merchants and credited to the sales account and the sums received by the banks from the purchasers against delivery of the railway receipts were credited by the company to the accounts of the respective purchasers. In either case there was no change in the relationship of vendor and purchaser between the company and the purchasers by reason of the entries made in the company 's books. The question as re framed by the High Court was whether these two sums were sale proceeds of the goods sold by the assesses to merchants in British India and whether they were received in British India and could be included in the assessable income of the company in British India: Held, per Mehr Chand Mahajan, section B. Das and Bhagwati J.J., (Vivian Bose J. dissenting) that the two amounts in question were sale proceeds of the goods sold and delivered by the company to merchants in British India ; that they were neither received by the company nor could be deemed to have been received by it when the entries were made in the books of account at P but had 951 merely accrued or arisen to it there; that they were first received by R & Co. and by the banks through whom the railway receipts were negotiated on behalf of the company in British India; and that they were therefore liable to tax under section 4(l) (a) of the Indian Income tax Act as having been received in British India on its behalf. Though it is true that in the case of residents, if the assessee employs the mercantile system regularly it is obligatory on the income tax authorities to compute the income according to that system, it is doubtful whether that position would be available to a non resident who maintains his books of account outside British India according to the mercantile system. Section 13 would only be relevant where the total profits of the assessee have to be computed and in that event the assessee would be entitled to claim that they should be computed according to the system of accounts maintained by him; it would not be relevant when stray items of income are sought to be assessed in the taxable territories as received in the taxable territories by a non resident. Bose J. In the case of accounts kept in the mercantile system, the profit or loss at the end of the accounting year is based not on a difference between what was actually received and what was actually paid out, but on the difference between the right to receive and the liability to pay. The taxation in such cases is not on income, profits or gains which were received but on profits which "accrued or arose" to the assessee in the accounting year. This view excludes section 4(l) (a) and this means that a resident is taxed in such cases under section 4(l)(b) and a non resident under section 4(l) (c). Applying section 4(l) (c) to the present case, in the case of the Rs. 4 lakhs odd the profits accrued or arose in British India where the right to take delivery of the goods accrued and where the price was actually paid, but what is really taxable under section 4 (1) (c) is not the Rs. 4 lakhs odd, but the figures entered in the accounting year as the price of the various transactions which the Rs. 4 lakhs represented. Similarly, in the case of Rs. 12 lakhs odd, it is the figure entered in the books in the accounting year relating to the transactions which is taxable. By the Full Court. The expression "deemed to be received" in section 4 (1) (a) means deemed by the provisions of the Act to be received. Subramaniyan (Chettiar vs Commissioner of Income tax (2 I. T. C. 365), Ahmed Din Alladitta vs Commissioner of Income tax, Punjab , Kanwal Yayan Hanir Singh vs Commissioner of Income tax, Ajmer Merwara , Commissioner of Incometax vs Singari Bai (13 l. T.R. 224) distinguished. B.M. Kamdar, In re , Pondicherry Railway Co. vs Commissioner of Income tax (58 I.A. 239) and Commissioner of 952 Income tax vs Mathias (66 I.A. 23), Commissioner of Income tax vs Kameswar Singh , Commissioner of Income tax vs Chunilal Mehta referred to.

APPEAL No. 757 of 1964. Appeal by Special Leave from the Judgment and Order, dated the 28th May, 1963 of the Gujarat High Court in Special Civil Application No. 419 of 1963. R. Gopalakrishnan, for the appellant. N. section Bindra and B. R. G. K. A char, for the respondent. The Judgment of the Court was delivered by Satyanarayana Raju, J. This appeal, by special leave, is against the judgment and order of the High Court of Gujarat at Ahmedabad, dated May 28, 1963, dismissing in limine an application filed by the appellant under article 226 of the Constitution. The facts material for the purposes of this appeal may be briefly stated. 'Me appellant was a permanent employee of the State Transport Corporation, Gujarat, hereinafter referred to as the Corporation. At the material time he was employed as a Writer in the Visnagar Depot of the Corporation in Mahasana District. On January 15, 1962, the appellant applied to the Divisional Controller, State Transport, Mahasana, for leave for 15 days on the ground that he had to attend to his 'personal work. On January 16, 1962, he was transferred from Visnagar to Ambaji where there was a vacancy in the office of the Depot Manager. On January 31, 1962, a formal order transferring the appellant from Visnagar to Ambaji was passed, and he was directed to join duty at Ambaji. On that date, the appellant applied for extension of leave on medical grounds but his request was refused by an order, dated February 15, 1962. He was directed to report for duty at Ambaji within 48 hours of the receipt of notice failing which, he was warned, he would be removed from service. On March 3, 1962, the appellant wrote a letter to the Divisional Controller intimating him of his inability to join duty as he was still not well. To this letter, he enclosed a medical certificate. By an order, dated March 9, 1962, the services of the appellant were terminated with effect from January 16, 1962, on the ground of long absence. The appellant made a representation to the Divisional Controller on March 17, 1962 and thereafter preferred an appeal to the General Manager of the Corporation. Both of them were rejected. A further appeal preferred by him to the L9SUPCI/66 4 4 2 appellate Committee was also unsuccessful. The Committee held that the leave applications of the appellant were made only with a view to evade joining duty at Ambaji. The appellant applied to the High Court of Gujarat under articles 226 and 227 of the Constitution, impleading the Divisional Controller as respondent, for the issue of a writ of certriorari to quash the order of dismissal. His petition was dismissed in limine on May 28, 1963. On June 17, 1963, the appellant applied for a certificate to appeal to this Court but it was refused. Thereafter he applied for special leave and that was granted by this Court. It may be stated at the outset that the respondent is an autonomous statutory Corporation formed under the provisions of the . It is not disputed that the appellant could not invoke the provisions of article 311 of the Constitution. The short question for determination in the appeal is whether the appellant was entitled to an opportunity to show cause against the proposed punishment as required by regulation No. 61 of the Regulations which govern the service conditions of the employees of the Corporation. It is admitted that no charge was framed against him nor was he given an opportunity to show cause. It is contended for the respondent that though the order of termination referred to long absence as the cause of termination, the termination itself was not by way of punishment and the only right of the appellant was to two months ' pay in lieu of notice under regulation No. 61, that assuming that the termination was by way of punishment, the appellant, as would be evident from the correspondence and the circumstances of the case, had been given an opportunity to show cause and that there was in fact and in substance compliance with the rules of natural justice. We may, at this stage, read the relevant regulations which admittedly govern the service conditions of the employees of the G Corporation. Regulation No. 61 provides as follows : "The service of an employee, who does not hold a permanent appointment in State Transport or a lien on a permanent appointment in any Government Department from which he is transferred, are liable to be terminated by the Competent Authority by giving a calendar month 's notice or a calendar month 's pay in lieu : 43 Provided that the services of casual workers and part time workers may be terminated without any notice; Provided further that a permanent employee of State Transport shall be entitled to 60 days ' notice or 60 days ' pay in lieu. " Clauses 3 8, 40 and 4 (b) of Schedule A to the Regulations provide: "38. Irregular attendance, absence without leave and without reasonable cause and absence without permission. " 40.Failure, without sufficient cause, to report, when directed, for duty, on the part of an employee to whom the leave he has applied for is refused." "4(b). A person against whom action is proposed to be taken for any act of misconduct, shall be provided with a copy of the charge or charges as well as a statement of allegations that have been made against him, and over which enquiry is being held. " Clause 3 defines two classes of offences named acts of misconduct and minor lapses and delinquencies, respectively and sub cl. (ii) of cl. 3 states inter alia that the misconducts are those specified in Schedule A. Regulations 38 and 40 provide that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. Clause 4(b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do, only when he knows what the charges levelled against him are and the allegations on 44 which such charges are based. In our judgment the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him. The order of termination passed against the appellant is bad in law since it contravenes the provisions of cl. 4(b) of the Regulation and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under cl. 4(b) of the regulations. The appeal is accordingly allowed, but there will be no order as to costs. Appeal allowed.

The second appellant the Sub divisional Officer had been constituted as the licensing authority, under section 4 of the Punjab Cinemas (Regulation) Act, 1952, for the area concerned in the present case. The respondent made an application to him for a licence to construct a permanent cinema hall. Pending the application, instructions were issued by the first appellant the State Government that all such applications for licence shall be forwarded to the State Government for orders accompanied with certain particulars regarding the applicant. The second appellant forwarded the respondent 's application with the relevant facts to the first appellant and the first appellant rejected the application. The respondent 's appeal to the first appellant under section 5(3) of the Act was also rejected. The respondent then moved the High Court under article 226 and the High Court held that the first appellant had no authority or power to require all applications for licences under the Act to be forwarded to it and to deal with them itself. In appeal to this Court, the first appellant contended that it had jurisdiction to deal with the application because section 5(2) of the Act conferred very wide powers of control on it and that the power took within its sweep the directions issued by it. HELD : The scheme of the Act indicates that there are two authorities which are expected to function under the Act the licensing authority as well as the State Government. The basic fact in the scheme is that it is the licensing authority which is solely given the power to deal with the applications for licence in the first instance, and this basic position cannot be changed by the State Government by issuing any executive orders or by making rules under section 9 of the Act. [989 G; 990 B C] The control of the State Government under section 5(2) subject to which the licensing authority has to function is very wide; but however wide this control may be, it cannot justify the State Government to completely oust the licensing authority and itself usurp its functions. The licensing authority has to act under the control of the State Government, but it is the licensing authority which has to act and not the Government itself. The said control can be exercised generally before applications are granted by issuing general instructions which are legitimate and reasonable for the purpose of the Act, or particularly by correcting individual orders granting licences if they are found to be erroneous, but in any case the State Government has to function either as an appellate authority under section 5(3) or as a revisional authority under section 5(2), but it cannot assume for itself the powers of the licensing authority. [988 H 989 E] Karnati Rangaiah vs A. Sultan Mohiddin, A.I.R. 1957 A.P. 513, M/s. Vishnu Talkies vs The State, Rai. 14 and Bharat Bhushan vs Cinema and City Magistrate, A.I.R. 1956 All. 99, overruled.

iminal Appeals Nos. 151 to 158 of 1966. Appeals from the judgment and order dated December 30. 1964 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revisions Nos. 81 D to 83 D, 107 D and 129 D to 132 D of 1964. Bishan Narain, B. P. Maheshwari and N. K. Jain, for the appellant (in all the appeals). C. K. Daphtary, N. N. Goswami, K. L. Mehta and section K. Mehta, the respondent (in Cr. A. No. 151/1966). K. L. Gossain, N. N. Goswami, K. L. Mehta and section K. Mehta, the respondent (in Cr. 152 to 158 of 1966). section K. Mehta for the intervener. The Judgment of the Court was delivered by Dua, J. These eight appeals with certificate (Crl. Al) peals Nos. 151 to 158 of 1966) raise a common question of law and would, therefore, be disposed of by a common judgment. In deed, all the appeals in the Punjab High Court were also disposed of by a learned single Judge of that Court sitting on circuit at Delhi by a common judgment and another learned single Judge of the same Court similarly certified the cases to be fit for ,appeal to this Court by a common order. The only question canvassed at the bar requiring determina tion by us is whether the respondent is liable to be prosecuted under the Prevention of Food Adulteration Act, 37 of 1954 (hereafter called the Adulteration Act) for selling adulterated vinegar when the vinegar is being sold under a licence granted under the Fruit Products Order, 1955 (hereafter called the Fruit Order) made by the Central Government under section 3 of the Essen 609 tial Commodities Act. The High Court has relying on an un reported Bench decision of the Punjab High Court in State vs RaJ Kumar (Crl. A. 996 f 1961 decided on October 29, 1962) held that they cannot be prosecuted. It was argued in the High Court that the rules made under the Adulteration Act had come into force after the enforcement of the Fruit Order and vinegar being mentioned as an article of food in those rules, prosecution under both the provisions of law was permissible. Reliance in support of this argument was also placed on section 26 of the General Clauses Act. This argument was not accepted and it was observed that the special provisions of the Fruit Order had overriding effect and, therefore, a manufacturer of Fruit Products could only be prosecuted under the provisions of the Fruit Order. Prayer for reference to a larger Bench for reconsideration of Raj Kumar 's case (supra) did not find favour with the learned single Judge. In this Court the view taken in Raj Kumar 's case (supra) was sought to be supported by the learned counsel for the, respondent. The provisions of the Fruit Order and of the Adulteration Act, it was contended, could not harmoniously co exist on the statute book, as compliance with one would, in certain contingencies, result in violation of the other some respects. With respect to the particular charges tried in the cases in appeal, however, no attempt was made on behalf of the respondents to show that there was any fatal conflict or inconsistency between the two provisions. The question before us accordingly lies within a very narrow compass. The appellant urged that there is no implied repeal of the Adulteration Act by the Fruit Order in so far as the sale of vinegar is concerned, whereas the case of the respondent is that there is an implied repeal and the respondents are not liable to be prosecuted under the Adulteration Act for violating its provisions. Shri Bishan Narain sought support for his submission from Om Prakash Gupta vs State of U.P. (1) and T. section Baliah vs T. section Rangachari (2). In the former case section 5 (1 ) (c) of the Prevention of Corruption Act was held not to repeal section 409 I.P.C. The decision of the Punjab High Court (Khosla and Falshaw, JJ.) in State vs Gurcharan Singh(3) holding to the contrary was overruled. In the latter case section 52 of the Income tax Act, 1922 was held not to repeal section 177, T.P.C. It is unnecessary to refer in detail to the facts of all the eight cases separately as no such reference was made by either side at the bar. Shri Bishan Narain for the appellant, by way of illustra (1) ; (2) ; (3) A.I.R. 1952 Punjab 89. 610 tion made a passing reference to the facts of Crl. Appeal No. 155 of 1966. From the record of that appeal we find that samples of (i) sugar cane juice vinegar, (ii) vine (pure) vinegar and (iii) pure jaman vinegar, were takes by a Food Inspector from the shop of the respondent on October 17, 1960 and on the 'same having been found highly adulterated and unfit for human consumption because of the presence of sulphuric acid which is prohibited, complaints under sections 7/16 of the Adulteration Act were instituted by the Municipal Prosecutor in December, 1960. After the prosecution evidence was recorded, the respondent Shiv Shan ker applied to the trial magistrate in October, 1963 praying that the prosecution be dropped. In this application it was admitted that the prosecution had arisen out of a raid dated October 17, 1960 at the promises of the accused "when allegedly samples of vinegar were taken which are stated to be adulterated because of the presence of sulphuric acid". It was pleaded that the petitioning accused had secured in 1960 a licence under the Fruit Order and vinegar whether brewed or synthetic being a food product and standard specification for such vinegar being tabulated in Part XIV attached to the Second Schedule of the Fruit Order, prosecution without the, previous sanction of the Licensing Officer as required by cl. 15 of the said Order was unauthorised. Prosecution under the Adulteration Act was on this ground pleaded to be incompetent. In the application reliance in support of this plea was placed on the unreported Bench decision of the Punjab High Court in Raj Kumar 's case in which according to the accused it had been held that a licensee under the Fruit Order could not be prosecuted for any contravention of that Order or of the Adulteration Act without the previous sanction of the Licensing Authority appointed under the Fruit Order. The trial magistrate basing himself on an unreported single Bench decision of the Punjab High Court and on section 26 of the General Clauses Act rejected this application. On revision, the Additional Sessions Judge relying on the decision in Raj Kumar 's, case (supra) made a reference to the High Court recommending that the proceedings be quashed. J. section Bedi, J., relying on Raj Kumar 's case (supra) quashed the pro ceedings. section K. Kapur J., who certified the case to be fit for appeal after quoting a passage from Raj Kumar 's case (supra) considered the question raised to be important enough for appeal to this Court. The general principles governing implied repeal appear to us to have long since been settled. The difficulty is normally experienced in their application to a given case. From the passage quoted by Kapur J., from the unreported Bench decision in Raj ' Kumar 's case (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them. We accordingly, 611 consider it proper to broadly restate the general rule. It was laid in Paine vs Stater(1) that when two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier. As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence of express or at least clear and unambiguous indication to that effect. This is essential in the interest of certainty and consistency in the laws which the citizens are enjoined and expected to. The legislature, which may generally be presumed to know the existing law, is not expected to intend to create confusion by its omission to express its intent to repeal in. clear terms. The courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. The repeal must, if not express, flow from necessary implication as the only intendment. The provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd consequences, which intention could not reasonably be imputed to the legislature. It is only when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained. To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning and effect both of the earlier and the later statute. Until this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them. The meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict should also so far ,is reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict. The same rule of irreconcilable repugnancy controls implied repeal of 'a general by a special statute. The subsequent provision treating a phase of the same genera subject matter in a more minute way may be intended to imply repeal pro tanto of the (1) 612 Repugnant general provision with which it cannot reasonably co,exist. When there is no inconsistency between the general and the special statute the latter may well be construed as supplementary. In the light of these broad guidelines we may now examine the two statutes as they stood in 1960 because the cases with which we are concerned relate to that year. The history and the scheme of the two statutory provisions would be helpful in discovering the legislative intent on the question of implied repeal. Turning first to the Adulteration Act, it was enacted by the Parliament to make provision for the prevention of adulteration of food and it came into force on June 1, 1955. Previously corresponding laws on adulteration of foodstuffs were in force in different States, having been enacted by their respective legislatures. All those laws were repealed by section 25 of the Adulteration Act. It may be pointed ,out that under the Government of India Act, 1935 "adulteration of foodstuffs and other goods" was a provincial subject whereas under the Constitution it is included in the Concurrent List. Section 2(i) of this Act which defines the word "adulterated" con sists of several sub clauses. One of these sub clauses is (1) according to which "an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities Which are in excess of the prescribed limits of variability". Clause (v) of section 2 defines "food" to mean "any article used as food or drink for human consumption other than drugs and water and includes : (a) any article which ordinarily enters into or is used in the composition or preparation of human food, and (b) any flavouring matter or condiments. According to cl. (ix) an article of food shall be deemed to be "misbranded" if it falls within an) one of the sub clauses (a) to (k). It is not necessary to reproduce all these sub clauses. "Pack age" has ' been defined in cl. (X) to mean "a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed". We have referred to the definitions of "misbranded" and " package" because one of the cases before us (Crl. A. 154 of 1966) is a case of alleged misbranding, the remaining seven cases being ,of alleged adulteration. Section 5 prohibits import of, inter alia, adulterated and misbranded food and all articles of food in contravention of any provision of the Act or of any rules made thereunder. Section 7 prohibits manufacture for sale or store and also sale and distribution of, inter alia, adulterated and misbranded food land of articles of food, in contravention of the Adulteration Act and the Rules made thereunder. Section 8 provides for appointment of Public Analysts and section 9 for the appointment of Food Inspectors. The powers of Food Inspectors are contained in section 10. He possesses very wide powers for the purpose of effectively achiev 613 ing the statutory object of preventing the manufacture, sale and distribution etc., of adulterated articles of food. The procedure for taking samples of food by the Food Inspector for analysis is prescribed in section 11 and the report of the Public Analyst is made admissible by section 13. The proviso to sub section (5) of section 15 makes the certificate signed by the Director of Central Food Laboratory final and conclusive proof of the facts stated therein. The Central Food Laboratory is established by the Central Government under section 4 for the purpose of carrying on functions entrusted to it by the Adulteration Act or by the Rules made thereunder. Section 16 provides for penalties for offences under the Adulteration Act and cl. (a) of sub section (1) makes it an offence for any person, whether by himself or by any person on his behalf to import into India or manufacture for sale or to store, sell or distribute any article of food in contravention of any of the provisions of the Act or of any rules made thereunder. In the prosecution for an offence pertaining to the sale of an adulterated or misbranded article of food section 19 makes impermissible the defence that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased an article for analysis was not prejudiced by the sale. Section 20 prohibits cognizance and trial of offences under the Act except when prosecution is instituted by or with the written consent of the State Government or a local authority or a person authorized in this behalf by such Government or authority. Under the proviso to this section a purchaser referred to in section 12, is, however, empowered to institute a prosecution if he produces in court a copy of the report of the Public Analyst along with the complaint. Section 21 overrides section 32, Cr. P.C. in the matter of sentence to be passed under this Act by the Presidency Magistrates or Magistrates of 1 Class, trying offences under the Act. Section 23 confers on the Central Government wide powers to make rules under the Act after consulting the Central Committee for Food Standards appointed by the Central Government under section 3. Section 24 empowers the State Government, (after consultation with the Central Committee for Food Standards and with previous publication) to make rules for giving effect to the provisions of the Act in matters not covered by section 23. Various States have actually framed rules under this section. We may now briefly refer to the Prevention of Food Adultera tion Rules, 1955 (hereafter called the Adulteration. Rules). These rules were made by the Central Government under section 4(2) and section 23(1) of the Adulteration Act and were published in the Official Gazette as per notification dated September 12, 1955. The rules other than those contained in Part III Appendix B Item A.12 Margarine, Part VI and Part VII came into force on the date of 614 their publication in the Official Gazette : the rules contained in Part III, Appendix B, Item A.12 Margarine came into force on June 1, 1956 and the rules contained in Part VI and Part VII came into force on December 1, 1956 : vide r. 1(3). Under section 23(2) (prior to its amendment in 1964) all rules made under sub section (1) had to be laid as soon as possible before both Houses of Parliament. By Act 49 of 1964 sub section (2) was amended so as to provide for every rule made under sub section (1) to be laid before each House of Parliament while in session, for a total period of 30 days in order to afford an opportunity to the two Houses to study and to modify or annul it for, future if both Houses so agree. We have referred to this amendment as some of the rules were amended thereafter. The effect of the subsequent amendment of some of the rules will be noticed later. The Adul teration Rules clearly bring out the anxiety of their authors to see that wholesome food is sold to the citizens. The duties and powers of Food Inspectors as contained, inter alia, in rr. 9 and 1 3, broadly illustrate this anxiety. These rules also indicate that the framers of the Rules were not unaware of the different provisions of the Fruit Order. By way of illustration reference may be made to r. 50 which prescribes conditions of licence to manufacture, sell, stock, distribute or exhibit certain articles of food. In cl. (1) of sub r. (1) of this rule the fruit products covered under the Fruit Order and some other articles have been excluded from the operation of this rule. This clause was amended twice, once in November, 1956 and again in April, 1960. Had the Adulteration Act been intended to be impliedly repealed by the Fruit Order (which would also mean implied repeal of the rules) it would have been unnecessary to expressly exclude such fruit products from the operation of this rule. Rule 5 and Appendix B of these Rules came into force on December 1, 1956 after the promulgation of the Fruit Order. According to r. 5 the standard of quality of the various articles of food specified in Appendix B are as specified therein. In Appendix B item at sl. No. A.16 deals with "fruit products". But the articles of fruit products dealt with in A. 16.01 to A. 16.12 clearly show that vinegar is not included in the expression "fruit products". Vinegar is dealt with in A.20 and synthetic vinegar in A.20.01. Both these items were added in April, 1960. We may now turn to the Essential Commodities Act, 10 of 1955 and the Fruit Order. The Essential Commodities Act was enacted in 1955 with the object of providing, in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities. It came into force on April 1, 1956 repealing the Essential Commodities Ordi 615 nance No. 1 of 1955 which had been promulgated with the same object and enforced on January 26,1955, the date of the expiry of the Essential Supplies (Temporary) Powers Act 26 of 1946. The last named Act had replaced the Essential Supplies (Temporary Powers) Ordinance No. XVIII of 1946 which had come into force on October 1, 1946. That Ordinance was promulgated with the object of continuing, during a limited period, powers to control the production, supply and distribution of, and trade and commerce in, foodstuffs and certain other commodities. To empower the Indian Legislature to enact law on this subject matter the British Parliament had passed India (Central Government and Legislation) Act, 1946(9 and 10 Geo. Vl, c.39). The lndian Legislature not being in session the Ordinance was promulgated to meet the emergency and this was replaced by Act 26 of 1946. Reference has been made by us to this past history for the purpose of indicating the different objects and purposes intended to be achieved by the two legislative measures. Section 2 of the Essential Commodities Act which is the definition section defines in cl. (a) "essential commodity to mean any of the classes of commodities stated in sub cls. (i) to (xi). Sub clause (v) refers to "foodstuffs, including edible oil seeds and oils" and cl. (xi) confers power on the Central Government to declare by a notified order any other class of commodity to be an essential commodity for the purposes of the Act, being a commodity with respect to which Parliament has power to make laws by virtue of Entry 33 in List III in the 7th Schedule to the Constitution. Section 3 of the Act confers on the Central Government power to control production, supply, distribution etc., of essential commodities by providing, by an order, for regulating or prohibiting the production, supply and distribution of those commodities and trade and commerce therein. Every order made under this section has to be laid before both Houses of Parliament as soon as may be after it is made. By virtue of section 6 Orders made under section 3 have effect notwithstanding anything inconsistent there ,with contained in any enactment other than the Essential Commodities Act. Section 7 provides for penalties for contravention of orders made under section 3. Under section 11 courts are prohibited from taking cognizance of offences punishable under this Act except on a report in writing of the facts constituting such an offence made by a person who is a public servant as defined in section 21, I.P.C. Section 12 of this Act vests in the Presidency Magistrates and Magistrates of 1 Class power to pass sentences of fines exceeding Rs. 1,000/ on convicted persons notwithstanding the restriction in this respect imposed on their powers by section 32, Cr. P.C. As already noticed earlier, an ordinance called the, Essential Corn modifies Ordinance, 1 of 1955 had been promulgated on the expiry of the Essential Commodities (Temporary Powers) Act and the present Act was passed to replace that Ordinance. 6 16 It may appropriately be pointed out at this stage that it was not the respondent 's case that the Essential Commodities Act had the effect of impliedly repealing the Adulteration Act for the purposes of these cases. The only argument urged was that the Fruit Order had that effect and its overriding effect by virtue of section 3 of the Act was strongly emphasised. We may now turn to the Fruit Order (S.R.O. 1052 dated 3rd May, 1955 published in the Gazette of India dated 14th May, 1955) which was made by the Central Government in exercise of the powers, conferred on it by section 3 of the Essential Commodities Act. Clause (2) of this Order, which is the definition clause, defines the expression "fruit product" in sub cl. (d) and "vinegar, another brewed or synthetic" is included in this expression as per item (ii) of this sub clause. "Licensing Officer" as defined in sub cl. (g) means the Agricultural Marketing Adviser to the Government of India and it includes any other Officer empowered in this behalf by him with the approval of the Central Government. "Manufacturer" as defined in sub cl. (h) means a licensee engaged in the business of manufacturing in fruit products for sale and includes a person purchasing such fruit products in bulk and repacking them for sale either by himself or through someone else. Clause 4 prohibits all persons from carrying on business of manufacture except and in accordance with the terms of an effective licence granted to him under this Order in Form "B". Clause 5 prescribes procedure for applications for the grant of a licence under cl. 4. Clause 7 enjoins the manufacturers to manufacture fruit products in conformity with the sanitary requirements and the appropriate standard of quality and composition specified in the Second Schedule to the Order and cl. 8 lays down the requirements to be complied with by the manufacturers in regard to the packing, marketing and labelling of containers, of fruit products. Clause 10 prohibits sale, exposure for sale, despatch or delivery to any agent or broker for the purpose of sale, any fruit products which do not conform to the standard of quality and composition specified in the Second Schedule or which are not ,packed, marked and labelled in the manner laid down in the Order: ,the proviso to this clause contains directions for fruit products imported into India. Clause 12 contains a mandate for every manufacturer to comply with the directions and orders issued to him and failure to do so is to be deemed to be a contravention of the provisions of the Order. According to cl. 15 no prosecution for contravention of any of the provisions of this Order is to be instituted without the previous sanction of the Licensing Officer. The object and purpose of the Adulteration Apt is to eliminate the danger to human life and health from the sale of unwholesome articles of food. It is covered by Entry 18, List III of the 7th Schedule to the Constitution. The Essential Commodi 617 ties Act on the other hand has for its object the, control of the production, supply and distribution of, and trade and commerce in,. essential commodities and is covered by Entry 33 of List III. In spite of this difference in their main objects, control of production and distribution of essential commodities may, to an extent from a. broader point of view include control of the quality of the essential articles of food and, thus considered, it may reasonably be urged that to some extent it covers the same field as is covered by the provisions of the Adulteration Act. The two provisions may, therefore, have within these narrow limits co terminus fields of operation. On this premise we have to see if the two provisions can stand together having cumulative effect and in case they cannot, which provision has the overriding or controlling effect. It is needless to point out that they can stand together if the powers are intended to be exercised for different purposes without fatal inconsistency or repugnancy. At the bar Shri Daphtary in his usual persuasive manner argued that there is an irreconcilable conflict between the two statutory provisions and the Fruit Order being, not only of a date later than the Adulteration Act but also having, by virtue of section 3(6) of the Essential Commodities Act, overriding effect over all other laws, it must prevail over the Adulteration Act and Rules. He pointed out that under the Fruit Order the prosecution can be instituted only with the previous sanction of the Licensing Officer whereas under the Adulteration Act even a purchaser may, without any such sanction, institute a prosecution merely by producing along with his complaint a certificate from the Public Analyst. He also drew our attention to section 20 A of the Adulteration Act according to which, unlike the Fruit Order, the Court trying an offence under that Act is empowered to implead the manufacturer, distributor or dealer of any article of food, it is satisfied that he is also concerned with, that offence, and proceed against him as though the prosecution had been instituted against him under section 20. We do not think this section in any way reflects the legislative intention of implied repeal of the Adulteration Act by the Fruit Order. The two statutory provisions can operate within their respective spheres without giving rise to any absurdity or such grave inconvenience as would impel the court to sustain the plea of implied repeal. , Incidentally it may also be pointed out that this section was added by Act 49 of 1964 which came into force on March 1, 1965 long after 1960 when the present cases were started. Shri Daphtary developed his argument by adding that if the respondents have manufactured for sale and have sold vinegar in accordance with the terms of the licence granted to them under the Fruit Order then imposition of further restrictions under the Adulteration Act and Rules with a threat of severe penal consequences for violation of those provisions would 618 be in direct conflict with the mandate or directions under the Fruit Order. The counsel contended that at least the freedom to manufacture and sell vinegar as permitted by the Fruit Order is curtailed or further circumscribed by the Adulteration Act and Rules and this must necessarily cut across the provisions of the Fruit Order. He illustrated his point by submitting that under the Fruit Order use of colouring matter is more liberal than under the Adulteration Act and Rules. In view of these conflicting provisions the Adulteration Act and Rules, according to Shri Daphtary must be held to have been impliedly repealed by the Fruit Order. We are unable to agree with this submission. The two statutory provisions, for the purpose of effectuating their respective objects, have imposed ,different restrictions on the respondents when they manufacture and sell vinegar whether brewed or synthetic. We are, however, '.Informed at the bar that in the present case the disputed vinegar is synthetic. In the interest of public health the respondents have to comply with the provisions of Adulteration Act and Rules and in the interests of equitable distribution of essential commodities including the articles of food covered by Essential Commodities Act and the Fruit Order they have to comply with the provisions of the Fruit Order. The provisions of the Adulteration Act and of the Fruit Order to which our attention was drawn seem to be supplementary and cumulative in their operation and no provision of the Fruit Order is shown to be destructive of or fatal to any ,provision of the Adulteration Act or the Rules made thereunder So as to compel the court to hold that they cannot stand together. If the Adulteration Act or Rules impose some restrictions on. the manufacturer, dealer and seller of vinegar then they have to comply with them irrespective of the fact that the Fruit Order imposes lesser number of restrictions in respect of these matters. The former do not render compliance with. the latter impossible, nor does compliance with the former necessarily and automatically involve violation of the latter. Indeed, our attention was not drawn to any provision of the Adulteration Act and Rules, compliance with which would result in breach of any mandate, whether affirmative or negative, of the Fruit Order. We are, therefore, unable to find any cogent or convincing reason for holding that the Parliament intended by enacting the Essential Commodities Act or the Fruit Order to implidely repeal the provisions of the adulteration Act and the Rules in respect the statutes can function with full the provisions of the Adultera of the vinegar in dispute. Both vigour side by side in their own parallel channels. Even if they happen to some extent to overlap. section 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty. This section lays down that where an Act or omission constitutes an, ' offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not 619 be liable to be punished twice for the same offence. If, therefore, the provisions of the Adulteration Act and those of Fruit Order happen to constitute offences covering the same acts or omissions then it would be, open to the prosecuting authorities to punish the offender under either of them subject to the only condition that a guilty person should not be punished twice over. There is also another aspect which has to be kept in view. Both the Adulteration Act and the Essential Commodities Act have been amended from time to time after their enactment. Being governed by Entries in List III of the 7th Schedule even the States have power to amend these enactments and indeed they have been so amended in some States. The subsequent amendments of the Adulteration Act and of the Essential Commodities Act by the Parliament and the amendment of the Adulteration Rules would also tend to negative any legislative intendment of implied repeal of the Adulteration Act by the Essential Commodities Act or the Fruit Order. It may be recalled that cl. (1) of sub r. (1) of r. 50 of the Adulteration Rules was amended in 1956 and again in 1960 and the amended clause is indicative of the rule making authority being conscious of both the statutory provisions being operative in their respective fields at the same time, thereby negativing implied repeal. A.20 dealing with "vinegar" was also added in Appendix B of the Adulteration Rules in 1956 and A. 20.01 dealing with " synthetic vinegar" was added in April, 1960. A passing reference may also be made to some of the relevant amendments in some rules made subsequent to the enforcement of the amended section 23 (2). In r. 55 in items at sl. 19 and 20, dealing with pickles and chutnies made from fruit or vegetables and with tomato and other sauces, respectively, the preservatives mentioned in cl. 2 were amended. Similarly in r. 51(2) the table containing articles like fruit and vegetable juices including tomato juice was amended. Both the above amendments were made in December, 1965. It may here be pointed out that pickles, chutnies, tomato products, kutchups, sauces and also other unspecified items relating to fruits or vegetables are included in the definition of "fruit product" under the Fruit Products Order. These amendments, though made after 1960, do seem to further negative the intendment of implied repeal as argued on behalf of the respondent. In view of the foregoing discussion it seems to us that the two statutory provisions can harmoniously operate without causing confusion or resulting in absurd consequences ' and the scheme of the Adulteration Act and Rules can without difficulty fit into the scheme of the Fruit Order under the Essential Commodities Act. The challenge on the ground of implied repeal must, therefore, be rejected. Incidentally we may note that the view taken by the learned single Judge in this case was later overruled by a Full Bench of the 918 Sup. C.I./71 620 Delhi High Court in Municipal corporation vs Harnarain (Crl. A. No. 163 of 1967 decided in May, 1969). Shri Daphtary, as a last resort, tried to press into service article 14 in his challenge to the prosecution of the respondent. According to him the prosecuting authorities have an unguided licence to prosecute his clients under one or the other statute and since the penalty under the Adulteration Act is more severe than that under the Fruit Order the principle of equality before the law is violated As this point was not taken in any of the courts below we did not permit him to raise it in this Court. It would, however, be open to the respondent, if so advised, to raise this point in accordance with law in the court below, because the cases have not yet been finally disposed of. The competence of the prosecution having been challenged at an intermediate stage, the cases will have to go back to the trial court. As these cases have been pending since 1962 the trial court should dispose them of with due dispatch and without any further avoidable delay. The appeals are accordingly allowed and the cases remitted to the trial court for further proceedings according. to law in the light of the observations made above. R.K.P.S. Appeals allowed.

The respondent, who was selling Vinegar under a license granted under the Fruit Products Order, 1955, made by the Central Government under section 3 of the Essential Commodities Act, was prosecuted under the , for selling adulterated vinegar. He pleaded that vinegar, whether brewed or synthetic, being a food product and standard specification for such vinegar being tabulated in attached to the Second Schedule of the Fruit Order, persecution without the previous sanction of the licensing Officer as required by clause 15 of the said order was incompetent. The trial judge rejected the contention. But the High Court quashed the proceedings. It was observed that the special provisions of the Fruit Order had overriding effect and therefore a manufacturer of fruit products could only be prosecuted under the provisions of the Fruit Order. In the appeal to this Court it was contended for the respondent that there was an irreconcilable conflict between the two statutory provisions, and the Fruit Order being, not only of a date later than the Adulteration. Act but also having, by virtue of section 3(6) of the Essential Commodities Act overriding effect over all other laws, it must prevail over the Adulteration Act and the rules. On the question whether the Fruit Order impliedly repeals the Adulteration Act, HELD : The plea of implied repeal must fail and the appeals must be allowed. To determine if a later statutory provision repeals by implication an earlier one it is necessary to scrutinise and consider the true meaning and effect both of the earlier and the later statute. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own object or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on surface. [611 D G] The provisions of the Adulteration Act and the Fruit Order, for effectuating their respective objects, have imposed, different restrictions in the manufacture and sale of vinegar whether brewed or synthetic. in the interest of public health the respondent has to comply with the provisions of the Adulteration Act and Rules and in the interests of equitable distribution of essential commodities including the articles of food covered by the Essential Commodities Act and the Fruit Order they have to comply with the provisions of the fruit Order. Both the provisions are supple 608 mentary and cumulative in their operation and no provision of the Fruit Order is shown to be destructive of or fatal to any provision of the Adulteration Act or the Rules made thereunder so as to compel the court to hold that they cannot stand together. If the Adulteration Act or Rules impose some restrictions on the manufacturer, dealer and seller of vinegar, then they have to comply with them irrespective of the fact that the Fruit ,Order imposes lesser number of restrictions in respect of these matters. The former do not render compliance with the latter impossible, nor does compliance with the former necessarily and automatically involve violation ,of the latter. Even if both 'statutes to some extent overlap, section 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty. [618 C H] Om Prakash Gupta V., State of U.P.; , , T. section Baliali vs T. section Rengachari, ; , State vs Gurcharan Singh, A.I.R. 1952 Punjab 89, and Paine vs Stater, ,referred to.

Appeal No. 335 of 1957. Appeal by special leave from the judgment and order dated January 31, 1957, of the Election Tribunal, Ajmer, in Election Petition No. 2 of 1956. 50 388 Mukat Behari Lal Bhargava and Naunit Lal, for the appellant. Respondent No. 1 in person. September 12. The following Judgment of the Court was delivered by KAPUR,J. This is an appeal from the order of the Election Tribunal dated January 31, 1957, setting aside the election of the appellant, Maulana Abdul Shakoor, who was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer. He received 19 votes as against 7 polled in favour of the other candidate who is respondent No. 1 in this appeal. The total number of valid votes polled was 26 and there were 3 invalid votes. The result of the election was published in the Official Gazette on March 31, 1957, declaring the election of the appellant. The unsuccessful candidate, the present first respondent, filed his election petition on May 2, 1956. It is not necessary to set out all the allegations in the petition because the main controversy between the parties is whether the successful candidate, the present appellant, held an " office of profit " under the Government. The impugned election was held on March 22, 1956. By a notification issued on February 17, 1956, the nominations for candidature were to be filed between February 28, 1956, and March 1, 1956. The date for scrutiny was March 5, 1956, and for the polling March 22, 1956. The appellant filed two nomination papers on February 28, 1956, and a third one on March 1, 1956. The respondent Rikhab Chand Jain also filed his nomination papers on March 1, 1956. On March 5, 1956, the respondent Rikhab Chand Jain raised certain objections to the validity of the appellant 's nomination, the main ground being that the appellant was holding an office of profit under the Government. The Returning Officer by his order dated March 6, 1956, rejected the two nomination papers of the appellant filed on February 28, 1956, but accepted the third one, i.e., of March 1, 1956, because, according to that officer, 389 under the provisions of Durgah Khwaja Saheb (Emeregency Provisions) Act, 1950 (XVII of 1950) which was in force up to February 29, 1956, the appellant was holding an office of profit under the Government but on the coming into force of the Durgah Khwaja Saheb Act (XXXVI of 1955) on March 1, 1956, he no longer held such office under the Government. On May 3, 1956, the respondent filed an election petition under section 81 of the Representation of the People Act, 1951, in which he submitted that the third nomination paper of the appellant should also have been rejected as even under the provisions of Durgah Khwaja Saheb Act (XXXVI of 1955), the appellant was holding an office of profit under the Government and therefore his case was covered by the provisions of article 102 (1)(a) of the Constitution. He also prayed that he be declared elected as the votes cast in the appellant 's favour were " thrown away " votes and the respondent alone received a majority of valid votes. A majority of the Election Tribunal by their order dated January 31, 1957, held that on March 1, 1956, the appellant was holding an office of profit under the Government and therefore his nomination paper was hit by article 102(1) (a) of the Constitution. They set aside his election and accepting the contention as to " thrown away " votes declared the respondent elected. Disagreeing with the majority, the Chairman of the Election Tribunal held that on March 1, 1956, the appellant was no longer holding an office of profit under the Government, his nomination paper was rightly accepted and his election was valid and therefore the respondent could not be declared elected. On the question whether the two nomination papers of the appellant dated February 28, 1956, were valid or not the Tribunal unanimously held them to be invalid on the ground that the appellant held an office of profit under the Government on that date. It is not necessary to go into the question whether the two nomination papers filed by the appellant on February 28, 1956, were valid or not because if the nomination paper filed on March 1, 1956, is valid the question of their validity would not arise. It may 390 here be stated that the argument before us has proceeded on the assumption that the appellant held an office of profit. The controversy between the parties was therefore confined to whether this office of profit was held under the Government of India and therefore the disqualification for membership under article 102(1)(a) applies to the appellant. In order to resolve this controversy the important question of construction that arises is: was the appellant holding an office of profit under the Government of India and does article 102(1)(a) of the Constitution operate ? This article is as follows: 102(1) " A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; " This article occurs under the heading Disqualifications of Members. In the same part of the Constitution, i.e., Part V, are given the disqualifications for election to the offices of President and Vice President. The relevant part of article 58 which lays down the disqualification for the office of the President is: article 58(1) "No person shall be eligible for election as President unless he (a). . . . . . (b). . . . . . (c). . . . . . (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments. " There is a similar provision in regard to the Vice President in article 66(4). Counsel has rightly pointed out the difference in the language between the two articles. Whereas in the case of the President and Vice President the holding of an office of profit under an authority subject to the 391 control of the Government is a, disqualification, it is not so prescribed in the case of members of the legislatures. The Madarsa Durgah Khwaja Saheb Akbari in which the appellant held the appointment of a manager (mohatmin) is a school for teaching Persian, Arabic and Muslim theology. Before 1951 it was managed and run by the Government of the Nizam of Hyderabad. In 1951 this school was taken over by the Durgah Committee. On February 28, 1955, the appellant was given an honorary appointment of mohatmin (manager) of the school by the Administrator of Durgah Khwaja Saheb. He was to work under the Administrator and was to hold charge of the management of the school. But from May 1955 he was being paid Rs. 100 per month which has been variously described as salary and honorarium. Counsel for the appellant raised three questions of construction that this appointment as manager of the school amounted neither to an office nor to an office of profit nor to an office of profit under the Government. A decision favorable to the appellant on the last question, i.e., office of profit under the Government, would render the decision of the other two questions wholly unnecessary and therefore assuming that the appellant held an office of profit, the question remains: was it an office of profit under the Government and therefore fell within article 102 (1)(a) of the Constitution. In order to determine this we have to examine the provisions of the Statute under which the appointing authority came into existence and its powers under the statute. Before and up to 1936 the Durgah Khwaja Saheb Endowment was administered by a committee which was constituted by the Chief Commissioner of Ajmer under section 7 of the Religious Endowments Act (XX of 1863). In 1936 the then Central Legislature enacted the Durgah Khwaja Saheb Act (XXIII of 1936). By the provisions of that Act the management and administration was vested in Durgah Committee constituted under section 4 of the Act. It was a body corporate with perpetual succession and common seal having the right to sue and be sued in the 392 name of the president of the Committee. Under section 5 which dealt with the constitution of the Committee it was to consist of 25 members some of whom were elected and some nominated. Section 11(f) of the Act gave to the Committee the power to appoint all its servants. The Act of 1936 was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Ordinance 3 of 1949, which in turn was replaced by the Durgah Khwaja Saheb (Emergency Provisions) Act (XV11 of 1950). By section 3 of that Act the Durgah Committee constituted under the Act of 1936 was superseded and the management was vested in an Administrator appointed by the Central Government who under section 7 was to be under the control of the Central Government and had all the powers of the committee constituted under the Act of 1936. That Act continued to be in force up to February 29, 1956, and it was during its continuance that the appellant filed two nomination papers on February 28, 1956, which were rejected by the Returning Officer. The Act of 1950 was replaced by the Durgah Khwaja Saheb Act (XXXVI of 1955) which, received the assent of the President on October 14, 1955, but came into force oil March 1, 1956. Under section 4(1) of this Act the administration, control and management of the Durgah Endowment came to be vested in a Committee, which is a body corporate having perpetual succession and common seal and which can sue and be sued through its President. Under section 5 the Committee is to consist of not less than 5 and not more than 9 members. of the Hanafi Muslim faith all of whom are to be appointed by the Central Government. Section 8 gives power to the Central Government to supersede the Committee. Under section 9 the Central Government in consultation with the Committee can appoint a Nazim (administrator) of the Durgah who is an ex officio secretary of the committee. His salary is to be fixed by the Central Government but is to be paid out of the revenues of the Durgah Endowment funds. The Committee exercises its power of administration, control and management through the Nazim, 393 The powers and duties of the Committee are given in section 11 of the Act; clause (i) of this section which is relevant for the purpose of this case when quoted runs as under: s.11 " The powers and duties of the Committee shall be (i) to appoint, suspend or dismiss servants of the Durgah Endowment. " Under section 20 the Committee has the power to make bye laws to carry out the purposes of the Act, and the respondent emphasised clause (1) of sub section 2 which provides: section 20 (2) " In particular and without prejudice to the generality of the foregoing power such bye laws may provide for (i) the duties and powers of the employees of the Durgah. " Sub section 5 of this section is as follows: " (5) The Central Government may, after previous publication of its intention, cancel any bye law which it has approved and confirmed, and thereupon the bye law shall cease to have effect. " The respondent contended that because under the Act of 1955, the Committee of Management is to be appointed by the Government who also appoint the Nazim (administrator) through whom the Committee acts and because under section 6(2) the Government has the power of removal from office of any member of the Committee and because the Committee can make bylaws prescribing the duties and powers of the employees of the Durgah, the appellant was under the control and supervision of the Central Government and therefore he was holding an office of profit under the Government of India. It is significant to note that in laying down the disqualifications of the President and the Vice President the Constitution has expressly provided the disqualifications which include not only an office of profit under the Government of India or 394 the Government of any State but also an office of profit under any local or other authority subject to the control of any of the said Governments. This last disqualification the Constitution does not make applicable to the members of the legislatures. No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely because the Committee or the members of the Committee are removeable by the Government of India or the Committee can make bye laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the Committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removeable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor. But the appointment of the appellant does not come within this test. A number of election cases reported in the Election Law Reports were cited before us but they were decided on their own facts and are of little assistance in the decision of the present case. The test of the power of dismissal by the Government or by an officer to whom such power has been delegated which was pressed in support of his case by the respondent is equally inapplicable to the facts of the present case because the appellant cannot be dismissed by the Government or by a person so authorised by the Government. He is a servant of a statutory body which in the matter of its servants acts within the powers conferred upon it by the statute. The respondent then sought to fortify his sub. missions by relying on Shivnandan Sharma vs The, 395 Punjab National Bank Ltd. (1). That was a case under the Industrial Disputes Act and the question for decision was whether a cashier appointed by the Bank 's treasurer on behalf of the Bank and paid by the Bank was a servant of the Bank. It was held that he was. The rule of that case is that if the master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for cash consideration, the employees thus appointed by the servant would be, equally with the servant,, servants of the master. But that again has no application to the facts of the present case because the appellant has not been employed by a servant of the Government who is authorised to employ servants for doing some service for the Government nor is he paid out of Indian revenues. No doubt the non payment from out of the revenues of the Union is not always a factor of any consequence but it is of some importance in the circumstances of this case. A comparison of the different articles of the Constitution 58(2), 66(4), 102 (1)(a) and 19 1 (1)(a) dealing with membership of the State Legislatures shows in the case of members of the Legislatures unlike the case of the President and the Vice President of the Union the disqualification arises on account of holding an office of profit under the Government of India or the Governments of the States but not if such officer is under a local or any other authority under the control of these Governments. As we have said the power of appointment and dismissal by the Government or control exercised by the Government is an important consideration which determines in favour of the person holding an office of profit under the Government, but the fact that he is not paid from out of the State revenues is by itself a neutral factor. It has not been shown that the appellant 's appointment as a mohatmin (manager) of the school satisfies any of the tests which have been discussed above. On the other hand on March 1, 1956, he was holding (1) ; 51 396 his appointment under a Committee which is a statutory body and such appointment cannot be called an appointment by or under the control of the Government of India nor is his salary paid out of the revenues of the Government but out of the funds of Durgah Endowment. In the circumstances the majority of the Tribunal has erred in holding that the appellant held an office of profit under the Government and the opinion of the Chairman to the contrary lays down the correct position. In view of this finding in regard to the office of profit under the Government, it is not necessary to go into the question whether there were any " thrown away " votes or whether the respondent has been rightly declared to have been elected. We are of the opinion that the election of the appellant has been wrongly set aside and we would allow the appeal and set aside the order of the majority of the Tribunal. The appellant will have his costs in this court as also before the Tribunal. Appeal allowed.

The appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955. He was appointed by the administrator of Durgah Khwaja Saheb and was being paid Rs. 100 per month. He was elected to the Council of States by the Electoral College of Ajmer and the unsuccessful candidate, the first respondent, challenged the election on the ground that the appellant wag holding an office of profit under the Government at the time of the election and was, therefore, disqualified to be chosen as a member of Parliament in view of article 102(1) (a) of the Constitution of India. It was contended for the first respondent inter alia that as under sections 5 and 9 of the Act the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee, the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India. But the appellant was neither appointed by the Government of India nor removable by it nor was his salary fixed by the Government and it was paid out of the funds of the Durgah Endowment. Held, that the appellant was holding his appointment under a committee which was a statutory body and could not be considered as the holder of an office of profit under the Government of India within the meaning of article 102(1) (a) of the Constitution of India. Accordingly, the election of the appellant was valid. Shivnandan Sharma vs The Punjab National Bank Ltd., ; , distinguished.

ivil Appeal No. 5736 of 1985 & C.A. No. 508/1986. From the Judgment and Order dated 14.8.1985 of the Bombay High Court in Civil Writ Petition No. 3420 of 1983. N.N. Keswani and R.N. Keswani for the Appellants. G. Ramaswamy Additional Solicitor General, S.K. Dhola kia, Shishir Sharma, P.H. Parekh, A.S. Bhasme and V.B. Joshi for the Respondents. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. The case involved in these two appeals, with leave, seems indeed straight forward enough, but the High Court of Bombay made it, as we venture to think, unsatisfactory and in a sense against judicial pro priety and decorum. The facts which are of central importance may be stated as follows. On June 19, 1982, the Government of Maharashtra issued a draft notification under sec. 3(3) of the Bombay Provincial Municipal Corporation Act, 1949 (the "Act"). The draft notification proposed the formation of what is termed as "Kalyan Corporation" (the "Corporation"). It suggested the merging of Municipal areas of Kalyan, Ambarnath, Domoivali and Ulhasnagar. Against this proposal, there were many objections and representations from persons, companies and the authorities. Ambarnath and Ulhasnagar Municipal bodies and also some of the residents therein submitted their represen 409 tations. They objected to the merger of their municipal areas into the Corporation. It is said that in Ulhasnagar Municipal area, Sindhies are predominant. In 1947, they were the victims of partition of the country. Being uprooted from their home land, they have since settled down at Ulhasnagar. They have formed union or federation called the All India Sindhi Panchayat Federation. It is interested in having a separate identity for Ulhasnagar. The Federation challenged the said draft notification by a writ petition before the Bombay High Court. The writ petition was not disposed of on merits. It was permitted to be withdrawn on an assurance given by the Government. The Government gave the assurance that the representatives of the Federation would be given an opportunity of being heard before taking a final decision. As per the assurance, they were given personal hearing on their representations. The others who have filed similar representations were not heard. But their objections or representations were duly considered. Thereupon, the Govern ment decided to exclude Ulhasnagar from the proposed Corpo ration. Accordingly, a notification under sec. 3(2) of the Act was issued. The Corporation was thus constituted without Ulhasnagar. That was the only alteration made in the propos al earlier notified. All other areas indicated in the draft notification were merged in the Corporation. The residents of Ambarnath Municipal areas were not satisfied. They were, perhaps, more worried by the exclusion of Ulhasnagar than the inclusion of their own area. They moved the High Court under Article 226 of the Constitution challenging the notification issued under sec. 3(2) of the Act. They inter alia, contended that the action of the Government affording an opportunity of being heard only to the Federation and not to other objectors was contrary to Article 14. It was a hostile discrimination to hear only one of the objectors. They asserted that the establishment of the Corporation without Ulhasnagar Municipal area, having regard to the geographical contiguity was unintelligible and incomprehensible. It was arbitrary and opposed to the object of the Act. They also contended that there ought to have been a fresh draft notification after taking a decision to exclude Ulhasnagar from the proposal. With similar conten tions and for the same relief, there was another writ peti tion before the High Court. It was filed by the National Rayon Corporation Limited which is a company located within the Municipal limits of Ambarnath. The Sindhi Panchayat Federation was not a party to the writ petitions. It was, however, allowed as an intervener. Some other persons who were interested in the outcome of the writ petitions were 410 also permitted to intervene in the proceedings. They sup ported the stand taken by the Government which was the main respondent in the writ petitions. The State in its counter affidavit resisted the peti tioners ' claim raising several grounds. The first point to be noted in this context is this: "That the formation of Municipal Corporation under sec. 3 of the Act is an extension of the legislative process and, therefore, sec. 3 is nothing but a piece of conditional legisla tion. The principles of natural justice will not apply to such legislative function nor it could be imparted into it even by necessary implication. The petitioners have not chal lenged the validity of the sub section (2) of sec. 8 of the Act and even otherwise the said validity has been upheld by a Division Bench of this Court (Shah and Deshpande, J J) in writ petition No. 706 A of 1982 (The Village Panchayat Chikalthane and Anr. vs The State of Maharashtra and Anr. decided on 23/24 Decem ber, 1982. Therefore, it cannot be said that the notification issued in exercise of the said legislative power is vitiated by non complaince with the principles of natural justice. The conditions laid down by sec. 3 are fully complied with; a preliminary notifi cation was issued as contemplated by sub section (4) of sec. 3 of the Act; the objec tions and suggestions made by the various citizens and persons were duly considered by the State Government and thereafter the final notification was issued. In the very nature of things there is bound to be difference and variance between the preliminary notification and the final notification. Only because the Ulhasnagar Municipal Council is excluded from the final notification, it cannot be said that there was any major departure from the prelim inary notification or it was necessary to issue a preliminary notification over again before the final notification was issued in that behalf. " The second factual point to be noted is this: "Due to partition of India in 1947, the Sindhi people have been uprooted from their homeland and with hard labour they have settled them selves in different parts of the country. One can appreciate their feelings about their anxi 411 ety to maintain their separate entity. If such a large part is forcibly included in the Corporation ignoring their sentiments and wishes, it may not result in smooth working of the proposed Corporation which is necessary for proper development. It is, therefore, desirable to constitute the new Kalyan Corpo ration without including Ulhasnagar for the time being." The High Court was not impressed with the above reason ings. The High Court said that the decision to exclude Ulhasnagar was taken by the Government abruptly and in an irrational manner. The decision was arbitrary and against the purpose of the Act. On the legality of the procedure followed by the Government, the High Court said: "Once that decision was taken, it was obliga tory on the part of the Government to recon sider the proposal as a whole so far as the rest of the areas are concerned." Reference was also made to the report of the "Sathe Commission" to fortify the conclusion that Ulhasnagar could not have been isolated. The "Sathe Commission" was a one man Commission appointed by the State Government to enquire and report on the establishment of new Municipal Corporations. The Commission in its report among others, seems to have indicated that Kalyan, Ulhasnagar and Ambarnath are one contiguous stretch of territory with a length of about 8 kms. from North West to South East. The High Court then made some general observations as to the purpose for which Municipal Corporations should be constituted went on: "It was the avowed policy after independence to change the socio economic map of the vil lage and town. A corporate life can only be ensured if there is a corporate conscience and an attitude to live together. City is an epitome of the social world where all belts of civilization interest along its avenues. A Municipal Corporation is . . in nature, where people belonging to different castes, creeds, religious and language want to live with each other. Town planning cannot be denominational or fractional. It is not a museum of human beings otherwise Harijan Bastis, Mominpures and such other Mohallas will have to be preserved to maintain its separate identity and the socio 412 economic map of the village or city will never change. It cannot be forgotten that we are heading towards a global village. By saying this, we do not want to belittle the achieve ments of sacrifice of the Sindhi Community. However, that is not very relevant for decid ing the question of the establishment of a Municipal Corporation. Its main object is to ensure better municipal government of the city. It appears that Government was also aware of this and this seems to be the reason why the decision "for the time being is perti nent and clearly indicates that the Government wanted to reconsider the issue at a later stage. However, unfortunately till today Government has not taken any decision in that behalf. " The High Court, however, felt that it was not necessary to quash the notification establishing the Corporation. This is how the conclusion was reached: "It will not be fair to quash the notification as a whole and unsettle the Municipal Adminis tration. In our view, that is also not neces sary since from the affidavit of the Govern ment, it is clear that the decision taken in that behalf was tentative, i.e., for the time being and it is not all time permanent deci sion. Under sub section (3) of sec. 3 of the act, the State Government has power to exclude or include any area specified in the notifica tion issued so far as Ambarnath Town is con cerned, reconsideration of the present case of the whole matter was absolutely necessary when the decision to exclude the Ulhasnagar Munici pal Council from the proposed Municipal Corpo ration, ,though tentative in nature, was taken. " Finally, the operative portion of the Order was put in the following terms: "Therefore, without setting aside the final notification, we direct the State Government to reconsider the proposal under sub sec. (3) of sec. 3 of the Bombay Provincial Municipal Corporations Act either to exclude or include any area, within a period of six months from today. The writ of mandamus to be issued accordingly. It is needless to say that after the necessary steps are taken under sec. 3(3) of the Act, the State Government shall make the necessary 413 amends in the notification issued. XXX XXX XXX XXX XXX XXX XXX XXX "In the result, therefore, the rule is made partly absolute and the State Government is directed to exercise its power under sec. 3 sub sec. (3) of the Act in accordance with law within a period of six months. It is needless to say that the petitioners will be entitled to raise objections and make their suggestions in that behalf after a notification under sub sec (3) read with sub sec (4) of sec. 3 of the Act is issued. Since the popular local self Government is not in existence in any of the Municipal Councils or even in the newly established municipal corporation and having regard to the peculiar facts and circumstances of the case, in our view, this is a fit case where the petitioners of these two petitions and All India Sindhi Panchayat Federation should be given a reasonable opportunity of being heard before any final decision in the matter is taken. " Against the judgment of the High Court, the State Gov ernment has not preferred any appeal. The Kalyan City Corpo ration though vitally concerned with the matter, has also not appealed to this Court. The present appeals are only by those who were impleaded as interveners in the writ peti tions. We have heard counsel for all parties and gave our best attention to the questions raised by the appellants. Counsel for the appellants reiterated the stand taken by the Govern ment before the High Court. He urged that the State has a wide discretion in the selection of areas for constituting the Corporation and the Court cannot interfere with such discretion. The Court has no jurisdiction to examine the validity of the reason that goes into the decision of the Government. The power to constitute Municipal Corporations under sec. 3 of the Act is legislative in character. It is an extension of legislative process for which rules of natural justice have no application. He said that the Gov ernment in the instant case has complied with the statutory requirements and it was not expected to do anything more in the premises. And, at any rate, it is wholly unnecessary according to the counsel to go through that exercise again as the High Court has suggested. 414 The other limb of the argument of counsel for the appel lants relates to the manner in which the High Court disposed of the matter. it was said that a decision of this Court has been disregarded and a binding decision of a co ordinate Bench of the same Court has been ignored. The grievance of the appellants ' counsel, in our opin ion, is not wholly unjustified. At the beginning of the judgment, we have said that the High Court rendered the judgment in a sense against the judicial propriety and decorum. We were not happy to make that observation, but constrained to say so in the premise and background of the case. It may be noted that the result of the writ petitions before the High Court turns on the nature and scope of the power conferred on the Government under sec. 3 of the Act. A Division Bench of the High Court has taken the view that that power is in the nature of legislative process. That judgment was rendered on 23/24 December, 1982, by a Bench consisting of Shah and Deshpande, JJ. It was in writ peti tion No. 706 A of 1982 The Village Panchayat Chikalthana and Another vs The State of Maharashtra and Another, In that case, the challenge was to the validity of sec. 3(2) of the Act on the ground that it suffers from the vice of excessive delegation for want of guidelines for the exercise of power. Repelling the contention, it was held that sec. 3 is in the nature of a conditional legislation and, therefore, laying down the policy or guidelines to exercise the power was unnecessary. It was emphasized that the exercise of power under sec. 3(2) is conditioned by only two requirements, viz., (1) previous publication as contemplated by sub sec. (4) of sec. 3 of the Act, (2) issuance of a notification by the Government after such previous publication. Once the Government publishes such a notification, the legislation becomes complete and the other provisions of the Act are ipso facto attracted to the Corporation so constituted. This was the view taken by the High Court in Chikalthane case. To reach that conclusion, the learned judges relied upon the decision of this Court in Tulsipur Sugar Company, case ; The attention of the High Court in the present case was drawn to the decision in Chikalthane, case. Counsel for the State and interveners seemed to have argued that the present case really fell fairly and squarely within what was said there. They were indeed on terra firma since the decision in Chikalthane case was a clear authority against every conten tion raised by the petitioners. Faced with this predicament, counsel for the petitioners urged before the High Court that their case should be referred to a larger Bench to reconsid er the deci 415 sion m Chikalthane, case. But learned Judges, (Dharmadhikari and Kantharia, J J) did not heed to that submission. They neither referred the case to a larger Bench nor followed the view taken in the Chikalthane, case. It was not as if they did not comprehend the issue to be determined and the prin ciple to be applied. They were very much aware of it when they remarked: "In our opinion, once it is accepted that this is a piece of conditional legislation, then it will have to be held that the principle of natural justice would not apply to such a case as held by the Division Bench of this Court in village Panchayat Chikalthane 's case nor it could be said that because under a mistaken notice the Federation was heard, the denial of such a right to the petitioners will amount to hostile discrimination within the contempla tion of Article 14 of the Constitution of India. " After referring to these simple legal principles, it is unfortunate that the issue at stake was little explored. The key question raised in the case was side tracked and a new strategy to interfere with the decision of the Government was devised. The learned Judges directed the Government to publish again a draft notification for reconsideration of the matter. They gave liberty to the writ petitioners and the interveners to submit their representations. They ob served that "this is a fit case where the parties should be given a reasonable opportunity of being heard. " They did not quash the impugned notification, but told the Government to make necessary changes in the light of fresh consideration. All these directions were issued after recording a positive finding that the exclusion of Ulhasnagar from the Corpora tion was arbitrary and irrational. The net result of it is that there is now no discretion with the Government to keep Ulhasnagar away from the Corporation. It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal pro priety demand that where a learned single judge or a Divi sion Bench does not agree with the decision of a Bench of co ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. 416 Deprecating this kind of tendency of some judges, Das Gupta, J., in Mahadeolal Kanodia vs The Administrator Gener al of West Bengal, AIR 1960 SC 926 said (at 941): "We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin 's case, 1954 Cal 119) was cited before the learned Judges who heard the present appeal they took on themselves to say that the previ ous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring no less than legal propriety form the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co ordinate jurisdiction in a High Court start overruling one another 's decision. " The attitude of Chief Justice, Gajendragadkar, in Lala Shri Bhagwan and Anr. vs Ram Chand and Anr. , ; was not quite different (at 1773): "It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single, Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single judge, but should refer the matter to a Divi sion Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is rounded on healthy principles of judi cial decorum and propriety. It is to be re gretted that the learned Judges departed from this traditional way in the present case and choose to examine the question himself. " The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court. Speaking for the Constitution Bench Union of India vs Raghubir Singh, ; learned Chief Justice said (at 766): "The doctrine of binding precedent has the merit of pro 417 moting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transac tions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the deci sions of a Court. " Cardozo propounded a similar thought with more emphasis: "1 am not to mar the symmetry of the legal structure by the introduction of inconsisten cies and irrelevancies and artifical excep tions unless for some sufficient reason, which will commonly by some consideration of history or custom or .policy or justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another" (The Nature of the Judicial Process by Benjamin N. Cardozo p.33) In our system of judicial review which is a part of our Constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more pre dictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute. Judge learned Hand has referred to the tendency of some judges "who win the game by sweeping all the chessmen off the table". (The Spirit of Liberty by Alfred A. Knopf, New York (1953) p. 131). This is indeed to be deprecated. It is needless to state that the judgment of superior courts and Tribunals must be written only after deep travail and posi tive vein. One should never let a decision go until he is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new content. The principle of law may develop side by side with new content but not 418 with inconsistencies. There could be waxing and wanning the principle depending upon the pragmatic needs and moral yearnings. Such development of law particularly, is inevita ble in our developing country. In Raghubir Singh, case, learned Chief Justice Pathak had this to say ; at 767: "Legal compulsions cannot be limited by exist ing legal propositions, because, there will always be, beyond the frontiers of the exist ing law, new areas inviting judicial scrutiny and judicial choice making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness" but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters. And he continued: The universe of problems presented for judi cial choicemaking at the growing points of the law is an expanding universe. The areas brought under control by the accumulation of past judicial choice may be large. Yet the areas newly presented for still further choice, because of changing social, economic and technological conditions are far from inconsiderable. It has also to be remembered, that many occasions for new options arise by the mere fact that no generation looks out on the world from quite the same vantage point as its predecessor, nor for that matter with the same perception. A different vantage point or a different quality of perception often re veals the need for choicemaking where formerly no alternatives, and no problems at all, were perceived. " Holmes tells us: "The truth is, that the law is always ap proaching, and never reaching, consistency. It is forever adopting new principles from life at the end, and it always retains old ones from history at the other, which have not yet been absorbed or 419 sloughed off. It will become entirely consist ent only when it ceases to grow." (Holmes the Common Law, p. 36 (1881). Apart from that the judges with profound responsibility could iII afford to take stolid satisfaction of a single postulate past or present in any case. We think, it was Cicero who said about someone "He saw life clearly and he saw it whole"; The judges have to have a little bit of that in every case while construing and applying the law. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative. Counsel for the appellants was right in his submission that it is legisla tive process indeed. No judicial duty is laid on the Govern ment in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with,, then, the Court could say no more. In the present case the Government did publish the proposal by a draft notification and also con sidered the representations received. It was only thereaf ter, a decision was taken to exclude Ulhasnagar for the time being. That decision became final when it was notified under Section 3(2). The Court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even "its juster will for theirs. " Equally, the rule issued by the High Court to hear the parties is untenable. The Government in the exercise of its powers under Section 3 is not subject to the rules of natu ral justice any more than is legislature itself. The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hear ing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to hear the parties who are not entitled to be heard under law. Megarry, J., in Bates vs Lord Hailsham of St. Marylebone and Ors., while dealing with the legisla tive process under Section 56 of the Solicitors Act, 1957 said (at 1378): "In the present case, the committee in ques tion has an entirely different function: it is legislative rather than 420 administrative or executive. The function of the committee is to make or refuse to make a legislative instrument under delegated powers. The order, when made, will lay down the remu neration for solicitors generally and the terms of the order will have to be considered and construed and applied in numberless cases in the future. Let me accept that in the sphere of the so called quasi judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. Of course, the informal consultation of repre sentative bodies by the legislative authority is a commonplace; but although a few statutes have specifically provided for a general process of publishing draft delegated legisla tion and considering objections (see, for example, the Factories Act 1961 Schedule 4), I do not know of any implied right to be con sulted or make objections, or any principle upon which the courts may enjoin the legisla tive process at the suit of those who contend that insufficient time for consultation and consideration has been given. I accept that the fact that the order will take the form of a statutory instrument does not per se make it immune from attack, whether by injunction or otherwise; but what is important is not its form but its nature, which is plainly legisla tive. " There are equally clear authorities on this point from this Court. The case in Tvlsipur Sugar Co. Ltd. vs The Notified Area Committee, Tulsipur, ; was indeed a hard case. But then, this Court did not make a bad law. There a notification dated August 22, 1955 was issued under Section 3 of the U.P. Town Area covering the petition er 's factory. Consequently, the octroi was levied on goods brought by the factory management into the limits of Town Area Committee. The Company questioned the validity of that notification. The case pleaded was that the company had no opportunity to make representation regarding the advisabili ty of extending the limits of the Town Area Committee. Venkataramiah, J., as the present learned Chief Justice then was, while rejecting the contention observed (111920): 421 "The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the applica tion of the rest of provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of functions of a non judicial authori ty, Prof. S.A. De Smith in Judicial Review of Administrative Action (third edition) observes at page 163: "However, the analytical classi fication of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordi nate legislative instrument need not be pre ceded by notice or hearing unless the parent Act so provides." In Baldev Singh vs State of Himachal Pradesh, a similar question arose for consideration. An attempt was made to constitute a notified area as provided under Section 256 of the Himachal Pradesh Municipal Act, 1968, by including portions of the four villages for such purposes. The residents of the villages who were mostly agriculturists challenged the validity of the notification before the High Court on the ground that they had no oppor tunity to have their say against that notification. The High Court summarily dismissed the writ petition. In the appeal before this Court, it was argued that the extension of notified area over the Gram Panchayat limits would involve civil consequences and therefore, it was necessary that persons who would be affected thereby ought to be given an opportunity of being heard. Ranganath Misra, J., did not accept that contention, but clarified (at 515): "We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Section 256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after con sidering the view of the residents. Denial of such opportunity is not in consonance with the scheme of the rule of law governing our socie ty. We must clarify that the hearing contem plated is not required to be oral and can be by inviting objections and disposing them of in a fair way. " The principles and precedents thus enjoin us not to support the 422 view taken by the High Court. We may only observe that the Government is expected to act and must act in a way which would make it consistent with the good administration. It is they, and no one else who must pass judgment on this mat ter. We must, therefore, leave it to the Government. In the result and for the reasons stated, we allow the appeals and set aside the judgment of the High Court. In the circumstances of the case, we make no order as to costs. Y. Lal Appeals allowed.

The petitioners were arrested on March 23, 1988 and produced before the Chief Metropolitan Magistrate, who remanded them to jail custody. During the pendency of peti tioner 's application for bail, the prosecution filed charge sheet on June 23, 1988 for offences under Section 21, 23 and 29 of the . Thereafter, on the petitioners ' application for bail under Section 167(2) Cr. P.C. on the ground that the charge sheet was filed after the expiry of ninety days of their arrest, the Magistrate enlarged them on bail. On an application, under sec. 439(2) read with Section 482 of the Cr. P.C., filed by the prosecution for cancella tion of the bail, stating that since two of the accused were earlier absconding, the investigation in the case could not be completed within the time frame, the High court cancelled the bail order. Hence, the special leave applications by the petitioners. On the question: whether the discretion exercised by the High Court was legally sustainable and whether the accused had a special right to remain on bail merely because they had been enlarged under Proviso (a) to Section 167(2) of the Code, 378 Dismissing the Special Leave Petitions, HELD: An order for release on bail under proviso (a) to Section 167(2) of the Code of Civil Procedure may appropri ately be termed as on order on default. Indeed, it is a release on bail on the default of the prosecution in filing charge sheet within the prescribed period. The right to bail under the provision is absolute. It is a legislative command and not Court 's discretion. If the investing agency fails to file chargesheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. At that stage, merits of the case are not to be exam ined. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the ac cused to furnish the requisite bail bonds. [381E G] The accused cannot claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled under Sections 437(5) or 439(2) of the Code. [381H] In the instant case, the offences alleged are of serious nature and the discretion exercised by the High Court does not call for any interference. [382A] Raghubir Singh vs State of Bihar, ; , referred to.

tition (Civil) No. 13227 of 1984 etc. (Under Article 32 of the Constitution of India.) Pankaj Kalra for the Petitioner in W.P. No. 13227 of 1984. M/s. Harbans Lal, V.C. Mahajan, Mahabir Singh, Avadh Behari Rohtagi, S.S. Banerjee, M.S. Gujaral, K.G. Bhagat, Hardev Singh, Yogeshwar Prasad, Anil Dev Singh, Govind Das, and K.P. Bhandari, M/s. S.M. Ashri, G.K. Bansal, J.S. Malhotra, Ali Ahmed, Jayashree Ahmed, C.K. Bansal, Narendra Singh Malik, D.K. Garg, B.P. Maheshwari, Vidya Sagar Vashist, S.N. Agarwal, S.K. Jain, S.K. Dhingra, M.L. Verma, S.K. Bagga, Ranbir Singh Yadav, H.M. Singh, Kirpal Singh, Amlan Ghosh, M. Qamaruddin, Mrs. M. Qamaruddin, R.K. Kapur, M.M. Kashyap, B.R. Kapur, Anil Katyal, O.P. Sharma, Amis Ahmad Khan, R.C. Kapoor, Mrs. Laxmi Arvind, Suresh C. Gupta, S.S. Ray, Anil Bhatnagar, 404 Praveen Kumar, Ashok Mathur, M.K. Dua, P.N. Puri, Gyan Singh, I.S. Goel, S.N. Singh, C.V. Subba Rao, V.M. Issar, Khaitan & Co., Brij Bhushan Sharma, P. Narasimhan, Ms. Madhu Mool Chandani, K.K. Jain, Pramod Dayal, A.D. Sangar, A.K. Ganguli, A. Mariaputam, Nafiz Ahmad Siddiqui, M.C. Dhingra, Avtar Singh Sonal, Shreepal Singh, S.R. Srivastava, Ashok K. Srivastava, Balmukand Goel, S.K. Bhulakia, R.C. Bhatia, R.K. Agnihotri, Dr. Meera Aggarwal, R.C. Misra, M.S. Dhillon, S.K. Dholakia, P. Narasimhan, R.K. Agarwal, T. Sridharan, S.C. Patel, N.M.Popli, Brij Bhushan and Kailash Mehta for the appearing parties. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The archaic right of pre emption based on consanguinity is in question in the several thousand writ petitions under article 32 of the Constitution. The constitutional validity of sec. 15 of the Punjab Pre emption Act, 1913 was applicable in the State of Haryana which incorporates this right is challanged. The State of origin of the Punjab Pre emption Act, the State of Punjab, has repealed the Act in 1973. The Act, however, continues to be in force in the State of Haryana which originally formed part of the State of Punjab. The vires of sec.15(1)(a) of the Act was questioned in this Court in Ram Sarup vs Munshi and Ors. ; on the ground that it offended the fundamental right guaranteed by sec.19(1)(f) of the Constitution. It was ruled by a Constitution Bench that there was no infringement of Art.19(1)(f) and that the provision was valid. The validity of sec.15 is now impugned primarily on the ground that it offends articles 14 and 15 of the Constitution. The right of pre emption based on consanguinity has been variously described by learned judges as 'feudal ', 'piratical ', 'tribal ', 'weak ', 'easily defeated ', etc. [Ralwa vs Vaaakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at 490 and Bishan Singh vs Khazan Singh [1959] S.C.R. 878. Fusing as it does the Lies of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character. The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture. It 405 is a well known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group. The right of pre emption based on consanguinity is a consequence flowing out of this characteristic. It is entirely inconsistent with our Constitutional scheme. Since the Forty Second Amendment, India is a socialist republic in which feudalism can obviously have no place and must go. Our Constitution now proclaims India as a sovereign, socialist, secular democratic republic in which the right to equality before the law and the equal protection of the laws are guaranteed and all citizens are assured that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them. The citizens are also assured of the right to move freely through out the territory of India, to reside or settle in any part of the territory of India and to practise any profession or to carry on any occupation, trade or business. The State is further enjoined to direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. The right to property has also now ceased to be a fundamental right since the Forty Fourth Amendment. The question now is whether this adjunct of the right to property, perhaps perfectly reasonable in a feudal society, can be constitutionally sustained in a society dedicated to socialistic principles. The question has to be examined with reference to articles 14, 15 and 19(1)(d) and (g), in the background of the Preamble to the Constitution and Art.39(c) of the Directive Principles of State Policy. We think that the question has to be primarily answered with reference to Art 14. The Punjab Pre emption Act, 1913 repealed the Punjab Pre emption Act of 1905 and sec.12 of the 1905 Act which corresponded to sec.15 of the 1913 Act was as follows: "12. Subject to the provisions of section 11, the right of pre emption in respect of agricultural land and village immovable property shall vest (a) in the case of the sale of such land or property by a sole owner or occupancy tenant, or when such land or property is held jointly, by the co sharers, 406 in the persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession; (b) in the case of a sale of share of such land or property held jointly first in the lineal descendants of the vendor in the male line in order of succession; secondly, in the co shares, if any, who are agnates, in order of succession; thirdly, in the persons described in sub clause (a) of this sub section and not hereinbefore provided for; fourthly, in the co sharers, (i) jointly, (ii) severally; (c) As section 15(c), Act of 1913, with the addition of words (i) jointly, (ii) severally, in secondly, thirdly and fourthly. Explanation 1. In the case of sale of a right of occupancy, clauses (a), (b) and (c) of this sub section, with the exception of sub clause fourthly of clause (c), shall be applicable. Explanation 2. In the case of a sale by a female of property to which she has succeeded through her husband, son, brother or father, the word 'agnates ' in this section shall mean the agnates of the person through whom she has so succeeded. " Section 15 of the Punjab Pre emption Act, 1913 as it originally stood, was as follows: "15. Subject to the provisions of section 14 the right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly 407 owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold: (b) where the sale is of a share out of joint land or property, and is, not made by all the co sharers jointly, firstly, in the lineal decendants of the vendor in order of succession; secondly, in the co sharers, if any, who are agnates, in order of succession; thirdly in the persons, not included under firstly or secondly, above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold; fourthly, in the co sharers: (c) If no person having a right of pre emption under clause (a) or clause (b) seeks to exercise it, firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior proprietors, and when the inferior right is sale, in the superior proprietors; secondly, in the owners of the patti or other sub division of the estate within the limits of which such land or property is situate; thirdly, in the owners of the estate; fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property; 408 fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated. Explanation In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word (agnates ' in this section shall mean the agnates of the person through whom she has so succeeded. In 1960, there were substantial amendments to the Punjab Pre emption Act and, after amendment, sec.15 was as follows: "15. Persons in whom right of pre emption vests in respect of sales of agricultural land and village immovable property (1) The right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner First, in the son or daughter or son 's son or daughter 's son of the vendor; Secondly, in the brother or brother 's son of the vendor: Thirdly, in the father 's brother or father 's brother 's son of the vendor; Forthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof; (b) where the sale is of a share out of joint land or property and is not made by all the co shares jointly First, in the sons or daughters or sons ' son or daughters ' sons of the vendor or vendors; Secondly, in the brothers or brother 's sons of the vendor or vendors; 409 Thirdly, in the father 's brother or father 's sons of the vendor or vendors; Fourthly, in the other co sharers; Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof; (c) where the sale is of land or property owned jointly and is made by all the co sharers jointly First, in the sons or daughters or sons ' sons or daughter 's sons of the vendors; Secondly, in the brothers or brother 's sons of the vendors; Thirdly, in the Father 's or brother 's or father 's brother 's sons of the vendors: Fourthly, in the tenants, who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof. (2) Notwithstanding anything contained in subsection(1) : (a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre emption shall vest: (i) if the sale is by such female, in her brother or brother 's son; (ii) if the sale is by the son or daughter of such female, in the mother 's brothers or the mother 's brother 's sons of the vendor or vendors; (b) where the sale is by a female of land or 410 property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre emption shall vest, FIRST, in the son or daughter of such (husband of the) female; SECONDLY, in the husband 's brother or husband 's brother 's son of such female. " Agricultural land has been defined in the Act to mean land as defined in the Punjab Alienation of Land Act, not including the rights of a mortgagee, whether usufructuary or not, in such land. 'Member of an agricultural tribe ' and 'Group of agricultural tribes ' are to have the same meanings assigned to them respectively under the Punjab Alienation of Land Act. The Punjab Alienation of Land Act has been repealed, but the definitions continue to have force for the purposes of the Punjab Pre emption Act. Section 4 of the Punjab Preemption Act states what the right of Pre emption is. It says : "4. Right of pre emption application of The right of pre emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale. " t Section 5(b) prescribes that there shall be no right of pre emption in respect of the sale of agricultural land being waste land reclaimed by the vendee. Section 6 provides that a right of pre emption shall exist in respect of village immovable property and subject to the provisions of section 5(b), in respect of agricultural land, but only subject to all the provisions and limitations contained in the Act. Section 7 refers to the right of pre emption in respect of urban immovable property. Section 8 enables the Government to 411 declare by a notification that there shall be no right of pre emption in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales. Section 10 prevents a party to a sale along with other joint owners from claiming a right to pre emption. In respect of land sold by a member of an agricultural tribe, section 14 provides that no person who is not a member of the same agricultural tribe as the vendor shall have a right of pre emption. We have already extracted section 15. Section 16 refers to the vesting of the right of pre emption in the case of an urban immovable property Section 17 prescribes how the right of pre emption may be exercised where several persons are entitled to such right. Other provisions deal with the procedure to be followed for the exercise of the right of pre emption. Now, to the question at issue and first, a word about interpretation. Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule is to look to the Preamble to the Constitution as the guiding light and to the Directive Principles of State Policy as the Book of Interpretation. me Preamble embodies and expresses the hopes and aspirations of the people. The Directive Principles set out proximate goals. When we go about the task of examining statutes against the Constitution, it is through these glasses that we must look, 'distant vision ' or 'near vision '. The Constitution being sui generis, where Constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted may be misplaced. Originally the Preamble to the Constitution proclaimed the resolution of the people of India to constitute India into 'a Sovereign Democratic Republic ' and set forth 'Justice, Liberty, Equality and Fraternity ', the very rights mentioned in the French Declarations of the Rights of Man as our hopes and aspirations. That was in 1950 when we had just emerged from the colonial feudal rule. Time passed. The people 's hopes and aspirations grew. In 1977 the 42nd amendment proclaimed India as a Socialist Republic. The word 'socialist ' was introduced into the Preamble to the Constitution. The implication of the introduction of the word 'socialist ', which has now become the centre of the hopes and aspirations of the people a beacon to guide and inspire all that is enshrined in the 412 articles of the Constitution , is clearly to set up a "vibrant throbbing socialist welfare society" in the place of a "Feudal exploited society". Whatever article of the Constitution it is that we seek to interpret, whatever statute it is whose constitutional validity is sought to be questioned, we must strive to give such an interpretation as will promote the march and progress towards a Socialistic Democratic State. For example, when we consider the question whether a statute offends Article 14 of the Constitution we must also consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the Preamble and the Directive Principles enumerated in Part IV of the Constitution. A classification which is not in tune with the Constitution is per se unreasonable and cannot be permitted. With these general ennunciations we may now examine the questions raised in these writ petitions. We may first refer to two decisions of this court where the court had occasion to consider the question of the constitutional validity of the right of pre emption incorporated in the Rewa State Pre emption Act and the Punjab Pre emption Act in relation to article 19(1)(f) of the Constitution. In Bhau Ram vs B. Baijnath Singh [1962] Suppl, 3 S.C.R. 724, a Constitution Bench of this court had occasion to consider the question whether a provision of the Rewa State Pre emption Act which gave a right of pre emption based on vicinage and the provisions of the Punjab Pre emption Act, 1913 which gave a right of pre emption to co sharers offended Art.19(1)(f) of the Constitution. It was held that a right of pre emption by vicinage offended Art.19(1)(f) and that a right of pre emption in favour of co sharers did not. While dealing with the provision of the Rewa Act relating to pre emption by vicinage, the Constitution Bench not only held that the right to pre emption by vicinage offended article 19(1)(f), but also appeared to indicate that the right might also offend the fundamental right guaranteed by Art.15. Wanchoo, J., speaking for the court said : "Before the Constitution came into force, the statutes if they were passed by competent authority, could not be challenged; but we have now to judge the reason ableness of these statutes in 413 the light of the fundamental rights guaranteed to the citizens of this country by the Constitution. In a society where certain classes were privileged and preferred to live In groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity of class of people and in those times a right of pre emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable. But the constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore the ostensible reason for pre emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre emption based on vicinage was really meant to prevent strangers i.e. people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of pre emption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guranteed under Art.19(1)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day. " Considering the question relating to the right of pre emption given to co sharers in the Punjab Pre emption Act, 1913, the court observed : 414 "The question as to the constitutionality of a law of pre emption in favour of a co sharer has been considered by a number of High Courts and the constitutionality has been uniformly upheld. We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest of the general public. If an outsider is introduced is a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. The result of the law of pre emption in favour of a co sharer is that if sales take place the property may eventually come into the hands of one co sharer as full owner and that would naturally be a great advantage the advantage is all the greater in the case of a residential house and s.16 is concerned with urban property; for the introduction of an outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law of pre emption are clear and in our opinion outweight the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property. On the whole it seems to us that a right of pre emption based on co sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interests of the general public. In Bhau Ram 's case, there was also a question relating to the right of pre emption granted by s.174 of the Berar Land Revenue Code in favour of occupants in a survey number in respect of transfers of interests in that survey number. Referring to the provisions of the Berar Land Revenue Code, it was held that the law of pre emption in s.174 applied to those who were co sharers or akin to co sharers and was not an unreasonable restriction on the right guaranteed by Art.19(1)(f). The question whether section 15(1)(a) of the Punjab 415 Pre emption Act, 1913 (as amended in 1960) which granted a right of pre emption in respect of agricultural land and village immovable property (where the sale was by a sole owner) to the son or daughter or son 's son or daughter 's son of the vendor, offended the fundamental right guaranteed by Art.19(1)(f) of the Constitution was considered by a Constitution Bench of the court in Ram Sarup vs Munshi and Ora. (supra). Before the Constitution Bench, the following five grounds were relied upon to vindicate the reasonableness of sections 15 and 16 of the Act : (i) to preserve the integrity of the village and the village community; (ii) to avoid fragmentation of holdings; (iii) to implement the agnatic theory of the law of succession; (iv) to reduce the chances of litigation and friction and to promote public order and domestic confort: and (v) to promote private and public decency and convenience. It was held that the ground of "promotion of public order and domestic comfort" and "private and public decency and convenience" had relevance to urban immovable property which was dealt with in s.16 and not to agricultural property which was dealt with in s.15. It also held that the ground of avoidance of chances of litigation had no relevance and further that the ground of avoidance of fragmentation of holdings was of no assistance to sustain the claim of a son to pre empt in the event of a sale by a sole owner father as that criterion was of real relevance in the case of the right of pre emption given to co sharers and the like. In regard to the ground relating to preservation of the integrity of the village and the village community, the court held that it was not a final and conclusive answer to the argument against the reasonableness of the provision. me court however upheld s.l5(1)(a) as a reasonable restriction in the interest of the general public on the basis of the third ground which was that 416 the next in succession should have the chance of retaining the property in the family. It was observed that the son and other members of the family though not entitled to a present interest in the property or a right to prevent the alienation, would nevertheless have a legitimate expectation founded on and promoted by the consciousness of the community. It was observed that if the social consciousness did engender such feelings, and taking into account the very strong sentimental value that was attached to the continued possession of family property in the Punjab, it could not be said that the restriction on the right of free alienation imposed by s.l5(1)(a) limited as it was to a small class of near relations of the vendor was either unreasonable or not in the interest of the general public. In Sant Ram vs Labh Singh, A.I.R. 1965 S.C. 314, it was held that the reasons given by the court in Bhau Ram 's case tc invalidate the right of pre emption based on vicinage held good to invalidate such a custom also. In the first case, (Bhau Ram 's case), the right of preemption given to co sharers was held to be a reasonable restriction on the right to held, acquire or dispose of property conferred by article 19(1)(f) of the Constitution. What has been said there to uphold the right of pre emption granted to a co sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co sharers as a class by themselves for the purpose of vesting in them the right of pre emption. We do not think that it is necessary to re state what has been said in that case. We endorse the views expressed therein. The right of pre emption vested in a tenant can also be easily sustained. There can be no denying that the movement of all land reform legislations has been towards enabling the tiller of the soil to obtain proprietory right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor. The right of pre emption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There can be no doubt that tenants form a distinct class by themselves and the right of pre emption granted in their favour is reasonable and in the public interest. We are, therefore, of the view that clause 'fourthly ' of s.15(1)(a), clauses 'fourthly 417 and fifthly ' of s.15(1)(b) and clause 'fourthly ' of section 15(1) (c) are valid and do not infringe either article 14 or 15 of the Constitution. We now come to the primary question whether the right of pre emption based on consanguinity and contained in the remaining clauses of sec.15(1)(a), (b) and (c) and sec. 15(2)(a) and (b) can be sustained. Earlier we have briefly indicated the character of the right of pre emption based on consaguinity. In the counter affidavit, the classification in favour of the persons mentioned in 9.15 is sought to be justified in the following manner "The classifications has been made on reasonable basis in the interests of the public : (i) to preserve integrity of village community; (ii) to avoid fragmentation of holdings; (iii) to implement the agnatic theory of succession; (iv) to promote public and private decency; (v) to facilitate tenants to acquire ownership rights; (vi) to reduce litigation consequent to introduction of an outsider on family property or jointly owned property. These were the very factors which were put forward to support the plea in Ram Sarup 's case that s.15(1)(a) was a reasonable restriction on the right to hold acquire or dispose of property conferred by article 19(1)(f) of the Constitution. As pointed out in Ram Sarup 's case, avoidance of fragmentation of holdings, promotion of private and public decency and reduction of litigation do not seem to have any relevance to the right of pre emption, vested in the kinsfolk of the vendor. The real question is whether a classification in favour of the kinsfolk of the vendor can be considered reasonable so as to justify a right of pre emption in their 418 favour for the purpose of preserving the integrity of the village community or implementing the agnatic theory of succession or preserving the unity and integrity of the family, We do not think that the classification can be considered reasonable in the circumstances prevailing today whatever Justification there might have been for the classification in 1960 when the legislature amended s.15 of the Punjab Pre emption Act. Apart from the courts characterising the right as 'archaic ', 'feudal ', 'piratical ' 'outmoded ' and so on, the Punjab legislature recognised the incongruity of the right in modern times and repealed it in 1972. We find it difficult to uphold the classification on the basis of unity and integrity of either the village community or the family or on the basis of the agnatic theory of succession which is again in a way connected with the integrity of the family. It is well known and, we may take judicial notice of it, that not only has there been a green and a white revolution in Haryana, this State is also in the process of an industrial revolution. Industries have sprung up through out the State and the population has been in a State of constant flux and movement. The traditional integrity of the village and the family have now become old wives ' tales. Tribal loyalities have disappeared and family ties have weakened. Such is the effect of the march of history and the consequence of industrialisation, mechianisation of agriculture, development of marketing and trade, allurement of professions and office, employment opportunity elsewhere and so on. The processes of history cannot be reversed and we cannot hark back to the traditional rural family oriented society. Quite apart from the break up of the integrity of village life and family life, it is to be noticed that the property in respect of which the right of pre emption is to be exercised is property of which the vendor or the vendors, as the case may be, have rights of full ownership and their kinsfolk have no present right whatsoever. The right of pre emption is not to be confused with the right to question the alienation of ancestral immovable property which the male lineal descendants of the vendor have under the Punjab Custom (Power to Contest) Act, 1920. The right of pre emption is now entirely a statutory right and dissociated from custom or personal law. A scrutiny of the list of persons in whose favour the right of pre emption is vested under s.15 reveals certain 419 glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession. First we notice that neither the father nor the mother figures in the list though the father 's brother does. me son 's daughter and the daughter 's brother does. The son 's daughter and the daughter 's daughter do not appear though the son 's son and daughter 's son do. The sister and the sister 's son are excluded, though the brother and the brother 's son are included. Thus relatives of the same degree are excluded either because they are women or because they are related through women. It is not as if women and those related through women are altogether excluded because the daughter and daughter 's son are included. If the daughter is to be treated on a par with the son and the daughter 's son is treated on a par with the son 's son it does not appear logical why the father 's son (brother) should be included and not the father 's daughter (sister). These are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in s.15 as entitled to the right of pre emption. It is ununderstandable why a son 's daughter, a daughter 's daughter, a sister or a sister 's son should have no right of pre emption whereas a father 's brother 's son has that right. As s.15 star, s, if the sole owner of a property sells it to his own father, mother, sister, sister 's son, daughter 's daughter or son 's daughter, the sale can be defeated by the vendor 's father 's brother 's son claiming a right of pre emption. We are thus unable to find any justification for the classification contained in section 15 of the Punjab Preemption Act of the kinsfolk entitled to pre emption. The right of pre emption based on consanguinity is a relie of the feudal . It is totally inconsistent with the Constitutional me. It is inconsistent with modern Ideas. The reasons such justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, . unity of family life and the agnatic theory of succession are today irrelevant. me list of kinsfolk mentioned as entitled to pre emption is intrinsically defective and self contradictory. There is, therefore, no reasonable classification and clauses 'First ', 'Secondly ', and ' Thirdly ' of s.l5(1)(a), 'First ', 'Secondly ' and 'Thirdly ', of s.15(1)(b), Clauses 'First ', 'Secondly ' and 'thirdly ' of s.15(1)(c) and the whole of section 15(2) are, therefore, declared ultravires the Constitution. 420 We are told that in some cases suits are pending in various courts and, where decrees have been passed, appeals are pending in appellate courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding inter partes and the declaration granted by us will be of no avail to the parties thereto. There will be no order regarding costs.

Until the academic session 1978 79, the Post Graduate Medical course in the State of Orissa was envisaged as a course of three years duration which period included an appointment for one year on the Resident House Staff. Admission to the three year course was made through an Entrance Examination, and after completing the Resident House Staff appointment, there was no further examination for admission to the Post Graduate course. The scheme was changed with effect from the session 1978 79 and the Resident House Staff course was delinked from the Post Graduate course. Accordingly, separate competitive examinations were prescribed for recruitment to the Resident House Staff and the Post Graduate course. A candidate appearing in the entrance examination for Post Graduate course should have passed the final M.B.B.S. examination, satisfactorily completed the internship, acquired full registration and in addition should have completed the Resident House Staff term in a subject during one year. The petitioner/medical graduates from the State of Orissa filed writ petitions in Supreme Court challenging the new scheme, under which it became necessary for the candidates seeking provisional admission to a Post Graduate course to appear again at an examination for such admission after completing the Resident House Staff appointment. They contended that under the original scheme they were entitled to take the Entrance Examination for recruitment to the Resident House Staff at any recognised institution in the country, even though it lay outside the State of Orissa and on completing that course they were entitled without more to admission to a Post Graduate Medical course in a Medical College in Orissa. Some of the petitioners had already taken the examination for recruitment to the Resident House Staff in a Medical College in Orissa and successfully completed that course and they also objected to the requirement envisaged by the new scheme. Disposing of the Writ Petitions, the Court, 811 ^ HELD: 1. It is consistent with reason and justice that those petitioners before the Supreme Court who were either pursuant to the relief granted by the A High Court or in compliance with interim order made by the Supreme Court, granted admission to a Post Graduate Medical course and have since completed that course and after having appeared in the examination for the academic year 1981 82 been declared successful, should not be disturbed and should be allowed the benefit of the success at the examination. Therefore, these admissions are affirmed. [815 D E] 2. The provisional admission of some of the petitioners to a Post Graduate course by tho Medical Colleges in Orissa in compliance with the interim orders of this Court made on different dates, should be regarded as an admission of final validity entitling them to its consequential benefits, since they have completed the Post Graduate Course. [815 F G] 3. There are writ petitions in which this Court directed the provisional admission of the petitioners but they could not be admitted because of the non availablity of seats and in some of the writ petitions no order for provisional admission of the petitioners has been made by the Supreme Court. They are disposed of as follows: Since the scheme respecting admission to the Post Graduate Medical course has been modified again and the present position, enunciated in the prospectus for the year 1982 83 is that medical graduates who have appeared and been selected at the examination for recruitment to the Resident House Staff are entitled automatically, on successfully completing that term of appointment, to admission to the Post Graduate course, and no Entrance Examination specifically for such examination is now contemplated, this Court directs that those petitioners who have successfully completed the term of one year as Resident House Staff in the medical Colleges of Orissa will be entitled without having to appear at any further Entrance Examination to admission to the relevant Post Graduate course. However, those petitioners who have completed the term as Resident House Staff in approved Medical institutions in India other than the Medical Colleges in Orissa should be permitted to appear at the Entrance Examination prescribed for appointment to the Resident House Staff, and that if they are successful in the said Entrance Examination, they will be entitled to admission to the relevant Post Graduate course for the next following session without being obliged to work on the Resident House Staff in the Medical Colleges in Orissa. This arrangement entitling these petitioners to admission to a Post Graduate course without having to fill a Resident House Staff appointment will obtain only if they appear for the entrance examination for appointment as Resident House Staff in the same subject in which they claim to have already served as Resident House Staff earlier. If, however and it will be open to them to do so they appear at the entrance examination in a different subject, and are successful therein they shall be obliged to serve for the stipulated term in a Resident House Staff appointment in relation to that subject before being entitled, of the completion of that term, to admission in the corresponding Post Graduate course. [816A; 819 C E; 817 A D] 812

Appeal No. 107 of 1956. Appeal by special leave from the judgment and order dated January 21, 1954, of the Madras High Court in W. P. No. 498 of 1952. With Petition No. 130 of 1958. Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. M.R. M. Abdul Karim and K. R. Choudhri, for the appellant (in C. A. No. 107156) and Petitioner (In Petn. 130/58). K.N. Rajagopala Sastri and D. Gupta, for the respondents (in both the appeal and petition). September 21. The Judgment of the Court was delivered by AYYANGAR J. Muthappa Chettiar, the appellant in Civil Appeal 107 of 1956 was sought to be proceeded against for the recovery from him of Excess Profits Tax assessed in respect of the business of Muthappa & Co. of which he was a partner. He disputed the legality of the recovery proceedings and filed Writ Petition 498 of 1952 before the High Court of Madras for the issue of a writ of prohibition for directing the Income Tax Officer, E. P. T. Circle, Madras, not to take coercive steps against him for the recovery of the tax assessed. This petition was dismissed and Civil Appeal 107 of 1956 has been filed on special leave obtained from this Court. During the hearing by the High Court, of Writ Petition 498 of 1952, Muthappa Chettiar (referred to hereafter as the appellant) sought also to impugn the legality of the order of assessment to Excess lox 790 Profits Tax. The learned Judges held however that, such a contention was not germane to the writ of prohibition for which he had prayed, adding also that there were no merits in the grounds urged. To avoid any technical objection, the appellant has filed in this Court Petition 130 of 1958 under article 32 of the Constitution in which the prayer is for the grant of a writ of certiorari or other appropriate writ to quash the order of assessment to Excess Profits Tax, and the Appeal and the Petition being thus interrelated have been heard together. We shall first take up for consideration the matters urged in the Writ Petition, as logically having precedence over the challenge to the legality of the proceedings for the recovery of the tax. The facts necessary to appreciate the points urged are briefly these: The appellant and Thyagrajan Chettiar (impleaded as the second respondent in Civil Appeal 107 of 1956) were partners in a firm named Muthappa & Co. started in November, 1940, and the firm was the managing agent of a textile Mill called Saroja Mills Ltd., in the Coimbatore district. The assessment which is under challenge is for the Excess Profits Tax liability of this managing agency business and the relevant chargeable accounting periods are the calendar year 1942 and the broken period January 1, 1943, to March 4, 1943. The liability of the firm to Income Tax for the same periods was assessed by the Income Tax Officer by his orders dated March 15, 1948, by applying the provisions of section 23(5)(b) of the Income tax Act, 1922, arid the appellant paid, when demanded, his share of the tax and there is now no dispute about the propriety of that assessment. The income of the managing agency business was computed for Excess Profits Tax at the same figure as for assessment to Income Tax, and the assessment for the two chargeable accounting periods was completed by the Excess Profits Tax Officer by his order dated March 31, 1951, and it is the validity of this order of assessment that is challenged in Petition 130 of 1958. The first matter urged in support of the petition may be set out thus: Ail assessment to be valid must 791 be after notice to the assessee. In the present case, the assessment was admittedly completed by serving, the prescribed notices on Thyagrajan Chettiar alone, who according to the terms of the partnership between the parties was the managing partner. But it was urged that there had been a dissolution of the firm as and from March 4, 1943, that thereafter the partnership ceased to exist, and with it the mutual agency between the partners, with the result that Thyagrajan Chettiar could not represent the firm which had ceased to exist nor the appellant. On these premises it was submitted that the assessment of the business to Excess Profits Tax after notices only to Thyagrajan Chettiar could not bind the firm nor at any rate bind the appellant. In our opinion there are two answers to this submission, either of which would suffice to reject the appellant 's plea: (1) That on the facts of the present case the appellant is precluded from pleading that the firm had been dissolved at the date of the assessment in 1951 and from raising any objection to the representative character of Thyagrajan Chettiar, (2) That on a proper construction of the provisions of the Excess Profits Tax Act, 1940, even if the firm of Muthappa & Co. should be held to have been dissolved before 1951 when the order of assessment was passed, the assessment of the managing agency business to Excess Profits Tax was properly and legally effected by notice to Thyagrajan Chettiar. The facts to which we have made reference are these: Prior to the assessment year 1943 44, Thyagrajan Chettiar, as the managing partner of Muthappa & Co. was submitting returns for Income tax and was conducting the assessment proceedings on behalf of the firm. Thyagrajan Chettiar published in the newspaper " Hindu " a notice announcing the dissolution of the firm as and from March 4, 1943, and followed it up by informing the Income Tax Officer of this circumstance. Thereafter the Income Tax Officer wrote to the appellant enquiring whether the firm of Muthappa & Co. had been dissolved and if so from what date. By letter dated February 1, 1945, the appellant 792 replied " I wish to inform you that Messrs. Muthappa & Co. has been formed as per the deed of partnership dated November 4, 1940, and the rights of the partners are also retracted therein. But Mr. Thyagrajan Chettiar my partner has acted deliberately beyond the scope of the partnership deed in issuing a notice of dissolution of partnership on me on March 4, 1943, and a suit has been filed against him in the Coimbatore Sub Court and is pending. Pending disposal of the said suit regret I am unable to accept the alleged dissolution or to give the date of dissolution of partnership called for in your letter ". Taking the appellant at his word the income tax assessment was completed after notice to Thyagrajan Chettiar as the continuing managing partner. In line with the position taken up by him, disputing that the firm had been dissolved by the acts or conduct of Thyagrajan Chettiar, the appellant filed a suit in the Sub Court at Coimbatore contesting the validity of Thyagrajan Chettiar 's notice of dissolution dated March 4, 1943, praying for a declaration that the purported dissolution of the firm by Thyagrajan Chettiar was invalid and inoperative, himself seeking a decree for dissolution from a date to be specified by the Court and for rendition of accounts on foot of a subsisting partnership till the date so fixed. The Subordinate Judge upheld the validity of the dissolution by Thyagrajan Chettiar in 1943. From this judgment rendered in 1948 the appellant preferred an appeal to the High Court. This appeal was heard in 1953 when the High Court allowed the appeal and fixed the date of dissolution as on March 10, 1949. It is stated that a further appeal from this judgment of the High Court is pending in this Court, so that even now the precise date on which the firm should be held to be dissolved is a matter of uncertainty. From the above it would be seen that it has always been the case of the appellant that the firm had not been dissolved in 1943. At the date of the proceedings for the assessment to Excess Profits Tax in 1951, with which Petition 130 of 1958 is concerned, the position therefore was as follows: The assertion by the appellant that the partnership was undissolved 793 and continued its existence, contained in his letter to the Income Tax Officer in February, 1945, still held good and was backed up by the proceedings he took in the Civil Courts to maintain that stand. No doubt, his claim had not been upheld by the Subordinate Judge, but by the appeal that he filed, he rendered the matter res sub judice and till the decision of the High Court in 1953, the appellant could not obviously suggest any particular date as the date of the dissolution. The submission of learned Counsel which proceeds on the assumption that there was a dissolution of the firm on March 4, 1943 ; or on March 10, 1949 which was the date fixed by the High Court by its judgment of 1953, has to be rejected as wholly inconsistent with the contentions urged by the appellant in the Civil suit and the appeal therefrom. In the circumstances, the Income Tax Officer could not be blamed for treating the firm as in existence and similarly the Excess Profits Tax Officer also. It was common ground that at the date the Excess Profits Tax Officer started proceedings for assessment, the appellant had filed an appeal against the judgment of the Subordinate Judge in O. section 50 of 1946 and the same was pending in the High Court and that it was only in 1953 that the appeal was disposed of. The contention now urged before us was, that as the High Court had held that the firm should be treated as having been dissolved as and from March 10, 1949, the issue of any notice to Thyagrajan Chettiar as the managing partner of the firm was invalid and the assessment proceedings completed on that basis would also be illegal. If the contention of the appellant were to prevail it would mean that the validity or otherwise of the assessment order would be retrospectively determined by the result of the appellant 's appeal which was pending before the High Court, so that if the High Court had held that the firm should be treated as dissolved only on the date of its judgment in 1953, the assessment would be valid but that if the high Court bad fixed the date of dissolution on some date earlier than March 31, 1951, the assessment would be deemed invalid. This argument has only to be stated to be rejected. When this 794 aspect of the matter was put to learned Counsel for the appellant, he fairly conceded that he could not on the facts of this case maintain the position that the order of assessment to Excess Profits Tax was vitiated because of the alleged disruption of the firm of Muthappa & Co. before the date of that order. The other answer to the submission is that even assuming that the firm of Muthappa & Co. had been in fact dissolved on some date anterior to the assessment of the managing agency business to Excess Profits Tax, that would not affect the validity of an assessment order passed after notice to the person in management of the business during the chargeable accounting periods, since, it was not the firm but " the business " that was the unit of assessment. In this connection learned Counsel for the appellant drew our attention to a decision of the Madras High Court in A. O. Pandu Rao vs Collector of Madras (1), and stated that it was against him and directly covered the point and if correct would leave no scope for any further argument. In that case a firm consisting of three partners carried on business under the name of P. Nagoji Rao & Son, with one of them Gannu Rao as managing partner. The chargeable accounting periods concerned were the years from April 1, 1944 to March 31, 1946. There were quarrels among the partners which led to the filing of a suit on February 26, 1947, for dissolution and accounts by two of the partners against the managing partner. The suit was decreed on November 14, 1947, declaring the firm dissolved as and from the institution of the suit February 26, 1947. The assessment of the business to Excess Profits Tax was completed by notices issued subsequent to that date to Gannu Rao as managing partner and the order of assessment was passed on December 31, 1949, and a notice of demand under section 29 of the Income Tax Act was served on him. No demand notices were served on the other two partners, but proceedings for the recovery of the tax were taken against them on the strength of the notices served on Gannu Rao. These two partners moved the High Court (1) (1954) 26 I.T. 99. 795 under article 226 of the Constitution for the issue of writs of Certiorari to quash the orders of assessment to Excess Profits Tax and the proceedings for recovery of the tax due thereunder. The order of assessment was impugned on the around that by virtue of the decree in the suit, there had been a dissolution of the firm and that Gannu Rao having ceased to have authority to represent the firm or the other partners, the assessment could have been legally completed only by notices under section 13 of the Excess Profits Tax Act being served individually on the other partners, and that the tax could be recovered only after notices to each of them under section 29 of the Income Tax Act. The learned Judges repelled these objections by reference to the provisions of sections 8 and 13 of the Excess Profits Tax Act under which it is the " business " producing the income which is the unit of assessment for Excess Profits Tax as contrasted with the provisions of the Indian Income tax Act under which the unit of assessment is either the individual, Hindu undivided family, firm, company or association of persons, carrying on the income earning activity (vide section 3 of the Income Tax Act which has not been made applicable to the Excess Profits Tax Act under section 21 of the latter Act). Under the provisions of the Excess Profits Tax Act, where a partnership carrying on a business becomes disrupted and the Excess Profits earned by the business before its dissolution have to be assessed the assessment has to be made under section 44 of the Income tax Act as modified by the Central Board of Revenue under the power vested in that behalf by section 21 of the Act and as so modified section 44 runs: " Where any business carried on by a firm or association of persons has been discontinued, every person who was at the time of such discontinuance a partner of such firm or a member of such association shall, in respect of the profits of the firm or association, be jointly and severally liable to assessment under section 14 of the Excess Profits Tax Act, 1940, and for the amount of tax payable, and all the provisions of the said Act shall, so far as may be, apply to any such assessment. " 796 The effect of this and other cognate provisions was thus explained by the learned Judges of the Madras High Court : "The result of section 44 as amended by the Central Board of Revenue is to attract the procedure applicable to an undissolved firm to a dissolved firm, and, therefore, if two or three persons carry on business as a firm, the assessment could be made on the partnership in the partnership name and the persons, who carried on the business during the chargeable accounting period will be liable to pay the tax as provided by sub section (2) of section 14, read with section 44, Income tax Act, as modified by the Central Board of Revenue. As section 63, Income tax Act, is also made applicable to proceedings under the Excess Profits Tax Act, if, during the chargeable accounting period, the firm carried on business as an undissolved firm and even if it became subsequently dissolved, by virtue of the provisions of section 44, the assessment could be made as if it were an undissolved firm. Under the provisions of section 63, Income tax Act, notice under section 13 may be issued to and served on a partner of a firm. Section 63(2) says that " Any such notice or requisition may, in the case of a firm or a Hindu undivided family, be addressed to any member of the firm or to the manager or any adult male member of the family and in the case if any other association of persons be addressed to the principal officer thereof" So far as the assessment in the present case is concerned, even assuming that by the date notice under section 13 was issued, the firm became dissolved, the machinery provided under the Act for the service of notice under section 63 can be availed of by serving notice on the partner. Notice, therefore, to a partner is treated as notice to all. " As observed by Chakravartti, C. J., in Bose vs Manindra Lal Goswami (1): " It will thus be seen that in the case of excess profits tax, there is no difference in the method of assessment prescribed for the assessment of the profits of a running business and that prescribed for (1) , 447. 797 the assessment of the past profits of a business carried on by a firm, since dissolved. In the case of a running business too, the assessment is to be made on the persons, carrying on the business, jointly. In the case of the business of a firm which has been dissolved, it is to be made on the partners jointly and severally; and since section 44 of the Act is made applicable to the assessment of pre dissolution profits of the business of a dissolved firm, such assessment can obviously be made in the partnership name. It was obviously in view of these provisions that the learned Judge in the Madras case stated that even assuming that the firm had been dissolved by the date of the issue of the notice under section 13, still, the machinery provided for by sections 13 and 14 of the Act could be availed of and the partners would continue to be jointly and severally liable to assessment under section 14 of the Act and for the amount of tax payable after determination. " In our opinion, the passages extracted correctly express the legal position resulting from the relevant provisions of the Excess Profits Tax Act, 1940. We, therefore, hold that the notice served on Thyagrajan Chettiar was valid and was binding on the appellant and that there is no basis for challenging the legality of the assessment to Excess Profits Tax. Before leaving the question of the validity of this order of assessment dated March 31, 1951, a minor point was made to which it is necessary to advert. The business income of the managing agency of Muthappa & Co. was computed at Rs. 1,02,219 for the 1st chargeable accounting period, viz., the calender year 1942, and at Rs. 6,387 for the broken period January 1, 1943, to March 4, 1943. These figurers which were the same as those in the assessment for income tax were based on the remuneration to which the firm became entitled on its managing agency agreement, with the Saroja Mills Ltd., and with which amount the latter debited itself in its accounts. The company however did not disburse this remuneration in cash, but this would make no difference to the tax liability of the firm, since the firm 's accounts were 102 798 made on the mercantile basis. The Mills raised a dispute that the managing agents had not fulfilled certain of the obligations undertaken by them in regard to the extension of the mills by increasing the spindle age, by reason of which default they claimed to have suffered a loss of income and for. that reason carried the amount of their cross claim for damages to a suspense account, instead of crediting the entire amount of managing agency remuneration to the firm. The sum of which immediate payment was thus withheld was Rs. 89,137. At the time of the Income Tax assessment for the corresponding period, Thyagrajan Chettiar who as the managing partner of the firm participated in these proceedings, had urged the contention that as the Mills had withheld remuneration to the extent of Rs. 89 thousand odd and had not credited that amount to the managing agents, the sum could not be treated as the income of the firm for the assessment year. This objection was overruled on the ground that the Mills had never disputed that the entire amount of Rs. one lakh odd was due by them to the firm and in fact had claimed to deduct that entire sum as part of their business expenditure. The sum of Rs. one lakh odd was due by them to the firm and in fact had claimed to deduct that entire sum as part of their business expenditure. The sum of Rs. one lakh odd was therefore held to have accrued to the firm as its income and that this remained unaffected by the existence of the cross claim. The contention which was repelled by the Income Tax Officer was addressed to us as a ground for disputing the inclusion of the Rs. 89 thousand odd as the income of the firm in its Excess Profits Tax assessment. We see no substance in the point urged. Learned Counsel referred us to the decision of this Court in Commissioner of Income tax, Madras vs K. R. M. T. T. Thiagaraja Chetty & Co. (1) and to the observations at p. 261. We consider that the decision far from supporting the appellant is really against him. There are therefore no legal grounds for impugning (1) ; 799 the validity of the order of assessment to Excess Pro. fits Tax dated March 15, 195 1, and we consider that. the same is binding on the business and on the owners of that business including the appellant. As a result, Writ Petition 130 of 1958 fails and has to be dismiss. The point that next calls for consideration is the subject matter of Civil Appeal 107 of 1956 and this is whether the Excess Profits Tax assessed could be validly recovered from the appellant by resort to the machinery for collection provided by section 46 of the Income Tax Act. The argument of learned Counsel for the appellant in regard to this point ",as on the following lines: Sections 45 to 47 of the Income Tax Act, 1922, which provide for the recovery of Income tax by coercive process, no doubt apply for the recovery of Excess Profits Tax by virtue of their inclusion in section 21 of the Excess Profits Tax Act as provisions applicable to the latter Act, and by reason of the assessment on the firm of Muthappa & Co. the appellant became liable to pay the Excess Profits Tax assessed. It wag nevertheless urged that the coercive process for reco very of his tax liability under section 46(2) of the Income Tax Act could not be invoked against the appellant, the submission being rested on two propositions : (1) That the appellant was not an " assessee " but only a " person liable to pay the tax " within section 29 of the Income Tax Act which runs: "When any (tax, penalty or interest) is due in consequence of any order passed under or in pursuance of this Act, the Income tax Officer shall serve upon the assessee or other person liable to pay such (tax, penalty or interest) a notice of demand in the prescribed form specifying the sum so payable. " It was further urged that as in the present case there had been no notice of demand under section 29 of the Income Tax Act specifically addressed to and served on theappellant, he could not become an " assessee in default neither would the tax payable by him become an arrear " as to permit the invocation of the coercive process under section 46(2) for recovery. (2) 800 That the procedure for recovery enacted in sections 45 to 47 including section 46(2) were confined in their application to " assessees " and " assessees in default " and did not apply to the class of " other persons liable to pay the tax " as against whom the filing of a suit for the recovery of the tax and the execution of decrees in such Suits was the only machinery through which the tax liability of this class could be enforced. For the purposes of this case we do not consider it necessary to deal with the larger second question as to whether the expression " assessee " and " assessee in default " in sections 45 & 46 of the Income Tax Act, 1922, should be held to be confined to " assessees " as distinguished from " other persons liable to pay such tax " as these expressions occur in section 29 of the Act, or whether the expression " assessee " when it occurs in sections 45 to 47 should be understood as defined in section 2(2) as including " every person by whom income tax. . . is payable ", since we are clearly of the Opinion that the appellant was an " assessee ". Section 21 of the Excess Profits Tax Act carries a proviso which reads : "Provided that references in the said provisions to the assessee shall be construed references to a person to whose business this Act applies ". In view of this provision the appellant as the partner of the " business " to which " this Act applies " would be " an assessee "and not merely an" other person liable to pay the tax". He would also be an "assessee in default" and the amount due from him would be an arrear since the notice of demand under section 29 of the Income Tax Act was served on the managing partner Thyagrajan Chettiar, and such service would be tantamount to a notice served on the appellant himself by reason of section 63 of the Income Tax Act. Indeed the entire basis on which the assessment proceedings completed after notice to Thyagrajan Chettiar as the managing partner of Muthappa & Co. have been held by us to be binding on the appellant would preclude any argument of the type advanced to challenge the binding character of the notices served. The appellant was clearly an " assessee in default " within 801 s.46(1) of the Income tax Act and the amount of tax and penalty due from him would be " an arrear within section 46(2). We therefore hold that the proceedings for the recovery of the Excess Profits Tax could properly be taken and that the order of the High Court dismissing the appellant 's petition for the issue of a writ of prohibition was correct. The appeal fails and is dismissed with costs. The petition is also dismissed but as these two have been heard together there will be no order as to costs in the petition. Both the Appeal and the Petition dismissed.

The petitioners who were displaced persons from West Pakistan put forward certain claims in regard to village houses which they had left there, but which were rejected by the Rehabilitation authorities. The claims were for amounts above Rs. 20,000 in the case of some of the petitioners and above Rs. 10,000 in the case of the others. By r. 5 framed under the , claims could be verified provided, inter alia, that where a claimant had been allotted any agricultural land in India and such land so allotted exceeded four acres, the value of the building in respect of which the claim was made shall not be less than Rs. 20,000 and where it did not exceed four acres the claim made was not less than Rs. 10,000 Rule 65 of the , provided that any person to whom more than four acres of agricultural land had been allotted shall not be entitled to receive compensation separately in respect of his verified claim for any rural building the assessed value of which was less than Rs. 20,000, and any person allotted four acres or less was not entitled to receive compensation where the value was less than Rs. 10,000 The petitioners challenged the validity of the aforesaid rules as being discriminatory and thereby contravening article 14 of the Constitution of India on the grounds that the object of the various Acts and the rules made thereunder was to rehabilitate displaced persons but by the rules, classifications had been made with reference to houses in rural areas which were discriminatory as neither the classes were based on intelligible differentia nor was there a rational nexus between that differentia and the object sought to be achieved. It was found that the impugned rules were made in pursuance of an Inter Dominion Agreement between the two Governments with regard to evaluation of evacuee property, which had received recognition in article 31(5) (b)(iii) of the Constitution. Held, that the impugned rules afforded a reasonable justifi cation for the classification and did not contravene article 14 of the Constitution.

vil Appeal No. 1306 (N) of 1973. From the Judgment and Order dated 25.10.1971 of the Gujarat High Court in F.A. No. 320 of 1967. G. Ramaswamy, Additional Solicitor General, H.K. Puri and S.C. Dhanda for the Appellant. M.V. Goswami for the Respondents. The Judgment of the Court was delivered by 756 THAKKAR, J. While in some States1 a widow of a victim of a motor vehicle accident can recover the amount of compensa tion awarded to her from the Insurance Company, in a pre cisely similar fact situation she would be unable to do so, in other States2, conflicting views having been taken by the respective High Courts. The unaesthetic wrinkles from the face of law require to be removed by settling the law so that the same law does not operate on citizens differently depending on the situs of the accident. The question is whether the insurer is entitled to claim immunity from a decree obtained by the dependents of the victim of a fatal accident on the ground that the insurance policy provided "a condition excluding driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification," and that such exclusion was permissible in the context of Section 96(2)(b)(ii)3 for claiming immunity against the obligation to satisfy the judgments against the insured in respect of third party risks. The facts are not in dispute. The Claims Tribunal as also the High Court have concurred with the findings which are recorded in the following passage: "The accident in question took place on Novem ber 14, 1964. The truck had come from Barejadi and had been unloaded at Baroda. The driver had gone for bringing snacks from the opposite shop leaving the engine running. The ignition key was in the ignition lock and not in the cabin in the truck as alleged by the driver. The driver had handed over control of the truck to the cleaner. On these facts the driver having been grossly negligent in leav ing 1. Andhra Pradesh, Gujarat. Assam, Madhya Pradesh, Orissa. Duty of insurers to satisfy judgments against per sons insured in respect of third party risks (1) If, after a certificate of insurance has been issued under sub section (4) of Section 95 in favour of the person by whom a policy has been effected, judgments in respect of any such liabili ty is required to be covered by a policy under clause (b) of sub section (1) of Section 95 (being, a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, nothwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person enti tled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor in respect of the liability . . . 757 such a truck with its running engine in the control of the cleaner, this being the immedi ate cause of the accident, the owner of the car viz. the insured was held vicariously liable along with the driver and the cleaner. " The view taken by the High Court has been summed up as under: "In the present case there is not an allega tion even that the insurer had at any time committed a breach of this condition. The insured has never permitted the cleaner to drive on the fatal occasion. The insured has permitted only the driver who is admittedly the licenced driver. It is the driver 's negli gence in leaving the vehicle with its engine running with the ignition key in the ignition lock that resulted in this accident. But for this gross negligence of the driver, the cleaner would not have been able to interfere with this vehicle. Once a finding is that the driver in the course of the employment or the master 's agent in the course of that agency, he negligently left the vehicle with the cleaner, the vicarious liability would immedi ately be fastened to the owner of the truck . . Even if vicarious liability arises because of this principle of social justice and not because the owner committed any breach of the policy condition. The owner in the present case never gave permission to this cleaner to drive and, therefore, the f.n. 3 contd. No sum shall be payable by an insurer under sub section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bring ing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such pro ceeding is so given shall be entitled to be made a part thereto and to defend the action on any of the following grounds, namely: (a). xxx (b) that there has been a breach of a specified condition of the policy, being one of the following conditions namely: (i) xxxx (a) to (d) x x x x (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or XXXX" 758 owner even though he had become liable by reason of his vicarious liability he could not be held guilty of the breach of the contractu al condition embodied in the policy of insur ance. Therefore, the insurer cannot plead any exemption on the ground that the owner had committed breach of the specified condition . " It has been contended on behalf of the Insurance Company that since admittedly there was an exclusion clause, the Insurance Company would not be liable in case at the point of time when the accident occurred the person who had been driving the vehicle was not a duly licensed person to drive the vehicle. It was immaterial that the insured had engaged a licensed driver and had entrusted the vehicle for being driven to the licensed driver. Once it was established that the accident occurred when an unlicensed person was at the wheels the Insurance Company would be exonerated from the liability. The validity of this argument advanced in order to assail the view taken by the High Court has to be tested in the light of the provisions contained in Sections 96(1) and 96(2)(b)(ii) of the (Act). But before doing so a brief survey of the decisions of the High Courts may be usefully made. Reliance is placed on behalf of the appellant on Kripa Natha Chakravanhy and others vs Rup Chand Lunawar, A.I.R. 1955 Assam p. 157. The view has been taken therein .that while the master is .undoubtedly liable for the wrongful conduct or negli gence of his servant where the act or conduct or negligence occurs in the course of the master 's employment or in fur therance of his interest notwithstanding the fact that the servant may have been prohibited from doing such an act. The High Court has however proceeded to absolve the Insurance Company from the liability in the light of Section 96(2) of the Act. The High Court in doing so has not examined or analyzed the provisions of Section 96(2) and has taken for granted that once it is established that the vehicle was being driven by an unlicensed person the Insurance Company stood exonerated. The decision is therefore of little sig nificance for testing the validity or otherwise of the view taken in the judgment under appeal. The appellant has also relied on Shankar Rao vs M/s Babulal Fouzdar and another, A.I.R. 1980 (Madhya Pradesh) p. 154. wherein the High Court has exonerated the Insurance Company on the following reasoning: "According to one of the terms of the policy of insurance 759 the insurer 's liability is subject to the condition that person driving the vehicle holds a licence to drive the vehicle or has held and is not disqualified from holding or obtaining such a licence and provided he is in the employment of insured and is driving on his order or with his permission. Unless the person driving the vehicle falls in that category, the insurer is not liable under the policy and is, therefore, exempted from indem nifying the insured. In the present case, apart from the question whether Hari Prasad held a driving licence or not, he was neither in the employment of the insured nor was he driving the bus at the time of the accident on the order or with the permission of the in sured. The insurer, therefore, is exempt from any liability under the terms of the policy and there is no infirmity even in this conclu sion reached by the Tribunal. " It has to be noticed that the conclusion of the High Court is backed only by an assertion and not by reasoning. It is therefore of little assistance in resolving the issue. So also the appellant has placed reliance on Orissa State Commercial Transport Corporation, Cuttack vs Dhumali Bewa & Ors. , A.I.R. 1982 (Orissa) 70 wherein the High Court came to the conclusion that the insurer was not li able. The entire reasoning is contained in the following passage which does not threw any light in regard to the basis of the reasoning or the interpretation of Section 96(2)(b)(ii): "The insurer who is opp. party no.2 in the common written statement denied the averments made in the petitions. It contended that it is not liable to compensate the appellant as the vehicle was driven by section Appa Rao who had no driving licence. Further the accident took place near Jetty No. 1 which is not a public place. For the aforesaid reasons, it is con tended that opp. party No. 2 is not liable to indemnify opp. party No. 1. " On behalf of the respondents support is sought from Kilari Mammi and others vs Barium Chemicals Ltd. & Ors., A.I.R. 1979 (Andhra Pradesh) 75 decided by the Andhra Pra desh High Court which has taken the same view as has been taken by the Gujarat High Court in the judgment under ap peal. Says the High Court: "If the first respondent had authorised only a licensed 760 driver to drive the vehicle, then the defence under section 96(2) could be rightly invoked by the 4th respondent. But this is a case where due to the negligence of the authorised driver, the third respondent, a third person, drove the vehicle and, therefore, I do not think the decision relied upon by the learned counsel is of any reliance to the facts of this case. " This decision is also exposed to the same criticism. It is buttressed by 'ipse dixit ' rather than rationation. The respondents have also placed reliance on Dwarka Prasad Jhunjhunwala and another vs Sushila Devi & Ors., A.I.R. 1983 Patna 246. It is no doubt true that the High Court has upheld the claim of the insured to be reimbursed by the Insurance Company but as is evident from paragraph 9 of the judgment, which is reproduced below things have been taken for granted: "From the above discussions it is clear and was not disputed that the liability of appel lant No. 1 for the negligent act of his driver is there. If appellant No. 1 being the owner of the car is liable, then I do not see why if the insurance company cannot be fastened with the liability. The appellant had taken an insurance policy to cover the risk against third party. Clause (b) of Section 95(1) ensures the person against the liability incurred by him in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle in public place. In view of this cover the appel lant No. 1 appears to me to be certainly entitled to shift the burden of the compensa tion awarded against him on the Insurance company which, in this case the car being a private one, is unlimited. I would, therefore, accept the argument of Mr. S.C. Ghose that on the facts and in the circumstances discussed above the liability of appellant No. 1 should be shifted from him to the National Insurance Co. Ltd., respondent No. 7. " The question therefore deserves to be examined afresh on its own merits on principle. Now, the proposition is incon trovertible that so far as the owner of the vehicle is concerned, his vicarious liability for damages arising out of the accident cannot be disputed having regard to the general principles of law as also having regard to the violation of the obligation imposed by Section 84 of the Act which provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, 761 unless there is in the deiver 's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. However, in the present case the appellant contends that the exclusion clause is strictly in accordance with the statutorily per missible exclusion embodied in Section 96(2)(b)(ii) and that under the circumstances the appellant Insurance Company is not under a legal obligation to satisfy the judgment pro cured by the respondents. The defence built on the exclusion clause cannot succeed for three reasons, viz: 1. On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour, and fulfil the promise and he himself is not guilty of a deliberate breach. Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver. The exclusion clause has to be 'read down ' in order that it is not at war with the 'main purpose ' of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does every thing in his power to keep the promise. In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting Section 94. Surely the 762 obligation has not been imposed in order to promote the business of the insurers engaged in the business of automo bile insurance. The provision has been inserted in order to protect the members of the Community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compen sation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependents of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the Courts would be recoverable from the persons held liable for the consequences of the accident. A Court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recov ered, from the person held liable who may not have the resources. The exercise undertaken by the law Courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce re sources of the Community would make a mockery of the injured victim, or the dependents of the deceased victim of the accident, who themselves are obliged to incur not inconsid erable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle with out the requisite third party insurance being in force is a penal offence.1 The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the con tract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the Insurance Compa ny to satisfy the judgment obtained against the persons insured against third party risks. (vide Section 96). In other words, the legislature has insisted and made it incum bent on the user of a motor vehicle to be armed with an insurance policy coveting third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured vic tims of automobile accidents or the dependents of the vic tims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has be 1. Section 94 of the . 763 come an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has therefore to be interpreted in the twilight of the aforesaid perspective. Section 96(2)(b)(ii) extends immunity to the Insurance Company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disquali fied for holding or obtaining a driving licence during the period of disqualification. The expression 'breach ' is of great significance. The dictionary meaning of 'breach ' is 'infringement or violation of a promise or obligation '.1 It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle. The very concept of infringement or violation of the promise that the expres sion 'breach ' carries within itself induces an inference that the violation or infringement on the part of the promi sor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty ' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mis chance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver with the express or implied mandate to drive himself it cannot be said that the insured is guilty of any breach. And it is only in case of a breach or a violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine. The discussion made in paragraph 239 of Breach of Contract by Carter (1984 Edition) under the head Proof of Breach, 1. See Collins English Dictionary. 764 gives an inkling of this dimension of the matter1 In the present case even if the promise were to be treated as an absolute promise the grounds for exculpation can be found from Section 84 of the Act which reads under: "84. Stationary vehicles No person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver 's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. " In view of this provision apart from the implied mandate to the licensed driver not to place an unlicensed person in charge of the vehicle. There is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver. What is prohibited by law must be treated as a mandate to the em ployee and should be considered sufficient in the eye of law for excusing non compliance with the conditions. It cannot therefore in any case be considered as a breach on the part of the insured. To construe the provision differently would be to re write the provision by engrafting a rider to the effect that in the event of the motor vehicle happening to be driven by an unlicensed person regardless of the circum stances in which such a contingency occurs, the insured will not be liable under the contract of insurance. It needs to be emphasised that it is not the contract of insurance which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted. These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non benevolent eye and with a mind not tuned to the purpose and 1. "Exculpation of a promisor. Given a presumption of abso luteness of obligation, a promisor who is alleged to have failed to perform must either prove performance or establish some positive excuse for any failure on his part. In other words he must find exculpation from what is presumed to be a breach of contract, either in the contract itself or in some external rule of law. These are five grounds for exculpa tion: construction of the contract; the doctrine of frustra tion; the existence of an implied term; the presence of an exclusion clause; and the application of a statutory rule or provision. These will be considered later." 765 philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent. In fact it appears that the former view is more plausible apart from the fact that it is more de sirable. When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equal ly plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to, the doctrine of 'reading down ' the exclusion clause in the light of the 'main purpose ' of the provision so that the 'exclusion clause ' does not cross swords with the 'main purpose ' high lighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe success fully at the main purpose. This theory which needs no sup port is supported by Carter 's "Breach of Contract" Vide paragraph 251. To quote: "Notwithstanding the general ability of con tracting parties to agree to exclusion clause which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisor 's contractual obligations. For example, in Glynn vs Margetson & Co., at 357 Lord Halsbury L.C. stated: "It seems to me that in construing this docu ment, which is a contract of carriage between the parties, one must be in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instru ment, and seeing what one must regard . . as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. " Although this rule played a role in the devel opment of the doctrine of fundamental breach, the continued validity of the rule was ac knowledged when the doctrine was rejected by the House. of Lords in Suissee Atlantigue Societed ' 766 Armement Maritime S.A.v. N.V. Rotterdamsche Kolen Centrale, at 393,412 413,427 428, 430. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract. " _ (Exphasis added). In our opinion, therefore, the High Courts of Gujarat and Andhra Pradesh are right and the High Courts of Orissa, Patna and Madhya Pradesh are in error. The exclusion clause does not exonerate the Insurer. The appeal accordingly fails and is dismissed with costs. A.P.J. Appeal dismissed.

The driver of a truck handed over the control of his vehicle to the cleaner while its engine was running and the ignition key was in the ignition lock. In the absence of the driver, who had gone for bringing snacks the cleaner inter fered with the vehicle. which resulted in an accident. The Tribunal as well as the High Court held that this being the immediate cause of the accident, the owner of the truck was vicariously liable. The High Court further held that since the owner never gave permission to his cleaner to drive, he could not he held guilty of the breach of the contractual condition embodied in the policy of insurance and, therefore, the insurer cannot plead any exception on the ground that the owner had committed breach of the speci fied condition. In the appeal to this Court, on behalf of the appellant Insurance Company it was contended: (i) that in view of the exclusion clause in the insurance policy the Insurance Company would not be liable if it was established that the accident occurred when an unlicenced person was at the wheels; (ii) that the exclusion clause is strictly in accordance with the statutorily permissible exclusion em bodied in section 96(2)(b)(ii) of the and (iii) that under the circumstances the appellant Company is not under a legal obligation to satisfy the judgments against the insured. Dismissing the Appeal, HELD: 1. The exclusion clause in the policy of insurance does not exonerate the Insurer. [766B] 753 Kilari Mammi and Others. vs Barium Chemicals Ltd. & Ors., A.I.R. 1979 (Andhra Pradesh) 75, approved. Kirpa Natha Chakravarthy and others vs Rup Chand Luna wat, A.I.R. 1955 Assam p. 157; Shankar Rao vs M/s Babulal Fouzdar and another, A.I.R. 1980 (Madhya Pradesh) 9. 154; Orissa State Commercial Transport Corporation, Cuttack vs Dhumali Bewa & Ors. , A.I.R. 1982 (Orissa) 70 and Dwarka Prasad Jhunjhunwala and another vs Sushila Devi & Ors., A.I.R. 1983 Patna 246, overruled. The vicarious liability of the owner of the vehicle for damages arising out of the accident cannot be disputed having regard to the general principles of law also having regard to the violation of the obligation imposed by section 84 of the Act which provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver 's seat a person duly licensed to drive the vehi cle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. [764B C] 3. In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. [761G] 4. Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Section 94 has been enacted to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependents of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the Courts would be recoverable from the persons held liable for the consequences of the accidents. The legislature has, therefore, made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence under section 94 of the Act. In 754 order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by section 96 and it will be the obligation of the Insurance Company to satisfy the judgment obtained against the persons insured against third party risks. [761G H; 762A B] 5. Section 96(2)(b)(ii) extends immunity to the Insur ance Company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. Therefore, the insur er will have to establish that the insured is quilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle. The very concept of infringement of violation of the promise that the expression 'breach ' carries within itself induces an inference that the violation or infringement on the part of the promiser must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty ' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mis chance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver, and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself it cannot be said that the insurer is guilty of any breach. And it is only in case of a breach or a violation of the promise on the part of the insured that the insured can hide under the umbrella of the exclusion clause. [763B G] 6. The question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine. In the present case even if the promise were to be treated as an absolute prom ise the grounds for exculpation can be found from section 84. In view of this provision apart from the implied mandate to the licensed driver not to place a non licensed person in charge of the 755 vehicle, there is also a statutory obligation on the said person not to leave the vehicle unattended and not to place it in charge of an unlicensed driver. What is prohibited by law must be treated as mandate to the employee and should be considered sufficient in the eye of law for excusing non compliance with the conditions. It cannot therefore in any case be considered as a breach on the part of the insured. [763G 764A; C El 7. The statutory provisions defining the conditions of exemption under section 96(2)(b)(ii) and not the contract of insurance must be interpreted in the spirit in which the same have been enacted, accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life aim. To do otherwise would amount to nullifying the benevolent provision. [764F G] 8. When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equal ly plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. [765B C] 9. The exclusion clause has to be 'read down ' in order that it is not at par with the 'main purpose ' of the provi sions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise. [765C D] Collins English Dictionary and Carter 's Breach of Con tract (1984 Edn.) Paras 239 and 251, relied upon.

vil Appeal Nos. 18083 of 1985. From the Judgment and Order dated 12.9.1983 of the Rajasthan High Court in D.B. (Civil) Spl. Appeal Nos. 35 of 1982, 76, 268 and 270 of 1983. S.K. Bagga for the Appellants. B.D. Sharma for the Respondents. The Order of the Court was delivered by 247 VENKATARAMIAH, CJ. In these appeals the appellants have questioned the validity of Section 15 (as amended) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. It is not disputed that this Act was enacted by the Rajasthan Legislature for bringing about Agrarian Re forms in the State of Rajasthan. The validity of some of the provisions of the Act came up for consideration before this Court in Bansidhar vs State of Rajasthan, ; before a Constitution Bench of this Court and this Court made declaration that the Rajasthan Imposition of Ceiling Agricultural Holdings Act, 1973 was a legislation which was made for the purpose of bringing out Agrarian Reform. In view of the above finding, it is clear that the provisions including section 15 (as amended) contained therein are protected by Article 31(A)(1)(a) of the Constitution notwithstanding the fact that some of these provisions contravened Articles 14 and 19. The Grounds urged in respect of the appeal are that Section 15 (as amended) in question was violative of Article 14. Since the provisions of the Act as already stated are protected by Article 31(A)(1)(a), the attack does not sur vive. The High Court was therefore right in upholding the validity of Section 15 of the Act. Therefore, there is no ground to interfere with the Judgment of the High Court. These appeals fail and are dismissed. Interim orders passed if any, in these cases stand vacated. T.N.A. Appeals dis missed.

By a notification issued under Section 4 of the Land Acquisition Act and published in the Government Gazette on 26.10.1967, the State Government declared its intention to acquire the land of the Respondent on 23.2.1968. A notifica tion under section 6 of the Act was published in the Gazette and on 5.3.1969. The Land Acquisition Officer declared award, determining compensation at the rate of 4 paise per square meter with solatium at 15 per cent. At the instance of the respondent claimant, a reference under section 18 of the Act was made to the Distt. judge on May 28, 1985. The Civil Court awarded compensation at Rs.3 per square meter and also awarded solatium at 15 per cent and interest at 6 per cent from the date of taking possession of the land by the State till payment of compensation. Being dissatisfied, the Respondent preferred an appeal to the High Court seeking enhancement both of compensation and solatium at the rate of 30 per cent. The High Court allowed the appeal, and granted three reliefs viz; (1) Additional amount at the rate of 12 per cent of the market value from the date of the notification under section 4 till the date of taking over possession; (2) interest at the rate of 9 percent for the first year from the date of taking possession and 15 per cent for the subse quent. years and (3) Solatium at 30 per cent on the market value. The appellant has thus filed the instant appeal after obtaining Special Leave. There is no grievance as regards the interest awarded. The challenge relates to the grant of enhanced solatium and the additional amount of compensation. Appellants ' conten tion is that sections 30(2) and 23(2) are not at all at tracted and the claim of the Respondent on the said two counts is not sustainable. 337 Partly allowing the appeal, this Court, HELD: Section 30(2) provides that the amended provisions of section 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court between 30th April 1982 and 24th Septem ber 1984, or to an appellate order therefrom passed by the High Court or Supreme Court. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium in as much as to awards made subsequent thereto. [343G H] If there is obvious anamoly in the application of law, the Court could shape the law to remove the anamoly. The Legislatures do not always deal with specific controversies which the Court decide. They incorporate general purpose behind the statutory words and it is for the Courts to decide specific cases. If a given case is well within the general purpose of the legislature but not within the liter al meaning of the statute, then the Court must strike the balance. So construing the Court held that benefit of higher solatium under section 23(2) should be available also to the present case. [344A C] In the instant case, on October 26, 1967, the notifica tion under section 4 was issued. On March 5, 1969, the Collector made the award. The result is that on April 30, 1982 there was no proceeding pending before the Collector. Therefore Section 30, sub section (1)(a) is not attracted to the case. Since the proceedings for acquisition commenced before 30th April 1982 Section 30, sub section (1)(b) is also not applicable to the case. The case is therefore really gone by both ways. The claimant is therefore not entitled to additional amount provided under Section 23(IA). [346E F] The purpose of incorporating Transitional Provisions in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take effect. The transitional provisions generally are intended to take care of the events during the period of transition. [343A] Kamalajammaniavaru vs Special Land Acquisition Offi cer, ; Bhag Singh vs Union Territory of Chandigarh, ; ; State of Punjab vs Mohinder Singh, ; Union of India vs Raghubir Singh, ; ; Towne vs Eisher, ; ,425, 1918; Lenigh Valley Coal Co. vs Yensavage, at 553; Mahadeolal Kanodia vs The Administrator General of West Bengal, ; , referred to. 338 Special Land Acauisition Officer, Dandeli vs Soma Gopal Gowda, AIR 1986 Karnataka 179 at 183 (FB); Jaiwant Laxman P. Sardesai etc. vs Government of Goa Daman & Diu & Anr. , AIR 1987 Bom. 214 at 217 (FB), overruled.

Civil Appeal No.1293 of 1969. Appeal from the Judgment and Order dated the 25th April, 1968 of the Madhya Pradesh High Court in Misc. Petition No. 404/64. S.T. Desai, J.B. Dadachanji K.J.John, Mrs. A.K. Varma for the Appellant. S.K. Gambhir for Respondents 1, 2 and 4. E.C.Agarwala and R.N. Sachthey for Respondent No. 3. 607 The Judgment of the Court was delivered by SHINGHAL J. This appeal by a certificate issued by the Madhya Pradesh High Court is directed against its judgment dated April 25, 1968. The appellant is a company which cultivates sugarcane and manufactures sugar in its factory in Sehore, Madhya Pradesh, by crushing the sugarcane cultivated by it and purchased from other cultivators. The State Legislature enacted the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958, hereinafter referred to as the State Act, which came into force on July 1, 1959. The State Government issued a notification on November 28, 1959, which appeared in the State Gazette dated December 4, 1959, under section 23 of the State Act imposing a cess of 12 paise per maund on the entry of sugarcane during a crushing season in the area comprised within "such of the factories in which the total quantity of cane entering for consumption, use or sale to the factory during such season exceeded 10 lakh maunds". The appellants challenged the validity of the imposition, and the High Court, on August 31, 1961, held that the notification was illegal as the imposition of the levy was with reference to particular premises. A similar view was taken in regard to the Acts in some other States and Parliament thereupon enacted the , hereinafter referred to as the Validation Act, which came into force on December 26, 1961. Section 3 of the Validation Act was taken to validate the imposition and collection of the cess under the State Act. The Manager of the appellant company received an intimation from the Additional Collector of Sehore dated April 13/15, 1964, stating that a sum of Rs. 5,49,262.92 was due from it on account of cess for the period "1959 60 to December 25, 1961" and asking for a bank guarantee for payment of the balance. The appellant wrote back saying that the amount of the cane cess worked out to Rs. 5,44,835.69 and not Rs. 5,49,262.92, and that as the collector had not assessed the amount of the cess in accordance with the rules, it was not payable by the appellant. As the Collector ignored the objection of the appellant, a demand notice was served upon it under section 146 of the Madhya Pradesh Land Revenue Code 1959, asking it to deposit Rs. 5,49,262.92 by August 1, 1964. Once again the appellant denied its liability, but as that was not acceptable to the Collector, the appellant filed a writ petition in the High Court stating that the Collector 's demand on account of the cess was illegal as the Validation Act was ultra vires the Constitution. The State of Madhya Pradesh traversed the claim in the writ petition. The High Court upheld the imposition of the cess but reduced 608 it to Rs. 5,44,835.69, by its impugned judgment dated May 25, 1968, and that is why the Company has come up in appeal to this Court. It has been argued by Mr. Desai on behalf of the appellant that section 23 of the State Act was not ultra vires the Constitution and there could be no question of validating a valid Act. According to him, the State Act fell within the scope of Entry 52 of List II of the Seventh Schedule of the Constitution and was valid, and Parliament could not legislate in respect of that occupied field and pass the Validation Act. These arguments have been based on the main contention that the expression "an area" in Sub section (1) of section 23 of the State Act really means "a local area" within the meaning of the aforesaid Entry 52 and no other area. Sub section (1) of section 23 of the State Act reads as follows, "23. Levy of cess on cane. (1) The State Government may, by notification, impose a cess not exceeding 25 paise a maund, on the entry of cane into an area, specified in such notification, for consumption, use or sale therein", There are two provisos to the sub section, but they are not relevant for the purpose of the controversy before us. It would appear from sub section that it permits the State Government to impose the cess on the entry of sugarcane into any area that may be specified in its notification, and there is nothing in it to confine the imposition to a "local area". As has been held by this Court in Diamond Sugar Mills Ltd and Another vs State of Uttar Pradesh and Another when a similar point arose for consideration with the U.P. Sugarcane Cess Act, 1956, the proper meaning to be attached to the words "local area" in Entry 52 List II of the Seventh Schedule of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a panchayat or the like". It has been clearly laid down that the premises of a factory are therefore not a "local area". This court accordingly struck down section 3 of the U.P. Act empowering the Governor to impose a cess on the entry of sugarcane into the premises of the factory on the ground that it did not fall within Entry 52 of the State List and there was no other Entry in the State List or the Concurrent List in which the Act could fall. It is therefore futile for the appellant to contend that section 23 of the State Act was not ultra vires the Constitution or that it can be upheld on such a construction of the words "an area" in section 23 as to restrict it to mean a "local area". 609 The decision in Diamond Sugar Mills case came up for consideration in this Court in Jaora Sugar Mills (P) Ltd. vs State of Madhya Pradesh and others with a specific reference to the provisions of the State Act, and it was once again held, following that decision, that the imposition of the cess was outside the legislative competence of the State. While examining that aspect of the controversy, this Court made it clear that what Parliament had done by enacting section 3 of the Validation Act was not to validate the invalid State Statutes, but to make a law concerning the cess covered by the said Statutes and to provide that the said law shall come into operation retrospectively. This Court clarified that by virtue of section 3 of the Validation Act, the command under which the cess would be deemed to have been recovered would be the command of the Parliament, because the relevant sections, notification, orders, and rules had been adopted by the Parliamentary Statute itself. It will thus appear that the argument of Mr. Desai to the contrary is of no consequence. The other argument of Mr. Desai that the writ of mandamus issued by the High Court on August 31, 1961, quashing the notification dated November 28, 1959, could not be made, and was not in fact made, ineffective by the Validation Act, is also of no consequence. Section 3 of the Validation Act makes this quite clear for it provides as follows. "3. Validation of imposition and collection of cesses under State Acts. Notwithstanding any judgment, decree or order of any Court, all cesses imposed, assessed or collected or purporting to have been imposed, assessed or collected under any State Act before the commencement of this Act shall be deemed to have been validly imposed, assessed or collected in accordance with law, as if the provisions of the State Acts and of all notifications, orders and rules issued or made thereunder, in so far as such provisions relate to the imposition, assessment, collection of such cess had been included in and formed part of this section and this section had been in force at all material times when such cess was imposed, assessed or collected; and accordingly 610 (a) no suit or other proceedings shall be maintained or continued in any Court for the refund of any cess paid under any State Act; (b) no Court shall enforce a decree or order directing the refund of any cess paid under any State Act; and (c) any cess imposed or assessed under any State Act before the commencement of this Act but not collected before such commencement may be recovered (after assessment of the cess where necessary) in the manner provided under that Act. (2) For the removal of doubts it is hereby declared that nothing in sub section (1) shall be construed as preventing any person (a) from questioning in accordance with the provisions of any State Act and rules made thereunder the assessment of any cess for any period; or (b) from claiming refund of any cess paid by him in excess of the amount due from him under any State Act and the rules made thereunder. " The section thus specifically validates the notification in question in regard, inter alia, to the imposition of the cess. The mandamus which was issued by the High Court on August 31, 1961, could not therefore avail the appellant thereafter. It has lastly been argued by Mr. Desai that when a law provides for the assessment of a cess or tax, it is necessary that it should be done by a specific order to that effect, and that an order of assessment cannot be presumed when it has not really been made. It has therefore been argued that as an order of assessment was not made in the present case, it could not be presumed or deemed to have been made simply because a demand was raised for the purpose of affecting the recovery of the cess from the apellant. The charging provision for the levy of the cess is to be found in section 23 of the State Act, to which we shall continue to refer for the sake of convenience even after the passing of the Validation Act. Sub section (2) of that section provides that the State Government shall make rules specifying the authority empowered to assess and collect the cess and the manner in which it shall be collected. The Madhya Pradesh Government accordingly made the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Rules, 1959, hereinafter referred to as the Rules which were also "validated" by Section 3 of the Validation Act. Rules 60 of the Rules provides that the col 611 lector shall be the authority empowered to "assess and collect" the cess. Rule 61 makes it obligatory for the occupier of a factory to maintain a correct account, day to day, in the prescribed form, of the cane entering the area specified in the notification under section 23. Rule 62 provides further that the occupier of the factory shall submit to the Collector, before the close of each month, a return in the prescribed form, showing the quantity of cane that has entered the specified area during the immediately preceding month. It further provides that within 15 days of the close of the crushing season, the occupier shall deposit the cess leviable on the total quantity of cane which has entered the specified area during the crushing season and shall send the treasury receipt showing the amount of cess deposited to the Collector. Then comes rule 63, which places the following responsibility on the Collector, "63. The Collector shall check the amount of cess deposited by the, occupier of the factory from the returns submitted under rule 62 and see if the full amount of cess due from the occupier has been credited into the Treasury. If the Collector finds that the full amount of cess due from the occupier of the factory has not been deposited he shall by a written notice call upon the occupier to deposit the amount due from him within the period specified in such a notice and the occupier shall deposit the amount within the period specified. " The responsibility of the Collector for purposes of assessing and collecting the tax under rule 60 of the Rules is therefore to check the amount of the cess deposited by the occupier of the factory. The check has to be made with the returns submitted by the occupier, and the Collector has to see that the full amount of the cess has been credited to the treasury. If he finds that this is not so, it is his duty to call upon the occupier, by a written notice, to deposit the amount due from him within the period specified in the notice. The State Act and the Rules do not therefore require that the Collector shall make a formal order of assessment, and then collect the cess. It has to be appreciated that the purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word, and in a taxing statute it often means the computation of the income of the assessee, the determination of the tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of estab 612 lishing that identity and naming the person from whom the tax has to be recovered. In the present case there is no controversy regarding the identity of the assessee, and the provision regarding the assessment of the cess in sub section (2) of section 23 of the State Act and rule 60 of the Rules related to the checking of the quantity of cane which had entered the specified area, and the amount of cess deposited in respect of it. It is for that purpose that form 4 provides the details to be submitted by the occupier of the factory, and a duty is cast on him to deposit the cess leviable on the total quantity of the cane, within 15 days of the close of the crushing season, and to send the receipt evidencing the deposit to the Collector. As has been pointed out by the High Court, the Appellant 's letter (Ext. R I) dated May 25, 1964, shows that it admitted that the amount of the cess payable by it worked out to a total of Rs. 5,44,835.69 That was therefore the admitted amount of the cess which had to be recovered. The Collector recorded an order (exhibit R 2) dated July 21, 1964, in which he clearly stated that he had gone through the case and that the Tehsildar should immediately recover the entire amount of the cess due from the appellant forthwith. He further directed that the "entire amount of the cane cess due from the B.S.I." should be recovered and monthly progress report sent to him. This shows that the Collector did apply his mind to the matter, and made an express order for the recovery of the total amount of the cess admitted by the appellant. It seems that the Naib Tehsildar increased the amount beyond what had been admitted by the appellant and directed by the Collector, but the High Court rightly confined the recovery to Rs. 5,44,835.69 which was admitted by the appellant to be due from it on account of cess for the two seasons. There is thus no force in the argument of Mr. Desai to the contrary. The appeal fails and is dismissed with costs. M.R. Appeal dismissed.

The appellant company cultivates sugarcane and manufactures sugar in its factory, by crushing the sugar cultivated by it and purchased from other cultivators. The State Government enacted the M.P. Sugarcane (R.S.P.) Act, 1958 which came into force on July 1, 1959. The State Government issued a notification under section 23 of the Act imposing a cess of 12 paise per maund on the entry of sugarcane during a crushing season in the area comprised within "such of the factories in which the total quantity of cane entering for consumption, use or sale to the factory during such season exceeded 10 lakh maunds. " The High Court, on a writ application by the appellants, declared the notification illegal as the imposition of the levy was with reference to particular premises. The Parliament thereupon enacted the . Section 3 of the Validation Act was taken to validate the imposition and collection of the cess under the State Act. In April, 1964, the appellant received an intimation from the Additional Collector stating that a sum of Rs. 5,49,262.92 was due from it as cess for the period 1959 60 to December 25, 1961, and asking for a bank guarantee for payment of the balance. The appellant replied that the amount of cess worked out only to Rs. 5,44,835.69 and the Collector had not assessed the cess in accordance with the rules. Its objection was ignored and a demand notice was served on it under s.146 of the M.P. Land Revenue Code, 1959, for Rs. 5,49,262.92. The appellant filed a writ petition challenging the constitutionality of the Validation Act under which the Collector had demanded the cess. The High Court upheld the imposition of cess but reduced it to Rs. 5,44,835.69. It was contended that section 23 of the State Act was not ultra vires the Constitution, as the expression "an area" in section 23(1) means "a local area" within the meaning of Entry 52 of List II, 7th Schedule of the Constitution, and the Parliament could not, therefore, enact an Act validating a valid Act. It was further contended that when a law provides for the assessment of a cess or tax, it is required to be done by a specific order to that effect, but it was not made in this case. Dismissing the appeal, the Court, 606 ^ HELD: 1. Section 23 of the State Act was ultra vires the Constitution, and cannot be upheld on such a construction of the words "an area" in section (1) as to restrict it to mean a "local area". The proper meaning to be attached to the words "local area" in Entry 52, List II of the Seventh Schedule of the Constitution; (when the area is a part of the State imposing the law) is an area administered by a local body like a Municipality, a district board, a local board, a union board, a panchayat or the like. The premises of a factory are therefore not a "local area" falling within Entry 52 of the State List, and there is no other Entry in the State List or the Concurrent List in which the Act could fall, [608 E H] Diamond Sugar Mills Ltd. and Anr. vs State of U.P. & Anr. ; and Jaora Sugar Mills (P) Ltd. vs State of M.P. and Ors. , ; followed. What the Parliament had done by enacting section 3 of the Validation Act, was not to validate the invalid State statute, but to make a law concerning the cess covered by the said statute and to provide that the said law shall come into operation retrospectively. By virtue of section 3, the command under which the cess would be deemed to have been recovered, would be the command of the Parliament, because the relevant sections, notifications, orders and rules had been adopted by the Parliamentary Statute itself.[609 B C] 3. The State Act and the Rules do not require that the Collector shall make a formal order of assessment, and then collect the cess. The purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word and in a taxing statute it often means the computation of the income of the assessee, the determination of tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of establishing that identity and naming the person from whom the tax is to be recovered. The responsibility of the Collector for purposes of assessing and collecting the tax under section 60 of the Rules, is to see that the full amount of the cess has been credited to the treasury by the occupier of the factory. If he finds that this is not so, it is his duty to call upon the occupier by a written notice to deposit the amount due from him within the period specified in the notice. [611E H,612A]

Appeal No. 1733 of 1966. Appeal by special leave from the judgment and decree dated March 30, 1966 of the Madhya Pradesh High Court, Indore Bench in Second Appeal No. 341 of 1964. M.C. Bhandare and P.C. Bhartari, for the appellant. S.K. Mehta, A.P. Tayal and K.L. Mehta, for the respondent 48 The Judgment of the Court was delivered by Ray, J. This is an appeal from the judgment dated 30th March, 1966 of the High Court of Madhya Pradesh (Indore Branch) allowing the appeal and setting aside the decree of the lower appellate court and restoring the decree of the trial court with costs. The plaintiff 's suit against the Indore Municipal Corporation was for a declaration that the dismissal of the plaintiff was illegal and that the plaintiff was still on the post of Removal Sub Inspector and a decree against the defendant for Rs. 7,488/ on account of salary at the rate of Rs. 104/ p.m. from 15th April, 1953 till the date of institution of the suit, viz., 15th April, 1959 and other reliefs. The trial court decreed the suit. The lower appellate court set aside the decree. The High Court restored the decree passed by the trial court. The case of the plaintiff Niyamatulla was that the plaintiff was suspended by the order of the Municipal Engineer dated 15th April, 1953. One Shri Ghatpande who acted in place of the Municipal Commissioner in the month of May 1953 directed the dismissal of the plaintiff. The plaintiff contended that the dismissal could have been only under the orders of the Municipal Commissioner. The plaintiff further contended that there was no opportunity given to the plaintiff against the proposed dismissal. The defence of the Municipal Corporation was that the plaintiff preferred a review petition to the Municipal Commissioner who rejected the same. The plaintiff thereafter preferred an appeal to the Appeal Committee of the Municipal Corporation which was dismissed. Thereafter, a revision petition against the order was heard by the Minister in charge of the Government of Madhya Bharat and the same was rejected in the month of September, 1955. It was, therefore, contended that the plaintiff had no right to file the suit. Another defence was that the suit was barred by limitation. Counsel for the appellant canvassed three grounds. First, that the order of dismissal was valid and Shri Ghatpande had jurisdiction to pass the order of dismissal. Secondly, the suit was barred by limitation. Thirdly, the provisions of section 135 of the Indore Municipality Act was a plea in bar of the suit. The authority of Shri Ghatpande to dismiss the plaintiff was based on the provisions contained in section 13 of the Indore Municipal Act, 1909. Section 13 of the Indore Municipal Act, inter alia, reads as follows: "(1) The Municipal Commissioner for the City of Indore shall, from time to time, be appointed by the Government. 49 (2) (a) Leave of absence may be granted to the Commissioner, from time to time, according to the Indore Civil Service Regulations. (b) During such absence of the Commissioner the Government may appoint any person to act as Commissioner. Every person so appointed shall exercise the powers and perform the duties conferred and imposed by the Act or by any other enactment at the time in force, on the person for whom he is appointed to act, and shall be subject to the same liabilities, restrictions and conditions to which the said person is liable and shall receive such monthly salary as may be determined by the Government. In order to rest the defence on section 13 of the Indore Act, it has to be first found out that there is an appointment by the Government of any person to act as Commissioner. The finding of fact by the High Court is that no order of the Government was produced to show that Shri Ghatpande was appointed to act in place of Shri Rao who was the then Municipal Commissioner. The further finding of the fact was that the order of dismissal was passed by Shri Ghatpande. The defence of limitation pleaded by the Indore Municipal Corporation was in general terms that this suit was barred by limitation. The plaintiff in the plaint alleged that the cause of action arose on 15th April, 1953 and on ist May, 1953 when the plaintiff was dismissed from service and on 11th January, 1954 when it was passed by the Appeal Committee of the Indore Municipality. At the trial the plaintiff contended that the suit was well constituted and was governed by Article 120 of the Limitation Act, 1908. At the time of the hearing of the appeal before the District Judge, Indore, the Municipal Corporation, Indore contended that under section 135(2) of the Indore Municipal Act, 1909 a suit in respect of any act done or purporting to be done under the Act by an officer or servant of the municipality or by any person acting under the order of the Government was to be filed within six months from the date of the actual of the cause of action. The District Judge accepted the plea. The alternative contention on behalf of the Municipal Corporation before the District Judge was that Article 115 of the Limitation Act, 1908 will apply if the special period of limitation prescribed by the Act did not apply. The District Judge did not accept that contention on the reasoning that the plaintiff was not under any contract of service and Article 115 applied to compensation for breach of 50 contract. The District Judge held that Article 14 of the Limitation Act, 1908 would apply when an order of an officer in his official capacity was set aside and no special period of limitation was prescribed. In the High Court the Municipal Corporation repeated the plea under section 135 of the Indore Municipal Act, 1909. The High Court, however, repelled that contention by holding that Shri Ghatpande was not the Commissioner when he passed the order, and, therefore, the order being without jurisdiction, the provisions contained in section 135(2) of the Indore Municipal Act were inapplicable and the plaintiff 's suit was governed by Article 120 of the Limitation Act, 1908. The provisions of the Code of Civil Procedure enjoin that if any special plea of limitation is a defence such a defence of limitation should be pleaded. In the present case, the Municipal Corporation did not plead section 135 of the Indore Municipal Act, 1909 as a defence. Such a plea was not taken in the pleadings or in the trial court and the District Judge should have not entertained such a plea. The provisions contained in section 135 of the Indore Municipal Act will be applicable to things done under the Act. It is manifest that in the present case the order of dismissal passed by Shri Ghatpande was beyond his jurisdiction and is therefore not an act done under the Act. Furthermore, section 8(1)(b) of the Indore Act says that the Council shall bear the name of the Municipal Council of the Indore City and be a body corporate and have perpetual succession and a common seal and by such name may sue and be sued. A distinction is to be noticed between suing the Municipal Council of the Indore City as contemplated in section 8(1)(b) of the Act and suits against the Commissioner or any officer or servant of the Municipality or any person acting under the direction of the Government or the Commissioner as contemplated in section 135 of the said Municipal Act. One of the purposes of section 135 of the Municipal Act is to, afford an opportunity to the persons mentioned in the section to make amends within the period of notice. The suit that was filed in the present case was not in respect of any act done or purported to be done under the Act. This Court in the case of Bharat Kala Bhandar Ltd. vs Municipal Committee, Dhamangaon(1) examined the provisions of section 48 of the Central Provinces and Berar Municipalities Act, 1922 which was to the effect that no suit shall be instituted against any Committee or any member, officer or servant thereof or any person acting under the direction of any such committee, member, officer or servant for anything done or purporting to be done under the Act, until the expiration of two months next after notice (1) ; 51 in writing stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims. Section 48 of the said Central Provinces and Berar Municipalities Act further provided that every such suit shall be dismissed unless it was instituted within six months from the date of the actual of the cause of action. The appellant in that case contended that it was a case of recovery of an illegal tax and therefore a claim for its refund fell outside the provisions of section 48 of the said Act. The respondent, on the other hand, contended there that the collection of tax was not without jurisdiction but only irregular and therefore the suit would be in respect of a matter purporting to be done under the Act. This Court held that where power existed to assess and recover a tax up to a particular limit the assessment or recovery of an amount in excess was wholly without jurisdiction. To such a case, the statute under which action was purported to be taken could afford no protection. On logic and principle the same reasoning applies to the provisions contained in section 135 of the Indore Municipal Act, 1909 with the result that the suit in the present case is not within the mischief of section 135 of the Indore Municipal Act. For these reasons, the appeal fails and is dismissed with costs. Appeal dismissed.

The appellants, motor transport operators, challenged the increase in surcharge of the fares and freights imposed by the Andhra Pradesh Motor Vehicles (Taxation of Passengers and Goods) Amendment and Validation Act, 1961. They urged: (i) the Act was neither regulatory nor compensatory in nature and, it fell directly within the mischief of article 301 of the Constitution; (ii) the imposts exceeded the limits of permissible reasonableness, were not in the public interest and, therefore, violated articles 304(b) and 19(1)(g); and (iii) the Act violated article 14 (a) inasmuch as it had not been made applicable to the Telegana area although it was applicable to the Andhra area and (b) the vehicles on inter State routes on permits granted by other States had not been subjected to tax. HELD: (i) It was not the contention of the State that the impugned Act imposed a tax by way 'of a regulatory or compensatory measure. Therefore, it had to be been whether the restrictions imposed were reasonable and in the public interest within the meaning of article 304(b); these questions were open to examination by the court notwithstanding the fact that the sanction of the President was obtained in compliance with the Article. [55 E F] Mathurai Pillay vs State of Madras, , Automobile Transport (Rajasthan) Ltd. vs State of Rajasthan vs State of Assam. ; and Atiabari Tea Co. Ltd. vs State of Assam, ; , referred to. (ii) There was no material which would justify the view that the tax which had been imposed exceeded the limit of permissible reasonableness or was not in the public interest. The argument that by raising the rate of tax the burden had been increased to such an extent that the business of the appellants had been virtually annihilated had no substance. The operators had been permitted to enhance the freights and if the freights could be enhanced, obviously, the burden would not fall on them. If the operators were not prepared to charge higher rates as a matter of policy or for the purpose of business competition that could not impinge on the reasonableness of the restrictions. This disposed of the challenge under article

Appeal No. 5617 of 1990. From the Judgment and Order dated 9.8.1990 of the Karna taka Administrative Tribunal, Bangalore in Application No. 3155 of 1989. P.P. Rao, S.R. Bhat, Alok Aggarwal and Ms. Mohini L. Bhat 1or the Appellant. 393 P. Chidambaram, M. Veerappa (N.P.) and K.H Nobin Singh for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Even the General Law later in time, prevails over the earlier Special Law if it clearly and directly supersedes the said Special Law ' is an unexcep tionable proposition of law. K. Jayachandra Reddy, J. has interpreted Rule 3(2) of General Rules consistently with Rules 1(3)(a), 3(1) and 4(2) of the same Rules. Giving harmonious construction to various provisions of the General Rules the learned Judge has held that the General Rules do not supersede the Special Rules. Yogeshwar Dayal, J. on the other hand has focused his attention on the language of Rule 3(2) of the General Rules and has concluded that there is clear indication in the said Rule to supersede the Special Rules. I have given my thoughtful consideration to the reason ing adopted by the learned Judges in their respective judg ments. Rule 1(3)(a) of the General Rules, which lays down the extent and applicability of the General Rules, specifi cally provides that the General Rules shall not be applica ble to the State Civil Services for which there are express provisions under any law for the time being in force. When the General Rules were enforced the Special Rules were already holding the field. The Special Rules being "law" the application of the General Rules is excluded to the extent the field is occupied by the Special Rules. I do not agree that the non obstante clause in Rule 3(2) of the General Rules has an overriding effect on Rule, 1(3)(a) of the said Rules. With utmost respect to the erudite judgment prepared by Yogeshwar Dayal, J. I prefer the reasoning and the conclusions reached by K. Jayachandra Reddy, J. and agree with the judgment proposed by him. K.JAYACHANDRA REDDY, J. This appeal is directed against the order of the Administrative Tribunal, Bangalore dismiss ing an application filed by the appellant. The principal question involved is whether SubRule (2) of Rule 3 of Karna taka Civil Services (General Recruitment) Rules, 1977 ( 'General Rules ' for short) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 ( 'Special Rules ' for short). For a better appreciation of the question it becomes necessary to state few facts. The appellant was appointed initially as Inspector of Motor ' Vehicle and was promoted as Assistant Regional Transport Officer in the 394 year 1976 in which year the Special Rules were framed. In the year 1981 the appellant was promoted as Regional Trans port Officer. Some of the General Rules of 1977 were amended in the year 1982 and Sub Rule 2 of Rule 3 was inserted in the said Rules. In the year 1989 the second respondent was promoted as Deputy Commissioner of Transport on seniority cure merit basis alone as purported to have been provided in new Rule 3(2) of General Rules. Being aggrieved by the same the appellant filed an Application No. 3155/89 before the Karnataka Administrative Tribunal questioning the promotion of second respondent on the ground that the promotion to the post of Deputy Commissioner of Transport should be by selec tion from the cadre of Regional Transport Officers and not merely on seniority cum merit basis. His application was dismissed by the Tribunal holding that Rule 3(2) of General Rules which was introduced later overrides the earlier Special Rules. It is this order which is questioned in this appeal. Shri P.P. Rao, learned counsel appearing for the appel lant contended that the Special Rules are exclusively meant to govern the recruitment and promotion of officers of various cadres of the Motor Vehicle Department and the General Rules which generally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they are not meant to do so since the Special Rules also are very much in force inasmuch as they are not superseded. Shri P. Chidambaram, learned counsel for the State of Karnataka contended that the non obstante clause in Rule 3(2) of the General Rules which was introduced later clearly indicate the intention of he Legislature to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Commissioner of Transport could only be on the basis of seniority cam merit and not by election. From the rival contentions it emerges that the real question involved is one of construction of non ob stante clause in Rule 3(2) and its fleet on the Special Rules providing for promotion to the post of Deputy Commis sioner of Transport by selection from the cadre of Regional Transport Officers. We shall now refer to the relevant Special and General Rules. The special Rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Con stitution of India in the year 1976. The special Rules of recruitment for the category of post of Deputy Commissioner of Transport reads thus: 395 Category of Method of Minimum posts recruitment Qualification 1. 2. 3. Deputy Transport By promotion by Must have put in not Commissioner selection from the less than five years of cadre of Regional service in cadre of Transport Officers Regional Transport Officers. " It can be seen that this part of Special Rules clearly provides for promotion to the post of Deputy Commissioner of Transport by selection from the cadre of Regional Transport Officers who have put in not less than five years of serv ice. The General Rules were framed in the year 1977 and Rule 3 reads as under: "Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cure merit. The methods of recruitment and qualifications shall be as specified in the rules of recruitment special ly made in that behalf, ' provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment be by selection after an interview by the Commission, the Advisory of Selection Committee or the Appointing Authori ty as the case may be. Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation, as the case may be, in the post held by him. (2) Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or (a) the promotion to the post of Head of Department or the 396 post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection; Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled. (b) the promotion to all other posts shall be on the basis of seniority cam merit." (Emphasis supplied) It may be noted that Sub Rule 3(2) with which we are mainly concerned was inserted in the year 1982. Shri Chidam baram strongly relying on the non obstante clause in Rule 3(2) with which this Sub Rule begins, contended that this general rule dearly supersedes the special law and there fore, according to him, the Tribunal was right in holding that the promotion to the post of Deputy Commissioner of Transport could be only on the basis of seniority cum merit. It is true that a simple reading of Rule 3(2) appears to lay down that notwithstanding anything contained in the General Rules or in the Special Rules, the promotion to the post of a Head or Additional Head of a Department only shall be by selection and that the promotion to all other posts shall be on the basis Of seniority cum merit. This clause (b) of Sub Rule (2) is in general terms and as already noted the General Rules indicate that they regulate general recruit ment to all the Karnataka State Civil Services broadly. It is not in dispute that just like the Special Rules providing for recruitment of the Transport Department there are such special rules in respect of many other departments also. It is therefore clear that while General Rules broadly indicate that they regulate general recruitment including promotion to all the State Civil Services but at the same time each Department has its own Special Rules of recruitment and they are co existing. Such Special Rules of recruitment for the Motor Vehicles Department are not repealed by any provision of the General Rules which are later in point of time. As a matter of fact Rule 21 which provides for repeal does not in any manner indicate that any of the Special Rules stood repealed. It is in this background that we have to consider the interpretation of non obstante clause in Rule 3(2) of the General Rules. At this juncture it is necessary to note that some of the rules of the General Rules also provide for promotion by way of selection and that Special Rules providing for such promotion by selection should be adhered 397 to. They are Rule 1(3)(a), the first part of Rule 3 and Rule 4 which are existing. In Sub rule 1(3)(a) of the General Rules, we find the following "1(3)(a) These rules shall apply to recruit ment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or XX XX (emphasis supplied) This is the opening rule of the General Rules and it abundantly makes it clear that the rest of the rules are subject to any other rules expressly providing for recruit ment. Then in clause (1) of Rule (3) of the General Rules we find the words "Except as otherwise provided in these Rules or any other rules specially made in this behalf recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selec tion or by promotion which may be either by selection or on the basis of seniority cum merit. The methods of recruit ment and qualification shall be as specified in the rule of recruitment specially made in that behalf. " This part of General Rule 3 provides for recruitment by way of promotion either by selection or on the basis of seniority cum merit as specified in the said Rules of recruitment specially made. Further the opening words of clause (1) "Except as otherwise provided in these Rules or any other Rules spe cially made" give a clue that the special rules would govern and regulate the method of recruitment including promotion by way of selection. Further Rule 4 of the General Rules which lays down the procedure of appointment contains Sub Rule 2 which reads as under: "4. Procedure of appointment subject to the provisions of these rules, appointment to any service or post shall be made xxxx xxxx xxxx (2) in the case of recruitment by promotion (a) if it is to a post to be filled by promo tion by, selection, by selection of a 398 person, on the basis of merit and suitability in all respects to discharges the duties of the post with due regard to seniority from among persons eligible for promotion. (b) if it is to a post other than that re ferred to in sub clause (a) by selection of a person on the basis of seniority cure merit, that is, seniority subject to fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion." (emphasis supplied) Though Rule 3(2) of the General Rules is inserted later, the above mentioned Rules remain undisturbed and they co exist. They provide for recruitment and promotion by selection to certain categories of posts and for others on the basis of seniority cure merit. From a combined reading of these provisions of General Rules it follows that re cruitment to any service by promotion as regulated by Special Rules can be by way of selection. "Then the question is whether Rule 3(2) of the General Rules which is intro duced in 1982 particularly providing the method of promotion by selection to the post of heads and additional heads of departments has altogether dispensed with the promotion by selection to all other posts and whether, the non obstante clause in this rule, in these circumstances can be inter preted as to have the overriding effect as contended by the learned counsel for the respondents. The non obstante clause is sometimes appended to a section or a rule in the begin ning with a view to give the enacting part of that section or rule in case of conflict, an overriding effect over the provisions or act mentioned in that clause. Such a clause is usually used in the provision to indicate that the said provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. But it has to be noted at this stage that we are concerned with the enforceability of special law on the subject inspire of the general law. In Maxwell on the Interpretation or Signites, Eleventh Edition at page 168, this principle of law is stated as under: "A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words," where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such 399 general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act." In Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and ors. ,AIR 1966 S.C. 1931, applying this principle it is held that general law does not abrogate earlier special law by mere implication. In Eileen Louise Nicoole vs John Winter Nicolle, , Lord Phillimore observed as under: "It is a sound principle of all juris prudence that a prior particular law is not easily to be held to be abrogated by a poste rior law, expressed in general terms and by the apparent generality of its language ap plicable to and covering a number of cases, of which the particular law is but one. This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country. Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indi rectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. " In Justiniane Augusto De Piedade Barreto vs Antonio Vicente Da Fortseca and others etc.; , , this Court observed that A law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law. Therefore unless the special law is abrogated by express repeal or by making provisions which arc wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication. I have already noted that even in the General Rules the promotion by selection is provided for and if there are any special rules in that regard they are not abrogated except by an express repeal. I shall now examine whether the interpretation of non obstante clause in Rule 3(2) of the General Rules as given by the Tribunal is warranted. The Tribunal has held that the non obstante clause which was 400 introduced in the General Rules clearly indicates the inten tion to supersede the special law. The Tribunal has also noted even a later general law provision can override earli er special law if it clearly indicates the intention to supersede the special law. As a proposition of law one cannot dispute this part of the finding but I am not able to agree with the finding of the Tribunal that the non obstante clause in Rule 3(2) clearly abrogates earlier special law. This very question was considered by Karnataka High Court in Muniswamy vs Superintendent of Police, ILR 1986 Karnataka 344 (Vol. 36). In that case also the same General Rules and particularly Rule 3(2) inserted later came up for consideration. The Special Rules were that of Karnataka State Police State Recruitment Rules, 1967. The Director General of Police issued a circular for the purpose of recruitment of Head Constables on purely seniority cum merit basis. It was contended that the posts of the Head Consta bles have to be filled up by promotion by selection as provided in the Special Rules and Rule 3(2) of the General Rules cannot have an overriding effect inspire of a non obstante clause. The Division Bench of the Karnataka High Court held that Sub rule (2) of Rule (3) which is an amend ment to the General Rules cannot be treated as an amendment to the Special Police Rules and that Rule 3(2) cannot be read as amending all other special rules of recruitment of all other department of Government in general. It also further observed that this amendment to the General Rules must be read as subordinate to the application of Rules declared by Rule 1(3) of the Rules and cannot be read as enlarging the scope. This judgment rendered by the High Court in the year 1986 has become final. The fact that the State did not appeal or repeal the Special Rules suitably in spite of the decision clinchingly shows that it accepted this position. In Aswini Kumar Ghosh and Another vs Arabinda Bose and Another, ; , it was observed as under: "It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment. " It was further held that: 401 "Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Coun cils Act and the Original Side Rules of the Calcutta, and Bombay High Courts. If, as we have pointed out, the enacting part of section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriors leges priores contrarias abrogant (Broomo 's Legal Maxims, 10th Edn., p.347)." (emphasis supplied) In The Dominion of India (Now the Union of India) and another vs Shribai A. Irani and another; , , it was observed as under: "While recognising the force of this argument it is however necessary to observe that al though ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and gram matical construction of the words thereof a non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legisla ture by way of abundant caution and not by way of limiting the ambit and scope of the opera tive part of the enactment". (emphasis supplied) In Union of India and Another. vs G.M. Kokil and 0 hers. , it was observed as under: "It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. " In Chandavarkar Sita Ratna Rao vs Ashalata section Guram, [ ; , the scope of non obstante clause is ex plained in the following words: "A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of con flict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment. " On a conspectus of the above authorities it emerges that the non obstante clause is appended to a provision with a view to give the enacting part of the provision an overrid ing effect in case of a conflict. But the non obstante clause need not necessarily and always be co extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation. In Such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules. Further, the influence of a non obstante clause has to be considered on the basis of the context also in which it is used. In State of West Bengal vs Union of India, [1964] 1 SCR 371, it is observed as under: "The Court must ascertain the intention of the legislature by 403 directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs. " It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense. In Reserve Bank of India etc. vs Peerless General Finance and Investment Co. Ltd. & Ors. ; , it is observed that "That interpretation is best which makes the textual interpretation match the contextual". In this case, Chinnapa Reddy, J. noting the importance of the context in which every word is used in the matter of inter pretation of statutes held thus: Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowl edge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place". If we examine the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear. It is not enacted to supersede the Special Rules. As already noted, there should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause. In the instant case we have noticed that even the General Rules of which Rule 404 3(2) forms a part provide for promotion by selection. As a matter of fact Rules 1(3)(a) and 3(1) and 4 also provide for the enforceability of the Special Rules. The very Rule 3 of the General Rules which provides for recruitment also pro vides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any. In this background if we examine the General Rules it becomes dear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular department. In such a situation both the Rules including Rule 1(3)(a), 3(1)and 4 of general rules should be read together. If so read it becomes plain that there is no inconsistency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules. The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves. The amendment cannot be read as abrogating all other Special Rules in respect of all departments. In a given case where there are no Special Rules then naturally the General Rules would be applicable. Just because there is a non obstante clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out. As already noted Rules 1(3)(a), 3(1) and 4 of the General Rules themselves provide for promotion by selection and for enforceability of the Special Rules in that regard. Therefore there is no patent conflict or inconsistency at all between the General and the Special Rules. Shri P. Chidambaram, in this context, however, submit ted that the intention of the Legislature is to do away with promotion by selection and instead of amending every special rule, the General Rule in the form of Rule 3(2) is inserted and therefore by virtue of non obstante clause all other special rules governing the recruitment to all departments stand abrogated. I am unable to agree. If such was the intention of the amendment then I see no reason as to why even in the General Rules as noted above the promotion by selection is recognised and provided for and these Rules remain unaffected. This is also clear from the fact that the Government did not even appeal against the High Court deci sion rendered in Muniswamy 's case. Shri P. Chidambaram, however, further submitted that a plain reading of Rule 3(2) which is later in point of time would clearly indicate that 405 the Special Rule providing for promotion by selection is repealed at least by implication. There is no doubt that a later statute may repeal an earlier one either expressly or by implication. In the instant case we have already noted that there is no express repeal of the Special Rule provid ing for promotion by selection. The Courts have not favoured such repeal by implication. On the other hand it is indicat ed by the courts that if earlier and later statutes can reasonably be construed in such a way that both can be . given effect to, the same must be done. In Re Chance Farewell, J. observed that "If it is possible it is my duty so to read the section . . as not to effect an implied repeal of the earlier Act". In Kunter vs Phi/lips it is held that: "It is only when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one then only the two cannot stand together and the earlier stands abrogated by the later". In Municipal Council Palai vs T.J. Joseph, ; , this Court has observed that there is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. It is further observed that such a presumption can be rebutted and repeal by necessary implication can be inferred only when the provisions of the later Act are so inconsist ent with or repugnant to the provisions of the earlier Act, that the two cannot stand together. I am satisfied that there is no patent inconsistency between the General and Special Rules but on the other hand they co exist. Therefore, there is no scope whatsoever to infer the repeal by implication as contended by the learned counsel Shri. Chidambaram. In the result the appeal is allowed and the Government is directed to consider the case of the appellant for promo tion to the post of Deputy Commissioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976. In the circumstances of the case there will be no order as to costs. YOGESHWAR DAYAL, J. I have had the pleasure of going through the judgment prepared by my learned brother, Justice K.J. Reddy. However, with due respect, 1 regret 1 have not been able to persuade myself to 406 agree to either his reasoning or the conclusion. There is no quarrel that general principle is that special law prevails over general law but the learned Judge has failed to note that even there is an exception to such a general law, namely it is a later general law which prevails over the earlier special law if it clearly indicates the intention to supersede the special law. This appeal by Special Leave has been filed by Sri R.S. Raghunath against the order of the Karnataka Administrative Tribunal, Bangalore, dated 9th August, 1990. Before the Tribunal the appellant sought a declaration that the promo tion of Shri I.K. Devaiah, respondent No. 2 herein, was illegal and to direct the respondent No. 1 to consider the case of the appellant for promotion to the cadre of Deputy Transport Commissioner with all consequential benefits. The Tribunal dismissed the application filed by the appellant. The Tribunal was called upon to construe Rule 3(2) of the Karnataka Civil Services (General Recruitment) Rules, 1977 as amended in June, 1982 (hereinafter referred to as "the General Rules ')The Tribunal, after considering the general Rules took the view that the non obstante clause in Rule 3(2) of the General Rules which was introduced after framing of the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (in short 'the Special Rules ') clearly indicates the intention to supersede the special law. The Tribunal took the view that the general principle that the special law prevails over the general law has one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law. The Tribunal held that a non obstante clause in Rule 3(2) of the General Rules, which was enacted after the Special Rules, clearly indicates the intention to supersede the special law. The controversy rises in the following circumstances. The Special Rules came into force on or about 10th December, 1976 on the publication of the same in the Karna taka Gazette (Extraordinary). It consisted of only two Rules (I) and (II). The first Rule gave the 'title and commencement ' and the second Rule dealt with the 'method of recruitment and minimum qualifications '. There was a sched ule attached to Rule 1I. In the schedule for the post speci fied in column 1 thereof the method of recruitment and minimum qualification were specified in corresponding en tries in columns 2 and 3 thereof. It dealt with roughly 35 categories of posts. I may mention that there was only one post, namely the post of Deputy Transport Commissioner for which the method of recruitment was by selection from the cadre of Regional Transport Officers who must have put in not less than five years of service in that cadre. 407 For all the rest of the posts in the schedule there was no provision for recruitment by way of promotion by selection. For all the posts the method of recruitment was either by promotion or by deputation or by direct recruitment, or both by direct recruitment and promotion or by merely posting a suitable officer or by direct recruitment through employment exchange etc. The only recruitment to the post of Deputy Transport Commissioner was by method of promotion by selec tion. At the time when the aforesaid Special Rules were enact ed the Karnataka State Civil Services (General Recruitment ) Rules, 1957 (in short the General Rules of 1957 ) were in operation which were repelled by the General Rules. So long as the General Rules of 1957 continued the Special Rules continued to govern the method of recruitment of the posts as specified in the schedule attached to the said Special Rules. The General Rules of 1957, as stated earlier, were repelled by the General Rules which came into force on 25th June, 1977. Rule 1(3)(a) of the General Rules provided thus: "1.(3) (a) These rules shall apply to re cruitment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or (ii) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government". It is thus clear from the provision of Rule 1(3)(a) that the General Rules were applicable for all purposes to mem bers of all State Civil Services including the Motor Vehi cles Branch except to the extent otherwise expressly provid ed by the Special Rules. The Special Rules, as mentioned earlier, dealt with the method of recruitment and qualifica tion for the Motor Vehicles Branch and so far as the post of Deputy Transport Commissioner was concerned, the method of recruitment was "promotion by selection". The Special Rules dealt with nothing else. It is also clear from Rule 1(3) of the General Rules itself as to what is the scope of its applicability. It was applicable to all posts except to the extent otherwise expressly provided for by the Special Rules. Rule 3(1) of the General 408 Rules, before the insertion of sub rule (2), reads as fol lows: "3. Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruit ment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cum merit. The methods of recruitment and qualifications shall be as specified in the rules of recruit ment specially made in that behalf: Provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authori ty as the case may be. Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation as the case may be, in the post held by him. " The substantive part of Rule 3(1) described various methods of recruitment but stated that the methods of re cruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf. The first proviso described that when in the Special Rules for recruitment no provision is made for direct recruitment, the method of recruitment shall be by selection after an inter view by the Commission, the Advisory or Selection Committee to the Appointing Authority, as the case may be. The second proviso to Rule 3(1) contemplated that no person shall be eligible for promotion unless he has satisfied three com pleted years of probation or officiation, as the case may be, in the post held by him. The second proviso is by way of abundant caution in view of the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as 'the Probation Rules ') because of Probation Rules contemplated that the period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall not be less than two years '. The Proba tion Rules also contemplated declaration of satisfactory completion of probation at the end of the prescribed period of probation as extended or reduced by the appointing au thority. It may be useful to note that Rule 19 of the Gener al Rules also dealt with probation and appointments by promotion. It is clear from reading of Rules 1, 2 and 409 3, as originally enacted, of the General Rules that so far as the Special Rules expressly provided to any particular branch of the State Service that was to prevail over the General Rules. Rule 3A, as amended, provided for qualifica tion in respect of ex servicemen, irrespective of the provi sions of the Special Rules. Rule 4 provided the procedure of appointment. It also provided that if the appointment is by way of selection, how a selection has to be conducted and if the recruitment is by way of promotion, how it has to be done. Rule 5 provided for disqualification for appointment. Rule 6 provided the age limit for appointment. Rule 8 pro vided for reservation of appointments for scheduled castes, scheduled tribes, backward tribes etc. Rule 9 contained provision for ex servicemen and physically handicapped notwithstanding anything contained in the Special Rules. Rule 10 contemplated conditions relating to suitability and certificates of character. Rule 11 provided for procedure how the applications have to be made by the Government servants for recruitments. Rule 16 provided for relaxation notwithstanding the provisions contained in the General Rules or the Special Rules. Rule 16 A provided for appoint ment by transfer. Rule 17 dealt with appointment by direct recruitment or by promotion in certain cases notwithstanding anything contained in the General or Special Rules. All these Rules arc applicable to all the posts except to the extent as contemplated by Rule(3) of the General Rules. This was the position at the time of enactment of General Rules in 1977. appears that Rule 3 of the General Rules was amended and subrule (2) was added to Rule 3. Rule 3(2) of the Gener al Rules, so added in June, 1982, reads thus: "3(2). Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post (a) the promotion to the post of Head of Department of the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection: Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled. 410 (b) the promotion to all other posts shah be on the basis of seniority cum merit". We are really concerned with the scope of Rule 3(2) of the General Rules for proper decision of this case. Both the General Rules and the Special Rules have been framed by the Government of Karnataka in exercise of powers under Article 309 of the Constitution of India. It is clear from Rule 1(3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State. A perusal of different rules in the General Rules makes it clear that the general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruitment relating to different depart ments. For example, provisions relating to age limit for recruitment, disqualification for recruitment, joining time etc. should find place in Special Rules and normally they should be uniform for all categories of posts. Instead of repeating them in all Special Rules of each department they have been put in one set of rules known as the General Rules. It would be impossible to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made. If that was so, what arc the provisions relating to disqualification, age limit, joining time etc. for posts for which Special Rules governing of recruitment have been made ? There are no other rules gov erning the subject except the General Rules. By the wording of Rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by the criterion of "seniority cum merit '. To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provi sion in the General Rules by incorporating a non obstante clause stating that it would apply to all services and posts j notwithstanding the provisions in the General Rules or in the Special Rules of the State. This aspect is absolutely clear by a mere reading of Rule 3(2) of the General Rules. In the case of Maharaja Pratap Singh Bahadur vs Man Mohan Dev. AIR 1966 SC 1931, the Supreme Court approved the following quotation from Maxwell on Interpretation of Stat ute:/ 411 "A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt. with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. " In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act? ' It is stated therein that for the general principle that the special law prevails over general law there is one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law. The non obstante clause intro duced by amending Rule 3 of the General Rules by adding Rule 3(2) which was enacted after the Special Rules indicates the clear intention to supersede the Special Law to the extent that for the posts which arc not Head of the Departments or Additional Head of Departments the promotion, if provided for by way of selection, would mean on the basis of seniori ty cum merit and not on the basis of merit only. As I have noticed earlier if we look at the Special Law it contained various methods of recruitment to about 35 posts mentioned in the Schedule annexed thereto but there is only one post for which the promotion was proposed by selec tion. Surely it would have been flimsy way of drafting if one particular clause of a particular Special Law was sought to be individually repelled by enacting a repealing clause for that purpose. To get over that the non obstante clause is introduced later on by the same authority which enacted both the General and Special Laws to give its latest man date. The latest mandate cannot be ignored. Rule 1(3) of the General Rules which accepted the ap plicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself. In the present case the respondent No. 2 herein was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cummerit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given 412 by a positive mandate. The learned counsel for the appellant strongly placed reliance on the decision of the Karnataka High Court in the case of Muniswamy vs Superintendent of Police, dated 18th July, 1986 (Annexure 'F ' pages 66 to 108 of the paper book). That decision dealt with the General Rules and the Special Rules in relation to Karnataka State Police Service (Re cruitment) Rules,. We have to construe the meaning of Clause 3(2) for ascertaining the object and purpose which the legislature had in view in enacting the said provision and the context thereof. It appears to me that the Special Rules for re cruitment to some of the services had been in force provid ing a particular method of either selection or promotion. It appears that because of the experience the Government had of its working, it was thought proper to change this policy, namely instead of providing selection on the basis of merit to every post, in certain posts, it thought it fit to give due weightage to seniority and merit instead of having the 'best '. The selection of 'best ' very often has an ele ment of chance which may not be very conducive to proper climate and harmony in service. It appears that because of that experience the rule making authority thought it fit that the process of promotion by selection should be con fined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cum merit. I find that there is a clear mandate of latest intention of the rule making authority contained in Rule 3(2) of the General Rules and this must be respected by the Court. The Courts are not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and implemented even by violation of the Rule, will not be sound rule of construc tion of statute. I am afraid I have not been able to persuade myself to agree with the reasoning of the learned Division Bench in the aforesaid case of Muniswamy vs Superintendent of Police. The learned Division Bench had restricted the scope of Rule 3(2) to only such officers whose "service or post is not regulated by any Special Rules. then and then only the posts of Head of Departments of Government as defined in 1982 Rules had to be filled by promotion by selection and all other posts in such Departments have to be filled by promotion on seniority cure merit basis". The Division Bench also examined the merits and demerits of various forms of selection at great length and took the view in paragraph 41 of the judgment as under: "We were shocked and surprised when the learned Govern 413 ment Advocate submitted before us that he was supporting the stand urged by Sri Bhat and the circular issued by the Director under instruc tions from Government. We have no doubt that the Government had not really reflected on the untenable stand it was urging before this Court which, if accepted would have meant death knell to .efficiency in the services of the State. " I am surprised with this type of approach. It is not the function of the Court to examine the efficacy of one form of selection or the other. It is for the recruiting authority, namely the Government to examine it and enforce it in the way it like. To use such an expression "death knell to efficiency" really gives the mind of the Court that it wants to enforce the particular policy even though the latest mandate is for change of the policy in the name of efficien cy. This type of reasoning really ignores the specific provision of the non obstante clause applying to even "in the rules of recruitment specially made in respect of any service or post". In Ajay Kumar Banerjee and others vs Union of India and others, at page 153 Sabyasachi Mukharji, J. (as His Lordship then was) observed thus: "As mentioned herein before if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would pre vail would have arisen and that would have necessitated the application of the principle "Generalia specialibus non derogant". The general rule to be followed in ease of con flict between the two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two fol lowing conditions is satisfied. (i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is ful filled, the later law, even though general, would prevail". It is thus clear that both the conditions mentioned by Mukharji, J., 414 speaking for the Bench are fulfilled. In this case whether the promotion has to be by the method of selection or sim plicitor promotion on the basis of seniority cum merit, is the contest. The Special Law contemplated promotion by selection whereas the later law contemplates promotion by the method of seniority cum merit. The two are inconsistent with each other. This fulfills the first condition. So far as the second condition is concerned there is an express reference in the later general law "in the earlier enact ment". But as per the proposition of Mukharji, J., if either of the two conditions are fulfilled the later law, even though general, would prevail. Surely the provision of recruitment contemplated in the Special Police Rules is inconsistent with the latest general provision applicable to all posts in Karnataka. In the present case the later gener al law prevails over the earlier special law because the non obstante clause specifically mentions its efficacy inspite of the Special Law. It was for the legislature to choose the method of indicate its intention. The Courts should not defeat their intention by overlooking it. The respondent No. 2 has been selected for promotion by follow ing the General Rules amending the Special Rules and I find it was strictly in accordance with law. I am, therefore, of the considered view that the appeal deserves to be dismissed with parties to bear their own costs. G.N. Appeal allowed.

These Writ Petitions filed before this Court challenged the liberalisation for private sector operations in the Road Transport field, under the . The petitioners were the existing operators on different routes. On behalf of the petitioners, it was contended that the issue of more permits on the same route adversely affected their rights guaranteed under Articles 14 and 19 of the Constitution of India. It was further contended that though imposition of limit for grant of inter State permits was permissible under Section 88(5) of the Act, it was not so in respect of intra region permits and hence it is discrimina tory; that in public interest the grant of intra region permits should be limited. Dismissing the Writ Petitions, this Court, HELD: 1.1. Restricted licensing under the old Act led to the 429 concentration of business in the hands of few persons there by giving rise to a kind of monopoly, adversely affecting the public interest. The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis. The transport business is bound to be ironed out ultimately by the rational of demand and supply. Cost of a vehicle being as it is the business requires huge investment. The intending operators are likely to be con scious of the economics underlying the profession. Only such number of vehicles would finally remain in operation on a particular route as are economically viable. In any case the transport system in a State is meant for the benefit and convenience of the public. The policy to grant permits liberally under the new Act is directed towards the said goal. [438 A C]. 1.2 The petitioners are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India. There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statu tory rights. More operators mean healthy competition and efficient transport system. Over crowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the roof top are some of the common sights in this country. More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of blacksmoke from the exhaust pipe. It is, there fore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter public to board the vehicle of their choice and patronise the operator who is providing the best service. Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting per mits. [437 EH; 438 A]. Hans Raj Kehar & Ors. vs The State of U.P. and Ors., ; , followed. Jasbhai Desai vs Roshan Kumar & Ors., ; ; ,Saghir Ahmad vs The State of U.P. and Ors., ; , relied on. Rameshwar Prasad & Ors. vs State of Uttar Pradesh & 0rs.[1983] 2 SCC 195, distinguished. It is only the State which can impose reasonable res tric 430 tions within the ambit of Article 19(6) of the Constitution of India. Section 47(3) and S7 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the right under Article (19)(1)(g) so far as the motor transport business was concerned. The said re strictions have been taken away and the said provisions have been repealed from the Statute Book. The new Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business. The provisions of the Act are in conformity with Article 19(1)(g) of the Constitu tion of India. When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint. [440 B D]. The three categories of permit seekers in respect of interegion, intra region and inter State permits cannot be considered to be belonging to the same class. Different criteria have been provided under the Act for granting permits in respect of each of the categories. It is not the case that Section 80 brings about discrimination in the matter of grant of permits between applicants belonging to the same class. [442 B] Hans Raj Kehar & Ors. vs The State of U.P. and Ors. ; , relied on. Matters such as conditions of roads, social status of the applicants possibility of small operators being eliminated by big operators, conditions of hilly routes, fuel availability and pollution control are supposed to be within the comprehension of the transport authorities. The legislative policy under the Act cannot be challenged on these grounds. It is not disputed that the Regional Trans port Authority has the power under the Act to refuse an application for grant of permit by giving reasons. It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits. The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of. power in granting permits under the liberalised policy. [444 D F]

N: Criminal Appeal No. 451 of 1978. Appeal by Special leave from the Judgment AND order dated S G 78 of the Bombay High Court in Criminal Application No. 15 of 1978. Ram Jethmalani Ashok Desai, section J. Thakore, K. R. Krishnamurthy, Sri Narain for M/s J. B. Dadachanji and Co. for the Appellants. H. R. Khanna and M. N. Shroff for the State of Maharashtra. P. N. Lekhi, Girish Chandra and Miss A. Subhashini for Union of India. The judgment of the Court was delivered by SEN, J. This appeal by special leave directed against a judgment of the Bombay High Court dated 5th June, 1978, dismissing a petition filed by the appellant under Article 226 of the Constitution, by which he prayed for the issue of a writ of habeas corpus, and the connected petition under Article 32 of the Constitution by his wife for the issuance of a writ of habeas corpus for his release raise a common question and therefore they are disposed of by this common judgment. A vessel known as 'Jamnaprasad ' BLS 61 valued at one lac of rupees was found grounded in a creek off the coast near village KimKhadi on the 20th August, 1977. On receipt of information regarding the grounding of the vessel the Customs officers, Hansot, visited the spot and examined the contents of the cargo aboard the aforesaid grounded vessel. It was laden with 12 rolls of stainless steel sheets each weighing one tonne, valued at Rs. 15,44,400/ . The aforesaid vessel and the contraband goods found aboard it were seized by the 318 Customs officers for action under the . They made inquiries about the whereabouts of the crew members of the aforesaid vessel 'Jamnaprasad ' and were successful in apprehending them and the others involved. Intelligence gathered by the Customs officers clearly indicate that the appellant was the main person connected with the smuggling of the aforesaid cargo of contraband goods, namely 12 stainless steel sheets recovered from vessel 'Jamnaprasad ' BLS 61. The appellant, who ostensibly carries on the business of manufacturing, sale and export of Umrao brand wick stoves, spray pumps, cash and jewellery metal boxes, in the name and style of "Umrao Industries" and has his factory for the manufacture of the aforesaid items at village Kim, has been detained by an order of the Addl. Secretary to the Government of India, Ministry of Finance (Department of Revenue), New Delhi, dated the 1st of February, 1978 under sub section (1) of section 3 of the , with a view to prevent him from smuggling goods. He was arrested and placed under detention on the 5th of February, 1978, and is at present detained in the Central Prison, Bombay. At the time of his arrest, the appellant was served with the order of detention together with the grounds of detention with full particulars on which the order of detention was based. On 15th February, 1978 the case was referred by the Government to the Advisory Board as required under section 8(b) of the Act to enable the Board to make its report under sub cl. (a) of cl. (4) of Article 22 of the. Constitution. The appellant made two representations against his detention to the Government, one dated the 4th and the other dated the 6th of March, 1978, which were received by the Government on the 7th and 8th March, 1978, respectively. The Advisory Board had, in the meanwhile addressed a letter dated 21st of February, 1978, to the Government intimating that the case would be taken up on the 13th March, asking that the detenu be produced at the hearing and the Government should also forward the representation, if any, made by the appellant, together with the comments/decision of the Government, if any. On the 13th of March, the appellant was accordingly produced before the Advisory Board. The Government placed before the Board the two representations made by the appellant together with its comments. The appellant was heard in person; the Government 's point of view was placed before the Advisory Board by the Deputy Secretary to the Government, Ministry of Finance, Department of Revenue, who was accompanied by the Assistant Collector. Customs, 319 Bulsar. On the 16th of March, 1978, the appellant sent a telegram to the Advisory Board supplementing his oral submissions. The detaining authority rejected the representations made by the appellant on 1 8th of March, 1978. On 10th of April, 1978 the Advisory Board submitted its report giving its opinion that there was sufficient cause for the detention. The Government accordingly confirmed the order B, of detention. In the light of the circumstances appearing, it was conceded that the grounds for detention set out the facts with sufficient degree of particularity and that it did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. The order of detention was, therefore, not challenged on the ground that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority, or for the making of any effective representation. It is argued that the detention of the appellant was, however, bad for two reasons namely, (1) the detention was in violation of the constitutional right guaranteed under Article 22(5), inasmuch as the Government withheld consideration of the representations made by the appellant till after the hearing before the Advisory Board, and (2) the impugned order of detention is bad due to non application of mind inasmuch as the facts alleged clearly and distinctly show that the appellant did not himself smuggle the contraband goods. Both the contentions are, in our opinion, wholly devoid of substance. It is urged that the Government was under a constitutional obligation to consider the representations before the hearing before the Advisory Board. There is no quarrel with the principle but the difficulty is about the application of the principle on the facts and circumstances of the present case. In fact, the Government has to reach its decision uninfluenced by the opinion of the Advisory Board. It is, however, urged that the Government; in This particular case, had not made up its mind till the hearing before the Advisory Board on 13th March, 1978, and therefore, its decision reached on the 18th March was not that independent application of mind that the law requires, because by then the proceedings had: begun before the Board and the Government must have been influenced in its decision. There is no warrant for the submission that the disposal of the 1 representations made by the Government, in the instant case, was not in conformity with Article 22(5) of the Constitution. First, we shall 320 deal with the law on the subject before dealing with the factual aspect. Article 22(5) of the Constitution enacts: "When any person is detained in pursuance of an order made under any law providing for preventive detention, 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." In Abdul Karim & ors. vs State of West Bengal(t) this Court interpreted the language of Article 22(5) and observed: "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. " It was further observed: "In our opinion, the constitutional right to make a representation guaranteed by article 22(5) must be taken to in elude by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under article 22(5) is a valuable constitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives! of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the view point contended for by the respondent is correct, the constitutional right under article 22(5) would be rendered illusory. " Thus the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other. (1) ; , 321 In Pankaj Kumar Chakrabarty & ors. vs State of West Bengal(1), this Court again considered cl. (5) of article 22 and enunciate the Following principle: "In our view, it is clear from cls. 4 and S of article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the board before it gives its opinion. If in the light of that representation the board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the re presentation to ascertain whether the order is in conformity with its power under the relevant law, the board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. " 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. The nature of the dual obligation of the Government and the corresponding dual right in favour of the detenu under article 22(5) was reiterated by this Court in Khairul Haque vs The State of West Bengal(2) in these words: "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 (1) [1970] I SCR 543. (2) W.P. No. 246 of 1969, decided on September 10, 1969. 322 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, be 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 same procedural safeguards were reaffirmed by this Court in Jayanarayan Sukul vs State of West Bengal (1) and Dhurus Kanu vs State of West Bengal.(2) The High Court in this case, and the Delhi High Court in Thaneshwar Singh vs The Union of India & ors.(3) appear to be labouring under misconception that merely because there is no express provision in s.8(b) of the placing an obligation to forward the representation made by the detenu along with the reference to the Advisory Board, unlike those contained in s.9 of the and s.10 of the Maintenance of Intemal Security Act, 1971 there is no obligation cast on the Government to consider the representation made by the detenu before forwarding it to the Advisory Board. We have no doubt in our mind that when liberty of the subject is involved, whether be it under the or the or the , it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law. The relevant Articles of the Constitution having a bearing on this question is article 22. Two of these safeguards, which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on the arbitrary exercise of power, are tor be found in article 22(5) of the Constitution. (1) ; (2) AIR 1975 SC 571. (3) Cr W. No 6 of 1978 decided on September 25, 1978 (Delhi High Court) 323 When any person is detained in pursuance of an order made under any law providing for preventive detention, 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 representation against the order, These procedural safeguards are ingrained in our system by judicial interpretation. The power of preventive detention by the Government under the , is necessarily subject to the limitations enjoined on the exercise of such power by Art 22(5) of the Constitution. as constructed by this Court. Thus, this Court in Khudiram Das vs The State of West Bengal & ors (1) observed: "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be abserved before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security. " This has always been the view consistently taken by this Court in a series of decision. It is not necessary to burden this judgment with citations of these decisions. The view to the contrary taken by the Bombay and the Delhi High Courts that these procedural safe guards are not available to a person detained under the is clearly wrong. The Constitution is all pervasive. All laws made by a State must, therefore, yield to constitutional limitations and restrictions. The citizen 's right to personal liberty is guaranteed by Article 22 irrespective of his political beliefs, class, creed or religion. This Court has forged certain procedural safeguards in the case of preventive detention of citizens. These safeguards might be designated as a regulative 'Postulate of Respect ', that is, respect for the intrinsic dignity of the human person. (1) ; 324 In pursuit of the idealistic considerations as to the inherent worth and dignity of men, the Parliament, in the light of the experience gained recently, repealed the . The repeal of that Act is necessitated to promote the citizen 's right to personal liberty, which is a fundamental and pervasive theme of the Constitution, to guard against the preventive detention of a person for political beliefs. This was also in accord with the recommendation of the Law Commission in its Forty seventh Report, p. 2, para 1.4, that preventive detention should be retained only for preventing anti social and economic offences. The repeal of the and the retention of the , however, does not imply that preventive detention, which is an anachronism in a democratic society like ours, can be freely used, without any power of judicial review and without any checks and balances, against persons engaged in anti social and economic offences. This assumption by the two High Courts ignores centuries of judicial lawmaking when it denies the competence of courts to weigh competing social interests. The courts have always viewed with disfavour the detention without trial whatever be the nature of offence. The detention of individuals without trial for any length of time, howsoever short, is wholly inconsistent with the basic ideas of our Government. To put it less euphemistically, the alternative is the renunciation of judicial review itself, and acceptance of the intolerable principle that the Government is the judge of its own powers. So, this Court observed in Prabhu Dayal Deorah vs District Magistrate, Kamrup: "We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading, the personal liberty of a citizen, except in accordance with the procedure established by the constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over emphasized. There will be no social security without maintenance of adequate supplies (1) ; at 22 23. 325 and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty. " The constitutional safeguards embodied in article 22(5) of the Constitution, as construed by this Court, must, therefore, be read into the provisions of section 8(b) of to prevent any arbitrary executive action. In the instant case, however, there was no infraction or the constitutional safeguards enshrined in article 22(5). We are satisfied that there was no failure on the part of the Government to discharge its obligation under article 22(5). The records of the Government as well as of Advisory Board have been placed before us It clearly shows that the Government had forwarded the two representations made by the appellant on the 4th and 6th of March, 1978, alongwith its comments in writing together with a forwarding letter on the 9th of March, 1978. From a bare perusal of the forwarding letter and the accompanying para wise comments in writing, it is amply clear that the Government had already formed an opinion that the order of detention was in conformity with its powers under the law. It cannot, therefore, be said that the Government in rejecting the representations made by the appellant by its order dated 18th March, 1978 was, in any way, influenced by the views expressed by the Board. Though, the Government was represented at the hearing by the Deputy Secretary, Ministry of Finance, Revenue Department, and the Assistant Collector, Customs, Bulsar, it is nobody 's case that the Advisory Board had at the hearing indicated its mind as to whether there was sufficient cause for detention. On the contrary, the telegram sent by the appellant on the 16th March, 1978 ex facie shows that the Board had not expressed its mind at the hearing. It is, therefore, irrefutable that the Government had taken a decision uninfluenced by what transpired at the hearing before the Board. The matter was dealt with by the Government at all levels, and the detaining authority had come to an independent conclusion of his own by applying his mind to the facts and circumstances of the case. Here, similarly the Board by its report dated the 10th April, 1978 independently arrived at its opinion that there was sufficient cause for detention . 326 Learned counsel for the appellant next strenuously contends that there was non application of mind on the part of the detaining authority. It was submitted that though the order for detention was made with a view to preventing the appellant from smuggling goods, i.e., under cl. (i) of sub section (1) of section 3 of the Act, his case on the facts revealed in the grounds for detention clearly fell under cl.(ii) of sub s.(1) of section 3, as he could not, by any stretch of imagination, be treated to be a smuggler but he was only an abettor. May be, he instigated, organised and facilitated the act of smuggling, but it is said, the actual smuggling of the contraband goods, was by others. His act, there fore, constituted abetment of smuggling for which there is a separate clause under section 3(i)(ii). The order of detention cannot, therefore, be justified under s.3(1) (i). Applying a wrong clause, it is urged, shows non application of mind. We are afraid, the learned counsel is stretching the argument too fine. Section 3(1) of the Act, so far material reads: 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 em powered 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 em powered 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;" There is, no doubt, a distinction between an act of smuggling and abetting the smuggling of goods for purposes of preventive detention under section 3 (1) of the Act. Nonetheless, the term "smuggling ' as defined in section 2(e) of the Act has the same meaning as in section 2(39) the , which, when read with section 111 of that Act, is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling or contraband goods as well as all persons dealing in such goods, etc. Though the provisions of cls. (i) and (ii) of sub s(1) of section 3 of the Act may operate on different fields, which may sometimes, as here, overlap, still a wider meaning is given 327 to the term 'smuggling in section 2(e) of the Act, with a view to broaden the scope of preventive detention. Sub section (1) of section 3 of the Act provides for the different grounds of detention. Clause (i) relates lo smuggling of goods, clause (ii) relates to abetting the smuggling of goods, clause (iii) relates to engaging in transporting or concealing or keeping smuggled goods, clause (v) relates to harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. It must, therefore, be assumed that the intention of the legislature was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct, and both are separate grounds for detention i.e., to take in all such activities which result in accomplishment of smuggling of contraband goods. In a case like the present, where there is a widespread network employed by a person, it cannot be said that he is not engaged in the act of smuggling. It is accepted before us that the appellant. instigated, organised and facilitated the smuggling of the contraband goods in question. Not only that but he is really the person to whom the goods belonged. The appellant went to the extent of going to Dubai for purchasing the contraband goods, had thereafter taken delivery of the same at Dubai and had them loaded into the vessel; the vessel actually belonged to the appellant and the crew members were engaged by his agent Siddiq Hussain, who was sent from Bombay to Dubai to bring the vessel. He took charge of the vessel as a tindel and but for the fact that the rudder of the vessel failed, the contraband stainless steel rolls would have landed in the creek near The factory of the appellant. It is clear that Kunji Mohmed, in whose name the vessel 'Jamnaprasad ' BLS 61 was registered, was merely a dummy but the vessel actually belonged to the appellant, who had purchased it from one Kasam Jamal for a sum of Rs. 40,000/ . It was he who got the vessel repaired at Bombay and an oil engine fitted; and, he, through his agent Siddiq Hussain Sup, engaged the members of the crew. It appears that the appellant left for Dubai on the 18th of May, 1977 by air and returned to Bombay on the 2nd June, 1977. He prolonged this stay at Dubai/Abu Dhabi for seven days and had to pay a fine of 100 Dirhams per day for his over stay. During his period of stay at Dubai, he purchased 20 rolls of stainless steel sheets worth rupees 20 lacs. It also appears that the appellant and Kunji Mohmed wanted to load the whole of the contraband good into the vessel but the driver Ali and Amad Mamad, the tindel, refused to carry such a heavy cargo. The appellant told them that 328 he would go to Bombay and send Siddiq Hussain Sup. It further appears that the oil engine in the vessel was replaced, with his concurrence, with a new diesel engine. After his departure, only 12 rolls of stainless steel sheets could be loaded in the vessel by Kunji Mohmed and Amad Mamad. There after, while the vessel was on its voyage to India it developed engine trouble and had to remain at sea for about ten days whereafter, it returned to Sarjah port in Dubai. In the meanwhile, Siddiq Hussain Sup had reached there from Bombay, on instructions from the appellant, and took charge of the vessel as tindel. The vessel again left Sarjah port but had W remain in the sea near Khodgam for about 8 to 10 days due to stormy weather. After a voyage of about 6 to 7 days, the vessel reached near the coast of India outside the creek where it was found grounded. It had to be anchored at a place known to Siddiq Hussain Sup, that is, near about the factory of Umrao Industries belonging to the appellant in village Kim, but the crew members lost the track and had to move around the creek for about 4 days because the rudder had failed. Then lt entered the aforesaid creek, some 20 kms. away from the factory, where it ran aground due to damage to the rudder. During a search of the house of Kunji Mohmed, certain documents relating to the repairs of vessel No. BLS 61 and a dairy containing telephone Nos. 395279, 375943 and 361973 and also one postal receipt No. 55955 issued by Jamnagar Post office showing looking of a trunk call to telephone No. 395279 or 375943 were found. The first two telephone numbers have been installed at the Bombay office of the appellant, while the third is at his residence at Bombay. The postal receipt No. 55955 showed that this trunk call from Jamnagar was booked for Bombay in the name of the appellant. Two more trunk call ticket Nos. L. 0285 and 158, dated 18th June, 1977 showed that the former trunk call was booked by him to Okha telephone No. 91 with Siddiq Hussain Sup as P.P., while the latter was in respect of the return call (lightening) made by the appellant to the aforesaid okha telephone. The trunk call booked from telephone No. 91 okha was to the appellant 's office telephone No. 395279 in Bombay with P. P. Babubhai. Obviously, the over stay of the appellant at Dubai was in connection with the loading of the contraband stainless steel sheet rolls, which have been valued at Rs. 15,44,400/ . The synchronising of the visit with the taking of the vessel to Dubai, and then loading of the stainless steel rolls for the purpose of transportation to India, are very significant and unimpeachable circumstances to show the smuggling pro pensities of the appellant. 329 It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of section 3(1) of the Act. Thus, there was due application of mind. It is manifest that the appellant could in the instant case be detained under sub s.(1) of section 3 of the both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) section 3(1) of the Act was properly invoked. In the result, both the appeal as well as the writ petition must fail and are dismissed. There shall be no order as to cost P.B.R. Appeal and Petition dismissed.

The appellant was detained under section 3(1) of the Conservation of Foreign Exchange an(1) Prevention of Smuggling Activities Act, 1974 with a view to prevent him from smuggling goods. Two representations made by him against his detention were forwarded by the Government to the Advisory Board with its comments. He was later produced before the Advisory Board. On receipt of the Advisory Board 's report that there was sufficient cause for detention, the order of detention was confirmed by the Government. The High Court dismissed his petition under article 226 of the Constitution. In appeal the appellant challenged the order of detention on the ground that (1) it was in violation of the right guaranteed under article 22(5) inasmuch as the Government withheld consideration of the representations made by him till after the hearing by the Advisory Board, and (2) the impugned order of detention was bad due to non application of mind of the detaining authority inasmuch as the facts alleged clearly and distinctly showed that the appellant did not himself smuggle the goods. Dismissing the appeal, ^ HELD: (1)(a) There was no warrant for the submission that the disposal of the representations made by the Government was not in conformity with article 22(5) of the Constitution. [319H] (b) It is well settled that in case of preventive detention of a citizen, Art 22(5) of the Constitution enjoins that the obligation of the appropriate Government to afford the detenu an 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 material, to the Board to. enable it to form its opinion and to obtain such opinion. [321E] Abdul Karim & ors. vs State of West Bengal; , ; Pankaj Kumar Cluakrabarly & ors. vs State of West Bengal; , , Khuairul Haque vs The State of West Bengal W. P. No. 246 of 1969, decided on September 10, 1969, Jayanarayan sukul vs State of West Bengal; , Dhurus Kanu vs State of West Bengal, AIR 1975 SC 571; referred to. (c) The constitutional safeguards embodied in article 22(5) must be read into the provisions of section 8(b) of the Conservation of Foreign Exchange and Preventional of Smuggling Activities Act, 1974 to prevent any arbitrary executive action. Merely because there is no express provision in section 8(b) of the Act placing an obligation to forward the representation made by the detenu along 316 with the reference to the Advisory Board unlike the provisions contained in section 9 of the and section 10 of the , it cannot be said that there is no obligation cast on the Government to consider the representation made by the detenu before forwarding it to the Advisory Board. [325C; 322D E] Thaneshwar Singh vs The Union of India & ors. , Cr. W. No. 6 of 197 decided on September 25, 1978 (Delhi High Court); over ruled. (d) When the liberty of the subject is involved, whether it is under the or the or the , it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law had been scrupulously observed and that the subject was not deprived of his personal liberty otherwise than in accordance with his. [322 G] (e) When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the ground on which the order had been made and shall afford him the earliest opportunity of making representations against the order. These procedural safeguards are ingrained in our system of judicial interpretation. The power of preventive detention by the Government under the Act is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) of the Constitution. [323A] Khudiram Das vs The State of West Bengal & ors. ; referred to. In the instant case there was no infraction of constitutional safeguards enshrined under article 22(5) and there was no failure on the part of the Government to discharge its obligations under that article. Quite clearly the Government had forwarded the appellant 's two representations alongwith its comments to the Advisory Board. A perusal of the comments of the Government make it clear that the Government had already formed an opinion that the order of detention was in conformity with its powers under the law. It cannot be said that in rejecting the appellant 's representations the Government was influenced by the views expressed by the Board. At the hearing the Board had not indicated its mind as to whether there was sufficient cause for detention. It is, therefore, irrefutable that the Government had taken a decision uninfluenced by what transpired at the hearing before the Board. The matter was dealt with by the Government all: all levels, and the detaining authority had come to an independent conclusion of its own by applying its mind to the facts and circumstances of the case. [325D H] (2)(a) The intention of the legislature in enacting section 3(1) was to treat the smuggling of goods and abetting the smuggling of goods as grounds separate and distinct and both are separate grounds for detention i.e. to take in all such activities which result in accomplishment of smuggling of contraband goods. 'the term 'smuggling ' as defined in section 2(e) of the Act read with section 2(39) and s 111 of the Customs Act, is wide enough to include and make liable not only the actual smugglers but also persons abetting the smugglers, of contraband goods as well as all persons dealing with any such goods. A wider meaning is given to the term 'smuggling ' in section 2(e) of the Act with a view to broaden the scope of Preventive detention. In a case like the present where a wide 317 spread network is employed by a person, it cannot be said that he was not Engaged in the act of smuggling. The appellant was not only the person who instigated, organised and facilitated the smuggling of the contraband goods but he was really a person to whom the goods belonged. The facts set out in the ground of detention make it clear that the appellant was the person who was actually engaged in the act of smuggling of contraband goods into the Indian Customs waters For all intents and purposes the appellant was the actual smuggler and not a mere abettor His " activities were such that his case would be covered by both clauses (i) and (ii) of section 3(1) of the Act. [326G H; 327A B] (b) Assuming that the appellant was merely an abettor in the smuggling of contraband goods on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself included in actual smuggling of the balance of contraband goods by remaining behind in the foreign country. [329D]

Civil Appeal No. 1419 of 1971. Appeal by Special Leave from the Judgment and Order dated 24 11 1970 of the Orissa High Court in O.J.C. No. 466/66. D. D. Suri (In person). K. K. Venugopal, Addl. of India, R. B. Datar and Girish Chandra for Union of India. L. N. Sinha and G. section Chatterjee for the State of Orissa. The Judgment of the Court was delivered by SEN J. This appeal, by special leave, is directed against the judgment and order of the High Court of Orissa, dated November 24, 1970, dismissing the appellant 's writ petition for fixation of his year of allotment in the Indian Administrative Service as 1942 instead of 1944 and for giving necessary benefits to him in the fixation of his pay. The facts of this case are complicated and involved. It is nevertheless necessary to unravel these complicated facts, in order to appreciate clearly what are the questions which must be dealt with in this appeal. The appellant having been selected by the Special Recruitment Board as an Emergency Recruit from the 'Open Market ', was appointed to the Indian Administrative Service on August 7, 1950 and allocated to the Orissa cadre. He was born on January 7, 1950, and joined the Editorial Staff of the Civil & Military Gazette, Lahore, towards the end of 1938. He continued to serve the Civil & Military Gazette upto January 7, 1943 when he joined the Army. During the 30 Second World War, he was granted an Emergency Commission in the Army w.e f. March 7, 1943 with the rank of Lieutenant w.e.f. June 3, 1948 but with seniority in that rank w.e.f. September 9, 1944. The Government of India, Ministry of Home Affairs, New Delhi, by letter dated July 19, 1951, forwarded a statement showing the years of allotment assigned to various officers borne on the Indian Civil Administrative cadre of Orissa. The year of allotment assigned to the petitioner was 19431/2 for purposes of seniority, on the basis of his particulars as available at that time. On receiving his representation, the Ministry of Defence was requested to furnish information regarding the particulars of his pay and allowances drawn by him during the period December 31, 1944 to December 31, 1948. As the information furnished by the Ministry of Defence did not tally with those furnished by the petitioner in his application for recruitment to the Indian Administrative Service to the Special Recruitment Board, he was asked to explain the discrepancy between the particulars furnished by him and those furnished by the Ministry of Defence. He was also asked to explain why his seniority should not be calculated on the basis of the information furnished by the Ministry of Defence according to which his year of allotment should have been 1945. On receiving his reply, the Government of India, Ministry of Home Affairs, by its letter dated June 11, 1952 decided after due consideration that his 'protection pay ' should be treated as part of his pay, the allowances like the Calcutta Compensatory and Lodging allowances etc. were not to be counted as part of his pay. It was further decided that the deficiency of six days in counting the number of completed years of actual experience could not be condoned. The Government of India, Ministry of Home Affairs, accordingly, fixed the year of allotment of the petitioner to the Indian Administrative Service as 1944. The appellant has had a chequered career. It appears that the petitioner faced heavy weather in the State of Orissa, from where in 1952 he was sent out on deputation to the Government of India i.e. after he had served the State Government of Orissa for a period of little less than two years. Thereafter, he remained continuously on deputation with the Government of India for 12 1/2 years till he reverted to his parent State on April 23, 1965, despite the objection of the then Chief Minister. He served as Deputy Secretary to the Government of India in the Ministry of Transport from 1955 to 1961. On April 1, 1961 he proceeded on long leave. On his return from leave, the petitioner was appointed as the Salt Commissioner and Managing Director, Hindustan Salt Ltd. with headquarters at Jaipur. He held both the posts until December 23, 1963 and only as Salt Commissioner till 31 April 7, 1964, whereafter he was reverted to the State of Orissa. On his reversion to the State, he was first appointed as Managing Director, State Warehousing Corporation, a post usually held by an Additional District Magistrate, but later on allowed to officiate in the super time scale as Revenue Divisional Commissioner, Sambalpur w.e.f. October 24, 1965, by reverting an officer junior to him. While the petitioner was serving as Commissioner of Land Reforms, Orissa, a prosecution was launched against him on November 24, 1967 section 5(2) read with section 5(1) (e) of the Prevention of Corruption Act, 1947, on a charge of having assets to the tune of Rs 3,29,476.90 disproportionate to his income. There was a search of his house at Cuttack on and after November 27, 1967, and he was placed under suspension by the Government of Orissa on November 28, 1967 under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955. Eventually, the prosecution ended in an acquittal. The petitioner was compulsorily retired by the Government on June 9, 1971. On September 1, 1977, the State Government after the order of acquittal, issued an order directing that the period from November 29, 1967 i.e. the date of suspension, till June 9, 1971, i.e., the date of his retirement, shall be treated as period spent on duty. It also made consequential directions in the matter of pay and allowances, treating him in the super time grade from November 29, 1967 to April 24, 1968 and, thereafter in the selection grade, from April 25, 1968 till June 9, 1971. The questions sought to be raised by the appellant who appeared in person, are no doubt of a wide and general importance. The question still remains whether one of them, i.e., regarding the year of allotment need or could be decided at all. Three questions arise for determination on his submissions: First, whether the Court has the jurisdiction or the power to make a direction requiring the Government of India, to re fix the year of allotment of the petitioner as 1942 instead of 1944 as determined, respecting his seniority in the Indian Administrative Service, from which he has retired; secondly, whether the Fundamental Rules applied to the petitioner, and if so, whether he was entitled under F.R. 49 for the period from September 11, 1961 to December 23, 1963 during which he simultaneously held both the posts of the Salt Commissioner and the Managing Director, Hindustan Salt Ltd. with headquarters at Jaipur in the State of Rajasthan, to the full salary of one post and additional salary upto a maximum of 50% of the second post, which salary has been denied to him; and thirdly, whether the Next Below Rule implied in F.R. 30 was applicable to the petitioner while he was serving in connection with the affairs of the Union. inasmuch as his junior in the Orissa cadre, Shri V.V. Anant 32 krishnan was appointed in the super time scale on July 24, 1962 and he was thus entitled to the benefit of the same and had to be placed in the super time scale w.e.f. July 24, 1962 to June 9, 1971, i.e., the date of his retirement. But the whole structure of this argument has no real foundation. The Union of India and the State of Orissa filed counter affidavits and denied the petitioner 's right to relief on any of the grounds. In its elaborate judgment, the High Court carefully considered all the aspects and took the view that the considered decision of the Government of India, Ministry of Home Affairs, on the representation of the petitioner reached after due consideration, cannot be interfered with. They had decided not to condone the deficiency of six days in counting the number of completed years of actual experience, nor take into account compensatory allowance like Calcutta Compensatory allowance and the lodging allowance, in calculating his pay, for determining the year of allotment. Further, the High Court observed that the failure of the petitioner to explain the discrepancy between the particulars as furnished by him and those furnished by the Ministry of Defence, his failure to produce any records to show what the information of the Ministry of Defence was or even the reply that he had ultimately sent to the Government of India in trying to explain the discrepancy, coupled with the fact that he had neither produced the impugned order of the Government of India fixing 1944 as the year of allotment, nor had he furnished the details of his pay and allowances from time to time in respect of the period in question, were fatal to the petitioner 's case. It also observed that in the absence of any good reason being shown to justify intervention by the Court in the exercise of its writ jurisdiction, the contention regarding the year of allotment cannot be accepted. The High Court also held in the alternative, that the Government of India had arrived at the correct year of allotment in respect of the petitioner. In determining the number of completed years in the 'N ' formula, the Government was not duty bound under Rule 3 to relax the same, and its refusal to condone the deficiency of six days, it could not be said that the Government had not dealt with the case in a just and equitable manner. In its view, the benefit claimed by the petitioner, to say the least, would be in direct contravention of the requirement that no fraction of a year was to be taken into account. On a proper reading of the 'N ' formula, it was not possible to read into the same the imposition of a duty on the Government to relax the requirements in appropriate cases, nor would the Government be justified in 33 making a departure from the plain meaning of the instructions in a particular case, merely on the ground of hardship. According to the High Court, the word 'pay ' in the context of the relevant Rules and Instructions, included only such allowances as were intended to form an addition to pay and not compensatory allowances like Calcutta City Allowance and Lodging Allowance etc. , i.e., allowances which were essentially compensatory in character and were intended to be reimbursed to the Government servant for the expenditure incurred by him in the course of his duty and, therefore, they could not be taken to form part of 'pay ' as referred to in the instructions. It lastly held that it was not disputed before it with regard to the applicability of the 'Next Below Rule ', that promotion to a post in super time scale involves an element of selection and not mere seniority, and that there was nothing to show that the Government of India ever failed to apply their mind to the case of the petitioner in respect of his claim to the benefit of the 'Next Below Rule ', nor was it argued before it that the Government of India acted mala fide or in an arbitrary manner. From the language of the clarificatory letter of the Secretary of State for India in Council, dated April 2, 1947, it was clear that no Officer can claim as of right promotion to a post carried in super time scale under the 'Next Below Rule '. It merely embodies the guiding principles governing promotion to such post which involves an element of selection and not mere seniority. There can be no doubt, in our opinion, agreeing with the decision of the High Court, that the petitioner was not entitled to any relief. The High Court has, to our mind, reached a just and correct decision. At the very outset, we tried to impress on the petitioner that his main relief, i.e. with respect to fixation of the year of allotment according to the 'N ' formula, had become infructuous, as he had already retired from service and only the subsidiary relief i.e., for giving necessary benefits to him in the fixation of his pay remains which is nothing but a monetary claim, for the enforcement of which the remedy lay elsewhere. But the petitioner who appeared in person persisted in arguing all the points raised particularly the one regarding fixation of the year of allotment saying that he was doing it for the 'benefit of others '. We have, therefore, no alternative but to deal with the appeal on merits. We fail to comprehend what relief the petitioner can be granted in this appeal. In his application for grant of special leave to this Court under Article 136 of the Constitution, the petitioner has cate 34 gorically stated that 'he was no longer interested in the relief for determination of the year of allotment ', according to the 'N ' formula, since he was on the verge of retirement, and that the arguments advanced on his behalf in the High Court were, therefore, only confined to 'his entitlement to additional pay under F.R. 49 ', irrespective or the fact whether he was given the benefit under the 'Next Below rule or not. ' In this connection, he avers: "2. In the said writ petition, your petitioner had prayed for the following reliefs from the respondents: (a) Proper fixation of his year of allotment in the Indian Administrative Service; (b) Grant to the petitioner of the necessary benefits under Fundamental Rule 49 and 'Next Below Rule ' in the fixation of his pay at a rate higher than the super time scale pay of the IAS from 11 9 1961, the date on which he took over concurrently the two appointments of Salt Limited, and at super time scale pay from 23 12 1963 when he held the appointment of Salt Commissioner only." "4. That the petitioner was much less interested in the adjudication of the claim stated in sub para (a) in view of his impending retirement from service". "the petitioner 's main interest was in his claim stated in detail in sub clause (b) of para 2, particularly its portion relating to his entitlement of extra remuneration under Fundamental Rule 49 for holding two independent posts concurrently, which involved arrears of pay amounting to over 30,000/ ." (Emphasis supplied) In that situation, the petitioner cannot be heard to say that the Government of India had not arrived at a correct decision in assigning 1944 as the year of allotment to him. Even if he were entitled to do so, the contention merits no consideration. The learned Additional Solicitor General has, at our request, placed before us all the relevant records of the Ministry of Home Affairs, Ministry of Finance and the Ministry of Law & Justice which bare upon the questions at issue. On a perusal of these records, it is quite clear that the Government of India evolved uniform policy as a matter of principle to deal with such questions. In the light of the set principles, all the demands of the appellant were considered at 35 each stage, and found that they could not be accepted, keeping in view the desirability of uniformity of policy in such matters. In support of the contention regarding the year of allotment, the appellant 's submission is twofold, namely, (i) the Government of India were in error in not condoning the deficiency of six days in reckoning the completed years of his service after attaining the age of 25 years. He has wrongly been given credit for only 8 years instead of 9 years as there was a short fall of six days to complete 9 years, which short fall should have been waived by the Government, and (ii) he being a regular Army Officer, the definition of 'pay ' in F.R. 9(21) (b) was attracted, so that in determining the year of allotment, 'pay ' would also include allowances like Lodging Allowances. We are afraid, none of the contentions can prevail. It is common ground that as regards Emergency Recruits from the 'Open Market ', the year of allotment was to be determined according to the 'Open Market Emergency Recruitment Scheme ', embodied in the instructions of the Government of India for the preparation of a common gradation list for the officers of the Indian Civil Service cadre in each State issued on July 7, 1950. The relevant instructions adverted to, so far as material, (hereinafter referred to as 'N ' formula) read as follows: "IV Emergency Recruits from the 'Open Market ': These officers should be given an year of allotment on the basis of the following rules below: (1) The number of completed years of actual experience of the officers after attaining the age of 25 and upto the 31st December, 1948 as certified by the Special Recruitment Board will be the period of previous experience to be taken into account. This period will be divided into two parts, N1 and N2 as below: (a) N1 means the period of continuous employment on a pay or income of not less than Rs. 800 per month between 31st December, 1944, and the 31st December, 1948, inclusive. (b) N2 means the entire period of previous experience to be taken into account, exclusive of N1. (2) The year of allotment in each case will be 1949 Y, where Y = N1+1/2 of N2. " 36 These instructions form a part of counter affidavit filed on behalf of the Union of India and are printed in the All India Services Manual, Second Edition, at p. 774, with the heading "Executive Instructions/Orders issued by the Government of India under the Indian Administrative Service (Regulation of Seniority) Rules, 1954". The year of allotment: 'N ' formula: Rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, so far as relevant, reads: "3. Assignment of year of allotment (1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. (2) The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules." Even according to the appellant, he is not entitled, under the 'N ' formula as it stands, to a credit of more than 8 years. If that be so, the High Court quite properly declined to exercise its extra ordinary jurisdiction under Article 226 of the Constitution inasmuch as no writ or direction could be issued, in a matter which was essentially in the discretion of the Government, to re fix his seniority by giving credit for 9 years instead of 8 years as provided for, as admittedly the relevant instructions require 'completed years of actual experience '. Normally, the decision of the Government of India assigning a year of allotment to a particular officer under Rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, or in accordance with orders and instructions issued by the Central Government in that behalf before the commencement of these Rules, is final and cannot be interfered by the Courts under Article 226 of the Constitution unless such decision was capricious or arbitrary or in breach of the said Rules. The same principle should apply to the assignment of a year of allotment under the 'N ' formula. The contention that the Government of India should have condoned the short fall of six days by relaxation of the relevant Rules under the powers vested in it by the All India Services (Conditions of Service Residuary Matters) Rules, 1960, can hardly be accepted. These Rules were not in force when the Government of India, Ministry of 37 Home Affairs, by their letter dated July 19, 1951 issued a statement showing their years of allotment assigned to officers borne on the Indian Civil Administrative Service cadre of Orissa, wherein the year of allotment assigned to the petitioner was 19431/2, or even at the time when the Ministry of Home Affairs by its letter dated June 11, 1952 rejected his representation in that behalf, while revising his year of allotment to 1944. The relevant records of the Government of India, Ministry of Home Affairs disclose that the Government of India adopted a uniform policy in this regard and short falls of even less than 6 days have not been condoned so that there could be uniformity of taking note of 'completed years of service ', irrespective of the short fall of number of days, in calculating the year of allotment in every case under the 'N ' formula. The question of relaxation was considered at the highest level as admitted by the petitioner himself. The records of the Government of India, Ministry of Home Affairs, disclose that by letter dated June 11, 1952, the Government of India after due consideration, rejected the representation of the petitioner, by issuing an order to the following effect: "I am directed to say that the Government of India have carefully considered the points raised by Sri Suri in his representation. The decisions thereon are as follows: (i) Considering the circumstances in which the pay scale in the Army was generally reduced and a 'protection pay ' was given, the Government of India consider that it would only be fair that the 'protection pay ' granted to Sri Suri during his service in Army should be "treated as part of his basic pay for purposes of determining his seniority. (ii) The Calcutta Compensatory Allowance and the Lodging Allowance drawn by Sri Suri during the period October 1944 to August 1947, cannot be treated as part of pay for computing N1 or N2. (iii) Sri Suri has represented that the completed years of service after attaining the age of 25 upto the 31st December 1948, calculated in accordance with the formula falls short of one additional year in his case because of a shortage of six days. He has requested that this deficiency should be condoned. The Government of India have rejected similar requests for condonation of even shorter periods and regret, therefore, that they are unable to accede to the request. On the basis of the decision referred to in para 1(i) above, Shri Suri 's revised year of allotment works out to be 1944. His position in the Orissa Indian Civil Administrative gradation List (forwarded with the Ministry of Home Affairs letter No. 2/3/52 AIS, dated the 26th April, 1952) will therefore be immediately below Sri S.T. Merani (section No. 12) and above Sri S.S. Murthi (section No. 33). The serial numbers of Sri Murthi and officers below him in the list may be changed accordingly." (Emphasis supplied). The matter did not rest at that. Thereafter, the All India Services (Conditions of Service Residuary Matters) Rules, 1960 were framed, and by Rule 3 the Central Government were conferred power to relax the rules and regulations regulating the conditions of service appointed to an All India Service, in any particular case, on the ground 'undue hardship ', as they may consider it necessary for dealing with the case in a just and equitable manner. A doubt was raised whether the power of relaxing rules was intended to be applicable to 'Recruitment Rules ' also. The Government of India have held that the 'Recruitment Rules ' cannot be relaxed under Rule 3. Nevertheless, the petitioner kept on making representations and the question was reconsidered on occasions more than once as reflected in the order of Sri Govind Ballabh Pant, Minister for Home Affairs, dated June 1, 1958, which reads: "Sri Suri 's case has been considered more than once. I do not find, however, any adequate reasons for revising the orders already passed. It would be difficult to condone the deficiency even if it be of only 7 days in the case of only one officer. The rule which gave an advantage to married officers cannot apply to him as he was not married at the time." (Emphasis supplied). Even assuming there was a power to condone the deficiency, the matter rested entirely in the discretion of the Government of India. When a decision in a policy matter like this is left to the absolute discretion of the Executive, we do not see how the Courts can interfere and issue a direction to the Government of India to reconsider the matter afresh, after a lapse of more than 25 years. It would not only disturb the combined gradation list of the officers belonging to the Indian Administrative Service, but also affect the seniority of many officers who have not been impleaded in these proceedings. May be, many of them may have died or retired and even as regards the others, they may have been confirmed in the super time grade. 39 The High Court, therefore, rightly, in our opinion, held that there could be no interference in such matters. `N ' Formula and F.R. 9(21) (b): F.R. 9(21)(b) reads: "(b) In the case of a military officer, in receipt of the rates of pay introduced on July 1, 1924, pay includes the amount which he receives monthly, under the following designations: (i) pay of appointment, lodging allowance and marriage allowance; and "(ii) pay of rank, command pay, additional pay, Indian Army allowance, lodging allowance and marriage allowance. " F.R. 2 provides that the Fundamental Rules shall apply, subject to the provisions of F.R. 3, to all Government servants whose pay is debitable to civil estimates and to any other class of Government servants to which the President may by general or special order declare them to be applicable. It is, however, provided by F.R. 3 that unless it be otherwise distinctly provided by or under the rules, nothing in these Rules shall apply to Government servants whose conditions of service are governed by Army or Marine Regulations. It is, therefore, obvious that the definition of 'pay ' in the case of a military officer, introduced by F.R. 9(21) (b), is for 'protection pay ', when such officer is recruited in civil service under the employment of the Union of India, i.e., for fixation of his pay in such service. For this limited purpose, the term 'pay ' not only includes the 'rank pay ' but also command pay, additional pay etc., and, 'allowances ' like lodging allowance and marriage allowance are treated as part of 'pay '. If a military officer had been receiving any of these allowances, they will fall under the head 'pay ' under F.R. 9(21) (b). F.R. 9(21) (b) had, therefore, no relevance in the matter of fixing the seniority of Emergency Recruits from the 'Open Market ' to the Indian Administrative Service, like the petitioner, even where they were drawn from the Army, but was applicable only in regard to fixation of their initial pay. It is, however, argued that the petitioner was a regular Army Officer at the time when he was appointed as an Emergency Recruit from the 'Open Market ' and, therefore, his pay for purposes of calculating the year of allotment was regulated by F.R. 9(21) (b), in the absence of any provision to the contrary. 40 The argument appears to be somewhat attractive but on deeper considerations must be rejected. The underlying principles on which the 'N ' formula was evolved by the Government of India are set out in the letter of the Ministry of Home Affairs, dated July 18, 1949, the substance of which reads: "4. No decision has yet been reached about the seniority to be accorded to candidates from the 'Open Market ' appointed to the IAS on the recommendation of the Special Recruitment Board. There were two alternative methods by which seniority of such officers should be determined, viz. (a) on the principle of the 'basic pay ' or (b) related to the experience which the candidates concerned had gained in their respective employment, profession or business. The 'basic pay ' of the Emergency Recruits drawn from the 'Open Market ' had been fixed mainly on the basis of age. As regards (a) it was felt that if seniority is to follow strictly the basic pay, the initial 'basic pay ' would be subject to a maximum of Rs. 660/ for the junior scale and Rs 1,000/ in the senior scale which represents the pay admissible in the tenth year of service at the age of 36. The alternative method of approach, i.e., to relate seniority of the new recruits to be length of his actual experience in the previous employment, business or profession, would be fair to the recruits themselves inter se as it would maintain a distinction on the basis of their 'actual experience '. It was, therefore, proposed that credit should be given to the Emergency Recruits for the purpose of determining their seniority in the IAS at the rate of six months in every year of experience which such recruits may have after the age of 25. " The 'pay ' for purposes of determining the year of allotment under 'N ' formula of such recruits like the petitioner was, therefore, the 'basic pay ' which must necessarily exclude allowances. This concept of 'basic pay ' for fixation of initial pay is reflected in the Indian Administrative Service (Pay) Rules, 1954 which takes into account only the 'initial pay '. It has been stated on behalf of the Union of India that the Special Recruitment Board, for this recruitment, interviewed candidates who were already employed under the Government or in commercial firms or business houses and in public or local bodies as well as members of the legal profession and others and out of 153 candidates selected, 115 were Government servants, 15 were from commercial firms and 41 business houses, 8 from public and local bodies, 4 from legal profession and 11 from other sources. The rule which requires credit to be given for the period of continuous employment on pay or income not less than Rs. 800/ p.m. would, therefore, apply uniformly to persons who were previously lawyers or employed in business houses or in Government services. Uniformity in such a case can only be attained by excluding allowances in every case, because the allowances which persons drawn from these different sources would be getting, would be varied in character. The Government of India, therefore, acted fully in consonance with Articles 14 and 16 of the Constitution in excluding allowances in computing the pay. The amount of Rs 800/ p.m. was taken as a basis as it was the first stage in the senior time scale of pay of officers in the Indian Administrative Service. In this scale, the amount of Rs 800/ is the 'basic pay ' without including allowances. Under these circumstances, the decision taken from the beginning was that allowances would not be included in computing the pay and as long as this decision is applied uniformly, without exception, the appellant can have no grievance in this regard to seniority specifically as allowances would have to be added uniformly to all other persons in the seniority list. Thus, the definition of 'pay ' in F.R. 9(21)(b) is applicable only for the fixation of 'pay ' of a Government servant who had been recruited from the armed Forces. In such a case, the total salary including such allowances as falling within the definition, is taken note of. The petitioner admittedly was given an initial pay of Rs 1,000/ i.e. much higher than officers appointed to the Indian Administrative Service on the result of the competitive examinations. Here we are not concerned with the fixation of pay of the petitioner but with regard to the Rules relating to the fixation of his seniority which would take note of the period prior to his recruitment to the Indian Administrative Service and for that purpose the 'basic pay ' alone was relevant. The concept of pay under F.R. 9(21) (b) cannot, therefore, be introduced for purposes of regulating the year of allotment under 'N ' formula, as it relates to fixation of seniority and not of pay. The matter falls to be regulated by the interpretation placed by the Government of India, Ministry of Home Affairs in their letter dated July 18, 1949. If the definition of 'pay ' in F.R. 9(21) (b) was to be taken note of, then Calcutta compensatory allowance and marriage allowance would also be included. Obviously, a rule which makes seniority dependent upon marriage allowance and, therefore, on whether the officer was married or not will be violative of Article 14 of the Consti 42 tution. The appellant gave up before the High Court his claim to the inclusion of marriage allowance though covered by the definition of pay, and in this Court his claim for the inclusion of Calcutta Compensatory Allowance. In dealing with the question, the High Court has observed that the word 'pay ' in the context of the relevant Rules and Instructions included only such allowances as were intended to form an addition to pay and not compensatory allowance like Calcutta City Allowance and Lodging Allowance etc. , i.e., allowances which were essentially compensatory in character and were intended to be reimbursed to the Government servant for the expenditure incurred by him in the course of his duty and, therefore, they could not be taken to form part of 'pay ' as referred to in the 'N ' formula. We cannot see that the appellant is on a better footing as regards lodging allowance, which is usually given to Army Officers in lieu of rent free quarters. They become at once disentitled to such allowance the moment they are allotted quarters. Lodging allowance is, therefore, essentially compensatory in nature. The inclusion of pay as defined in F.R. 9(21) (b) in the 'N ' formula to include the Lodging allowance, is not permissible as the appellant would have to claim the application of the definition of 'pay ' in its full rigour or not at all. Any other construction will lead to manifest injustice as it would result in discrimination between persons similarly situated, i.e., between an Army Officer in receipt of lodging allowance in lieu of rent free quarters and one in occupation of such rent free quartes, in the matter of seniority in the Indian Administrative Service. The inevitable conclusion, therefore, is that the definition of 'pay ' in F.R. 9(21) (b) was not applicable for purposes of fixation of seniority of the appellant. Fundamental Rules and their applicability: It is not necessary for our purposes to deal with the larger question as to whether the Fundamental Rules regulate the conditions of service of members of the Indian Administrative Service. As at present advised, we are inclined to think that their conditions of service are regulated by the provisions of All India Services Act, 1951 and the various Rules and Regulations framed thereunder, such as Indian Administrative Service (Recruitment) Rules, 1954, Indian Administrative Service (Cadre) Rules, 1954, Indian Administrative Service (Pay) Rules, 1954, Indian Administrative Service (Regulation of Seniority) Rules, 1954, Indian Administrative Service (Appointment by Promotion) Regulation, 1955, All India Services (Discipline & Appeal) Rules, 1955 and 1969, All India Services (Conditions of Service Residuary Matters) Rules, 1960 etc. When there is speci 43 fic provision made in regard to them on a particular subject regulating their conditions of service in the said Act and the Rules, the question of applicability of the Fundamental Rules does not arise. Even assuming that the Fundamental Rules were applicable on August 7, 1950 i.e. at the time when the appellant was appointed to the Indian Administrative Service, these Fundamental Rules ceased to be applicable on the coming into force of the aforesaid rules and regulations framed under the Act, unless the President by an order under F. R. 2 declared them to be so applicable. Combination of posts and right to Additional Pay under F.R. 49: The short question for consideration is whether the appellant was entitled under F.R. 49 for the period from September 11, 1961 to December 23, 1963 during which he simultaneously held both the posts of the Salt Commissioner and the Managing Director, Hindustan Salt Ltd., with headquarters at Jaipur, to the full salary of one post and additional salary of a maximum of 50% of the second post. The answer must clearly be in the negative. The provisions of F.R. 49 were not applicable to him after the Indian Administrative Service (Pay) Rules, 1954 were brought into force; and even if they were, F.R. 49, in terms, provides that when a civil servant holds two posts. he is disentitled to draw the salary of both the posts. All that such a civil servant becomes entitled to is the salary of the higher post, but no additional salary can be allowed for performing the duties of the lower post. Thus, the pay of one of the posts can be allowed. Furthermore, the rules relating to pay applicable in 1962 were the Indian Administrative Service (Pay) Rules, 1954 which make no provision for additional pay. Rule 13 of the said Rules reads as follows: "13. Repeal and saving. Any rules corresponding to these rules and in force immediately before the commencement of these rules are hereby repealed: Provided that any order made or action taken under the rules so repealed shall be deemed to have been made or taken under the corresponding provisions of these rules. " It would thus follow that the provisions of Fundamental Rules in regard to pay, even if applicable, ceased to apply from the date on which the Indian Administrative Service (Pay) Rules, 1954 came into force. The appellant therefore, would normally not be entitled to invoke F.R. 49 in regard to the salary paid to him when he was simultaneously holding the two posts in question. 44 Even assuming that the provisions in the Fundamental Rules would continue to apply to a member of the Indian Administrative Service in regard to which no specific provision is made by framing a rule under the All India Services Act, 1951 and, therefore, the appellant was still governed by F.R. 49, he had no claim to any additional salary. The records of the Government of India, Ministry of Home Affairs disclose that the ground on which the claim of the appellant was rejected was that at the time the post of Managing Director, Hindustan Salt Ltd. was brought into existence, there was a down grading of the posts of Salt Commissioner having regard to the diminution in the nature of duties and responsibilities attached to the said post. Normally, this should have resulted in a reduction in the scale of pay of the post of Salt Commissioner, but the Government of India, on due application of mind, refrained from doing so, purely on consideration of his additional charge, and continued the post in the same scale of pay as a result of which the appellant in fact, obtained monetary benefit. For this reason, the Finance Ministry did not agree to any extra remuneration over and above the scale of Rs. 1800 2000/ to the Salt Commissioner cum Managing Director. The grievance of the appellant that his successor in office to the post of Salt Commissioner, Jaipur was given a pay of Rs. 2,250/ was also considered, but his representation was rejected on the ground that the said incumbent had already been drawing Rs. 2,250/ when he was asked to hold the post of Salt Commissioner, Jaipur. The relevant records disclose again a full and detailed application of mind to the issues involved. Thus there was no question of the appellant being entitled to be given an additional pay under F.R. 49 i.e. full salary of one post and additional salary upto a maximum of 50% of the other post, for the period from Sepetember 11, 1961 to December 23, 1963, during which he simultaneously held both the posts. `Next Below Rule ' The intention underlying the second proviso to F.R. 30(1) which is commonly known as the 'Next Below Rule ' is the principle that when an officer in a post (whether within the cadre of his service or not) is for any reason prevented from officiating in his turn in a post on higher scale or grade borne on the cadre of the service to which he belongs, he may be authorised by special order of the appropriate authority pro forma officiating promotions into such scale of pay and thereupon be granted the pay of that scale or grade, if they be more advantageous to him on each occasion on which the officer imme 45 diately junior to him in the cadre of his service draws officiating pay in that scale or grade. The principle behind the so called rule is evidently that an officer out of his regular line should not suffer by forfeiting acting promotion which he would otherwise have received had he remained in his regular line: The State of Mysore vs M. H. Bellary. (1) The real implications of the 'Next Below Rule ' as defined in the Secretary of State for India 's ruling clarified by the Government of India, Ministry of Finance by letter No. 2(25) Est. III/46, dated April 2, 1947: All India Services Manual, 2nd ed. 765 66, in so far as they bear upon the claim or right to the benefits thereunder in respect of the appellant, are extracted below: "The so called 'rule ' is not a rule of any independent application. It sets out only the guiding principles for application in any case in which the Governor General in Council, or the Governor exercising his individual judgment in virtue of the powers conferred on him by the Secretary of State 's Rule of the 14th April, 1942 (published with Home Department Notification No. 195/40 Ests., dated the 9th June 1942), proposes to regulate officiating pay by special orders under the second proviso to Fundamental Rule 30(1). The condition precedent to the application of the 'Next Below Rule ' must, therefore, be fulfilled in each individual case before action may be taken under this proviso. " It would thus appear that the 'next Below Rule ' is not a rule of any independent application. It sets out only the guiding principles for application in any case in which the President or the Governor proposes to regulate an officiating pay by special order under the second proviso to F.R. 30(1). The condition precedent to the application of the 'Next Below Rule ' must, therefore, be fulfilled in each individual case before any action can be taken under this proviso. It was not disputed before the High Court with regard to the 'Next Below Rule ' that promotion to a post in super time scale involves an element of selection and not mere seniority. The Government of India, Ministry of Home Affairs, intimated the petitioner in June 1965 that his representation for fixation of pay in the super time scale on the basis of the 'Next Below Rule ' had been rejected. It was, therefore, accepted before the High Court that there was due application of mind by the Government of India to the case of the peti 46 tioner in respect of his claim to the benefit of the 'Next Below Rule ' and that there was nothing to show that the Government had acted mala fide or in an arbitrary manner in rejecting his claim. The Additional Solicitor General placed before us voluminous records showing that, as a rule of universal application, the benefit of the 'Next Below Rule ' has never been extended when there is promotion to a post in super time scale. This is a problem which has faced the Government of India on numerous occasions and eventually the Government reached a uniform decision that the 'Next Below Rule, should not be applied to a super time scale post, carrying Rs. 2,500 125/2 2750 for considerations of policy which are these: (i) The length of Service which officers in States have to put in before they get promotion to super time scale is not uniform, (ii) Most of the States have got Divisional Commissioners, while some States do not have this post, (iii) The posts of Secretaries in some States carry pay in super time scale while in other these posts carry pay in the senior scale; and (iv) An officer might be good enough to be a Divisional Commissioner, but might not be good enough to be Joint Secretary to the Government of India. The benefit of the 'Next Below Rule ' is available in the selection grade but this benefit has not so far been allowed to the members of the Indian Administrative Service in the super time scale. The considerations on which this policy of the Central Government is based are contained in the note of Sri L. P. Singh which is reproduced below: "The length of service which officers in different States have to put in before they get promotion is not uniform. In some States, officers become Commissioners in the 15th or 16th year of service, in some, even officers who have put in 20 years service in the Indian Civil Service are still drawing pay in the senior time scale. Again while most States have got Divisional Commissioners, some have not. Further, Secretaries to Government in West Bengal, Maharashtra and Gujarat are allowed special rates of remuneration. Again, while an officer may be good enough to be a Divisional Commissioner, he may not necessarily be good enough to be a Joint Secretary to the Government of India. " It appears that the State Government of Tamil Nadu made a reference on the subject, and the matter was studied in depth by the various ministries. The Ministry of Home Affairs was not unfavourably inclined. It expressed that since new guide lines have been evolved and the State Governments have been requested to constitute 47 a Screening Committee for considering the cases of the members of the Indian Administrative Service for appointments to posts carrying pay in super time scale, the benefit of super time scale should be extended to officers on deputation with the Government of India under the 'Next Below Rule '. It, however, agreed that there cannot be complete uniformity at any particular time, since the length of service which officers in different States have to put in before they get promotion is not uniform but expressed that this criterion loses much of its force with the passage of time and that the view that an officer might be good enough to be a Divisional Commissioner and might not be good enough to be the Joint Secretary to the Government of India, hits at the very root of the system of Administration which we have adopted in this Country. It further expressed that the fact that most of the States have got Divisional Commissioners while some States do not have these posts, has no relevance. It, therefore, proposed that officers belonging to the Indian Administrative Service should be given pro forma promotion to the super time scale by the State Government under the 'Next Below Rule ' so that the service rendered by such officer from the date of such promotion, will count for the purpose of fixation of initial pay, on reversion to the present cadre, and also for the purpose of increments, and the benefit should be allowed on 'one for one basis '. It was also suggested in the alternative, that if the benefit of the 'Next Below Rule ' could not be extended to such officer and if he is detained by the Government in a lower post at the Centre against his wishes and in public interest, he should be given the 'higher pay ' on personal basis, i.e., as a measure personal to him within the frame work of the policy quoted above. When the matter was referred to the Ministry of Finance, it did not agree to either proposal, and the Ministry of Law rightly pointed out: "It is not appropriate to raise the scale of ex cadre post to that of super time scale merely because the incumbent has become due for promotion to the super time scale. The pay attached to a post is with regard to the nature of the duties and responsibilities and not with reference to the entitlement of the incumbents. " As regards, the scope of the protection of pay envisaged by the proviso to sub rule (2) of Rule 6 of the Indian Administrative Service (Cadre) Rules, the Law Ministry advised that: "The concept of the basic pay which the officer would have drawn but for his deputation is limited to the basic 48 pay of the post to which he would have been promoted in the natural course of things but not to a post like a supertime scale to which appointment is not only on the basis of seniority but also merit and suitability. " Thus the present position is that the benefit of the 'Next Below Rule is available at the first stage of selection i.e. at the time of appointment in the selection grade but not at the second stage, namely, at the time of promotion to the super time scale. It is, therefore, abundantly clear that the appellant cannot claim as a right the super time scale merely on the basis of his seniority among the members of the Indian Administrative Service belonging to the Orissa cadre. The process of appointment to the super time scale is by selection. When the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right: Union of India vs M.L. (Capoor(1). Promotion to the super time scale is, therefore, not a matter of course. The officer must stand the test of suitability and his integrity must be beyond doubt. For this purpose, there is a Senior Selection Committee which prepares a select list of suitable officers which must be approved by the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and submit the same for approval to the Union Public Service Commission as well as to the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised every year, and the Senior Selection Committee meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding is independent of the other. That is why as soon as the proceedings of the new Selection Committee are approved by the Union Public Service Commission, the proceedings of the earlier Selection Committee become inoperative. No manner of continuity can, therefore, be imputed to the proceedings of the various Selection Committees. It is not the petitioner 's case that his name was ever brought into the select list by the Senior Selection Committee and approved by the Government of India, Ministry of Home Affairs, for appointment in the selection grade. If the petitioner was 'consciously ' passed over by the Senior Selection Committee or the Government of India, Ministry of Home Affairs, then there is no question of the applicability of the 'Next Below Rule '. Much stress was, however, laid on the letter of Sri R.N. Mohanti, Joint Secretary to the Government of Orissa, Political & Services Department, dated May 7, 1963, addressed to the petitioner in re 49 ply to his letter dated March 15, 1963 for the submission, that had remained in his parent cadre, he would have been promoted and drawn pay in the super time scale. It was urged that the petitioner should have been given pro forma promotion and the higher scale of pay in the super time grade under the 'Next Below Rule ' because his junior in his parent cadre had been promoted to such scale of pay or granted 'higher pay ', on personal basis to compensate for the financial loss suffered by him due to his retention in a lower post at the Centre. We are afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been 'considered ' in the normal course for appointment to the selection grade as well as to a super time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super time scale on account of his seniority on the basis of the 'Next Below Rule '. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee. In the result, the appeal fails and is dismissed. There shall be no order as to costs. N.V.K. Appeal dismissed.

Articles 32 and 136 When root of the grievance and the fruit of writ are not individual but collective courts power is one of affirmative structuring of redress to make it meaningful and socially relevant Decisional guidelines to be given. The State of Kerala appointed a Commission to recommend which sections of the people required special treatment under article 15(4) having regard to their social and educational conditions. That Commission recommended equitable allocation of seats on the bais of education backwardness of the Malabar area. Substantially founding itself on these recommendations the these recommendations the State Government evolved a formula, which by polling all applications for admission to the four medical colleges in the state one consolidated list was prepared and candidates were selected strictly according to the marks secured by them. This scheme having been struck down by the High Court, a fresh expert committee was appointed to examine the quo modo of admissions to medical colleges. The Government on the basis of these recommendations decided that seats available for the medical course might be distributed for the students of the two 1, Universities of Kerala and Calicut in the ratio of the candidates registered for the pre degree and B. Sc. course in them. In a writ petition under article 226 the High Court held that the scheme of selection for admission to the medical colleges on an assessment of merits of students drawn from different universities with no uniformity of standards is objectionable and the linkage of the division of seats with the registered student strength of the universities bears no nexus and is violative of article 14 of the Constitution. On the question of the validity of the scheme of selection for admission to the medical colleges. ^ HELD : 1. Current conditions warrant the classification of student community on the zonal basis not as a legitimation of endless perpetuation but as a transient panacea for a geo human hadicap which the State must actively strive to undo.[980E] 2.The principal of reservation with weightage for the geographical area of the Malabar district is approved.[980 G] 3 The reasoning of the High Court that there is such substantial difference in the pre degree courses and evaluations between the sister universities within the same State that the breach of article 14 by equal treatment of the marks un 975 equally secured by the examinees in the two Universities may be spelt out. Every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring vanial variances. Article 14 is not a voodoo which visits. with invalidation every executive or legislative fusion of things or categories where there are no pronoanced inequalities. Mathematical equality is not the touchstone of constitutionality. [983 E F] State of Jammu & Kashmir vs Triloki Nath Khosa & Anr. ; at 42 referred to. A large latitude is allowed in this area to the State to classify or declassify based on diverse considerations of relevant pragmatism and the judiciary should not "rush in" where the executive varily treads. [984 A] 5. Many colleges are run by the State or institutional managements where pre degree or degree courses are undertaken, The teachers move from one university jurisdiction to the other, the teaching material is inevitably of a like nature, the subjects taught must ordinarily be alike. The examiners are usually drawn from within the State or neighbouring States. Even the composition of the academic bodies in the two universities may have common members. The University Act themselves are substantially similar. To surmise discrimination from possibilities is alien to the forensic process in the absence of hand facts. Gross divergences exist amoung Universities affecting the quality of the teaching and the inaiking. the anomalies of grading and the absurdity of equating the end product on the blind assumption that the same marks mean the same excellence. But not glib surmises but solid facts supply the sinews of discriminatory inequality or equality. Some backward universities and colleges have degenerated into degree dealers bringing rapid discredit to Indian Academic status. [984 D F] 6. The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out Indeed. there may be differences among the colleges under the same University. among the examiners in the same University. Such fleeting factors or eohemeral differences cannot be the solid foundation for a substantial differentiation which is the necessary pre condition for quashing an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Art 14. [984 H 985 A] 7. The functional validation of the writ jurisdiction is an appropriate examination of the substantiality of the alleged disparity. [985 B] 8. The corner stone of classification adopted for medical admission. by the Government was University wise allocation. By itself. this approach had constitutional sanction. [986 C] D. N. Chanchala vs State of mysore & Ors. etc. [1971] Supp. SCR 608; relied on 9. The discriminatory vice,if University wise classification and consequential allocation of seats were resorted to, was pressed therein but repelled. The fundamental `educational realities and resultant resolution of the legal imbrogliro are instructively presented therein, which have special relevance to the instant case because the social facts, constitutional confrontations and administrative answers in the Kerala and Karnataka litigations are similar. [986 D, 986 H 987 A] 976 10.The injection of the University wise student strength is drawing the redherring across the trail an irrelevance that invalidates the scheme. There is no nexus between the registered student strength and the seats to be allotted. The fewer the colleges the fewer the pre degree or degree students. And so, the linkages of the division of seats with the registered student strength would make an irrational inroad into the University wise allocation. Such a formula would be a punishment for backwardness, not a promotion of the advancement. The discriminatory paring down based on unreason cannot be upheld. [990 G H] 11. Law is not unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government leaving it to the helpless Government caught in a crisis to make do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. In the instant case unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vice and granting the relief to the petitioner of admission to the medical colleges, the need for controlling its repercussions calls for judicial response. [991 H 992 A] 12. An incisive study of the exercise of the writ power in India may reveal that it limits its actions by quashing or nullifying orders proceeding on a violation of law, but stops short of a reconstruction whereby a valid scheme may replace a void project. This is symptomatic of an obsolescent aspect of the judicial process, its remedial shortcomings in practice and the need to innovate the means, to widen the base and to organise the reliefs so that the Court actualises social justice even as it inhibits injustice. [978 A B] 13. This community perspective of the justice system explains why the Court has resorted to certain unusual directions and has shaped the ultimate complex of orders in these proceedings in a self acting package. Chronic social disability cannot be amenable to instant administrative surgery and law shall not bury its head, ostrich fashion, in the sands of fiction and assume equality where the opposite is the reality. [978 C, 980 C] 14. The rule of law runs close to the rule of life and where socieal life, as between one part of the State and another, is the victim of die hard disparties, the constitutional mandate of equal justice under the law responds to it pragmatically and permits classification geared to eventual equalisation. The writ of this Court binds the parties on record who must abide by the directions issued necessitated by the exigency of the situation and the need to do justice. [993 D] 16. The court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong to the people. This commitment is the whet stone for doing justice in the wider context of social good. [993 E F] 17. Leaving the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady, confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the "adversary system" makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicual function, so desirable in the Third World remedial juris 977 prudence, transforms the courts ' power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary. This principle of affirmative action is within the court 's jurisdiction under Art 136 and article 32 and the present cases deserve its exercise. Decisional guidelines given.[994 B F]

Special Leave Petition No.9148 of 1980. From the Judgment and Order dated the 3rd September, 1980 of the High Court of Delhi in C.M. (N). No. 49 of 1974. Prithvi Raj and Chaman Lal Itorora for the Petitioner. I.D. Garg and K.B. Rohtagi for the Respondents. But in view of the growing tendency of litigants of by passing the normal remedy of an appeal or revision by moving the High Court with petitions under article 227 of the Constitution, we deem it necessary to give the reasons therefor. It appears that the property belonging to the surety Mohd. Salam comprised of a house situate at Katra Sheikh Chand, Lal Kuan, Delhi was sold by the Subordinate Judge, Delhi in execution of an ex parte decree in favour of Mohd. Mustaqim due to the failure of the judgment debtor Hakim Mazhar ud Din to satisfy the decree on May 24, 1972. On June 9, 1972 the surety made an 213 application under section 151 of the Code of Civil Procedure, 1908 without specifying whether it was under O.XXI,r. 90 The learned Subordinate Judge by his order dated June 10, 1972 treated the application to be under O.XXI, r. 89 and the surety opted to elect it as such and prayed for time to deposit the solatium equal to 5% of the purchase money for payment to the auction purchaser Chuni Lal, but failed to make such deposit the till death on July 22, 1972. At no stage of the proceedings did the surety assert that the decree had been satisfied out of Court, nor did he make an application under O.XXI, r. 2 for certification of adjustment. He died leaving behind him a son named Mohd. Karim and a daughter named Mst. Rabia Khatoon, both of whom were apparently settled in Pakistan, After his death, on August 11, 1972, the petitioner who is a total stranger to the estate of the deceased surety, made an application stating that his name be substituted as he was the grandnephew of the surety and also his heir and successor in interest under an alleged will executed by the surety on July 20, 1972 i.e. two days before his death. On the same day, there was an application moved by the decree holder stating that the surety had already made payment of the decretal amount and costs to him before the sale was held on May 24, 1972 and that full satisfaction of the decree may be recorded. The respondent, who is the auction purchaser, contested the claim of the petitioner and pleaded inter alia that the genuineness of the alleged will is open to question apart from its validity as it was affected by the doctrine of marz ul maut and that, in any event, the alleged adjustment could not affect his right or title to the property in dispute as an auction purchaser. The learned Subordinate Judge by his order dated November 23, 1972 held that there was no question of allowing the substitution of the name of the petitioner by the Court under its inherent powers. On December 15, 1972 the petitioner moved another application under s.151 of the Code for setting aside the sale on the ground that there was material irregularity in publishing and conducting the same and also to record satisfaction of the decree and set aside the sale. That application of his was disallowed by the learned Subordinate Judge by his order dated November 9, 1973 on the ground that his earlier order dated November 23, 1972 holding that the application made by the surety purporting to be under O.XXI, r.89 stood disposed of as he did not comply with the requirements of r.89, operated as res judicata, and no question of invocation of the inherent powers of the Court arose and further that the 214 application made by the petitioner treated as an application under O.XXI, r.89 was barred by limitation as it was filed beyond the period of 30 days prescribed by Art.127 of the First Schedule to the . Dissatisfied with the impugned orders passed by the learned Subordinate Judge, the petitioner moved the High Court under article 227 of the Constitution. The contention before the High Court was that there was fraud perpetrated by the decree holder in bringing the property in dispute to sale although there was full satisfaction of the decree by the surety before his death. The High Court instead of dismissing in limine the petition under Art.227 of the Constitution as not maintainable, declined to interfere with the impugned orders of the learned Subordinate Judge because it was satisfied that the application made by the petitioner construed as an application made under O.XXI, r.89 to set aside the sale was barred both by the principle of constructive res judicata and also by limitation inasmuch as it was governed by Art.127 of the First Schedule to the , We fail to see the propriety of the petition moved by the petitioner in the High Court under Art.227 of the Constitution. The rule is well established that there can be no certification of an adjustment between the decree holder and the judgment debtor under O.XXI, r.2 after an auction sale is held in a case where a third party 's interest intervenes. In such a case, the Court has no alternative but to confirm the sale under O.XXI, r.92 of the Code. In Nanhelal & Anr. vs Umrao Singh, the Judicial Committee of the Privy Council in dealing with o. XXI, r.2 of the Code held that an adjustment between the decree holder and the judgment debtor come to at any time before the confirmation of an execution sale cannot nullify the decree by taking away the very foundation of the Court 's power to execute the decree viz. the existence of a decree capable of execution. In dealing with the question, the Privy Council observed: "In the first place, 0.21, R.2, which provides for certification of an adjustment come to out of Court, clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment debtor 215 and the decree holder, and when no other interests have come into being. When once a sale has been effected, a third party 's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment debtor can get rid of a sale, which has been duly carried out, are these embodied in R.89, viz, by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent on the purchase money which goes to the purchaser as statutory compensation, and this remedy can only be pursued within 30 days of the sale: see article 166, Sch.1, Lim. Act, 1908. " The Privy Council further observed: "That this is so is clear from tho wording of R.92, which provides that in such a case (i.e. where the sale has been duly carried out), if no application is made under R.89, the Court shall make an order confirming the sale and thereupon the sale shall become absolute." The petition under Art.227 of the Constitution was wholly misconceived. An appeal lay from an order under O.XXI, r. 92 setting aside or refusing to set aside a sale, under O.XLIII, r. 1 (j) to the District Judge. That apart, the application made by the petitioner claiming to be the legal representative of the surety, the judgment debtor 's representative, on the one hand and the auction purchaser, the decree holder 's representative, on the other alleging that there had been a fraud perpetrated by the decree holder in causing the sale to be held, with a prayer for recording satisfaction of the decree under O,XXI,r.2, raised a question relating to the execution, discharge or satisfaction of the decree and therefore fell within the purview of section 47 which prior to February 1,1977 was appealable because then a decision under section 47 was deemed to be a decree under section 2(2) of the Code, and therefore the petitioner had the remedy of an appeal to the District Judge. Even if no appeal lay against the impugned orders of the learned subordinate Judge, the petitioner had the remedy of filing a revision before the High Court under s.115 of the Code. Upon any view of the matter, the High Court had no jurisdiction to interfere with the impugned orders passed by the learned Subordinate Judge, under article 227 of the Constitution. A mere wrong decision without anything 216 more is not enough to attract the jurisdiction of the High Court under article 227. The supervisory jurisdiction conferred on the High Courts udder article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. The special leave petition is accordingly dismissed. P.B.R. Petition dismissed.

The prosecution case against the appellant was that he, along with five workers migrated from Nepal and that at the time of occurrence all of them were working in Punjab as agricultural labourers. Out of a large sum of money earned by them as wages they spent a part and the balance was left with one of the five deceased. On the evening prior to the day of occurrence the appellant was found by the employer cooking food for himself and his companions but when he went to his field the following morning he noticed the five dead bodies of the co workers were smouldering in the pit of his tube well. Post mortem examination of the dead bodies revealed several ante mortem injuries, most of which were lacerated wounds. Prom that day onwards the apellant was found missing. The trial Court, accepting the circumstantial evidence, convicted and A sentenced the appellant to death. The High Court affirmed the conviction on three grounds: (i) since the money was not found on the person of the deceased with whom it was kept, the motive was theft; (ii) the appellant was last seen in the company of all the deceased and (iii) the appellant absconded thereafter to conceal his presence. Allowing the appeal, ^ HELD: It is impossible to believe that the crime was committed in the manner alleged by the prosecution or that the appellant could possibly have committed it in the circumstances alleged. [826 C D] In a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of Built. Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of a crime imputed to him. An a priori suspicion that the accused has committed 823 the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime. [826 G H] In the instant case the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed R by the appellant. Tho fact that the assailant robbed the victims of the mopey cannot necessarily lead to the conclusion that it was the appellant who robbed them of their money. That the appellant and his co workers were paid a fairly large sum of money was known to others apart from the appellant and his Companions. No part of the money was traced to the appellant and therefore be could not be connected with the crime. [825 C E] Assuming that the deceased were administered liquor, medical evidence did not know that tho liquor consumed would have induced such stupor verging upon hypnosis It is also incredible that the five persons done to death by a single individual were under such a heavy spell of sleep that none of them woke up when the other or others were attacked. [826 D F] The fact that the appellant was last seen in the company of the deceased and that he was not present at the place from which the dead bodies were recovered the next morning are equivocal circumstances on which it is hazardous to base the conviction. [827 D] The circumstance that the appellant absconded from the place of occurrence does not lead to the conclusion that he had made himself scarce in order to conceal his presence. If he was found by the team of investigating officers in Nepal going about openly, it is difficult to hold that he had absconded to Nepal. [825 G H]

N: Criminal Appeal No. 114 of 1979 From the Judgment and order dated the 28th March 1978 of the Delhi High Court in Criminal Misc. No. 399/78. Randhir Jain Appellant. The order of the Court was delivered by CHANDRACHUD, C.J. As long back as on August 1,1975 a Food Inspector purchased a sample of suji (Semolina) from the respondent accused, which was found to contain excessive moisture and ash. The learned Metropolitan Magistrate, Delhi acquitted the accused by his judgment dated July 19, 1977 on the ground that the Food Inspector did not send the required quantity of the adulterated article to the Public Analyst for analysis. The Rules required the i the Food Inspector to send 250 gms. Of suji for analysis, whereas he sent only 200 gms. The High Court of Delhi dismissed the revision application filed by the Municipal Corporation of Delhi summarily. The learned Metropolitan Magistrate is clearly wrong in the view taken by him, from which it must follow that the High Court was not justified in dismissing the revision application summarily. The fact that a lesser quantity than that prescribed by the Rules is sent for analysis cannot constitute an impediment in the conviction of a person accused of selling adulterated food, so long as the quantity sent for analysis is sufficient to enable the Analyst to make a satisfactory analysis according to accepted tests. We do not, how ever, propose to interfere with the order of acquittal since, this appeal was filed not so much for the purpose of securing the conviction of the accused but for the purpose of obtaining a decision from this Court on the question whether a conviction could be recorded under section 7 read with section 16 of the Prevention of Food Adulteration Act even if, a quantity smaller than that required by the Rules to be sent for analysis is sent for the purpose of analysis to the Public Analyst. That question was decided long 286 back in State of Kerala vs Alaserry Mohammed.(l) Therefore, though the view taken by the courts below is unsupportable, we do not propose to interfere with the ultimate order passed by them. The appeal is accordingly dismissed.

Prevention of Food Adulteration Rules requires the Food Inspector to send 250 gms of suji (semolina) for analysis. On August 1, 1975 a Food Inspector purchased a sample of 200 gms of suji from the respondent accused and sent the same to the Public Analyst for analysis. Though the report indicated that the sample was found to contain excessive moisture and ash, the Metro politan Magistrate, Delhi acquitted the accused by his judgment dated July 19, 1977 on the ground that the Food Inspector did not send the required quantity of the adulterated article for analysis. The High Court of Delhi dismissed the revision application filed by the Municipal Corporation. Hence the appeal by special leave. Dismissing the appeal, the Court, ^ HELD: The fact that a lesser quantity than that prescribed by the Rules is sent for analysis cannot constitute an impediment in the conviction of a person accused of selling adulterated food, so long as the quantity sent for analysis is sufficient to enable the Analyst to make a satisfactory analysis according to accepted tests. Therefore, a conviction could be recorded under section 7 read with section 16 of the Prevention of Food Adulteration Act. [285F G] State of Kerala V. Alaserry Mohammed followed.

ivil Appeal No. 2 189 of 1987. From the Judgment and order dated 21st January, 1985 of the Madhya Pradesh High Court in Misc. Petition No. 1657 of 1984. V.A. Bobde, and D.N. Mishra for the Appellant. 74 T.C. Sharma for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. This is an appeal against the judgment and order of the High Court of Madhya Pradesh which in accordance with the well settled principle of this Court as also the High Court held that in the absence of any statutory rule of executive memorandum or order laying down the rule for determination of seniority in a grade, the normal rule applicable would be to determine the seniority on the basis of length in service. Counsel for the appellant contends that in the instant case there were two rules being 12(b) and 12(c) of the M.P. Civil Services (General Conditions of Services) Rules 1961 governing the case. These rules read as follows: "(b). Promoted Government Servants: A promoted Government servant shall count his seniority from the date of his confirmation in the service to which he has been promoted and shall be placed in the gradation list immediately below the last confirmed member of that service but above all the probationers. Provided that where two or more promoted Government servants are confirmed with effect from the same date the appointing authority shall determine their inter se seniority in the service in which they are confirmed, with due regard to the order in which they were included in the merit list, if any prepared for determining their suitability for promotion, and their relative seniority in the lower service from which they have been promoted. (c) Officiating Government Servants: The inter se seniority of Government servants promoted to officiate in a higher service or a higher category of posts shall during the period of their officiation, be the same as that in . their substantive service or grade irrespective of the dates on which they began to officiate in the higher service or grade; Provided that 75 (i) If they were selected for officiation from a list in which A the names of Government servants considered suitable for trial in or promotion to the higher service or grade were arranged in order of merit. Their inter se seniority shall be determined in accordance with the order of merit in such list; (ii) the seniority of a permanent servant appointed to officiate in another service or post by transfer shall be determined adhoc by the appointing authority; Provided that the seniority proposed to be assigned to such Government servant shall be determined and intimated to him in the order of appointment; C (iii) where a permanent Government servant is reduced to a lower service, grade or category of posts, he shall rank in the gradation list of the latter service, grade or category of posts above all the other in that gradation list unless the authority ordering such reduction by a special order indicates a different position in the gradation list for such reduced Government servant, (iv) where an officiating Government servant is reverted to this substantive service or posts he shall revert to his position in that gradation list relating to his substantive appointment which he held before he was appointed to officiate in the other service or post." In the proper perspective these two rules do not apply in this matter. In that view of the matter we are of the opinion that the High Court was right. We are unable in this connection to sustain the reasoning and the view expressed by the learned Single Judge of the said High Court in Civil Misc. Petition No. 181 of 1983 Umeshnaryan Mishra & ors. vs The State of M. P. & ors. In the aforesaid view of the matter we are of the opinion that the High Court is right in dismissing the petition under appeal and the view it took was correct. In view of the short length of service of the appellant, if the appellant makes a representation, the respondent in the light of the principles of law and equity will consider such representation. The appeal is disposed of accordingly. S.L. Appeal disposed of.

This was an appeal against the judgment and order of the High Court of Madhya Pradesh, which in accordance with the well settled principle laid down by this Court as also the High Court, held that in the absence of any statutory rule or executive memorandum or order laying down the rule for determination of seniority in a grade, the normal rule applicable would be to determine the seniority on the basis of length of service. Disposing of the Appeal, the Court, HELD: Counsel for the appellant contended that there were two rules in the case being Rules 12 (b) and 12 (c) of the M.P. Civil Services (General Conditions of Services) Rules, 1961, which governed the case. In the proper perspective, these two rules did not apply in this case. The High Court was right in the view it took in the matter. This Court was unable to sustain the reasoning and view of the Single Judge of the Madhya Pradesh High Court in Umeshnarayan Mishra & ors. vs The State of M.P. & Ors. in Civil Misc. Petition No. 181 of 1983. [74C; 75F] In view of the short length of service of the appellant, if the appellant made a representation, the respondent would consider the same in the light of the principles of law and equity.

N: Criminal Appeal No. 234 of 1973. From the Judgment and Order dated 4.8.1972 of the Madras High Court in Criminal Appeal No. 23 of 1971. R.K. Garg, Gopal Singh and L.R. Singh for the Appellants. K.G. Bhagat, A.V. Rangam, Umanath Singh, V.C. Nagaraj and R.B. Misra for the Respondent. The Judgment of the Court was delivered by B.C. RAY, J. This appeal on special leave is directed against the Judgment and Order of the High Court of Judicature at Madras dated 4.8.1972 in Criminal Appeal No. 23 of 1971 whereby the appeal was dismissed and the conviction and sentences passed by the Court of Sessions, east Thanjavur Division at Nagapattinam against the accused nos. 1, 2, 12, 13, 17, 18, 19 and 20 were confirmed. The prosecution case is as follows: All the accused appellants are residents of various villages within Keevalur Police Station. The first accused is the leader of the Left Communist Party are also of the Harijan Kisans of five neighbouring villages. Accused nos. 17 and 18 are the leaders of the Left Communist Party at Keezha Venmani village. There were serious differences between the Mirasdars and the Harijan labourers regarding the fixation of wages for harvest. These troubles started in 1967 and the Kisans have been agitating for higher wages by taking processions and convening meetings. There was a settlement in 1967 whereby the Mannargudi agreement was made between the parties providing for additional half measure of paddy to the Harijan labourers. This settlement was enforced from January 1968, but in November 1968 the Harijan labourers demanded uniform wages of six measures of paddy per kalam of paddy harvested and in case this six measures of paddy was not paid, the labourers trespassed into the lands and illegally harvested paddy crops. This created the trouble as the local Harijan labourers refused to work at a low wage and demanded higher wages. There was the Paddy Producers Association having its offices in several villages. P.W. 1 Gopal Krishna Naidu was the President of 204 Paddy Producers Association of Nagai Taluk and P.W. 19 Ramu Plllai was the President of the Association at Irukkai and he deceased Packiriswami Pillai was a member of the Association. The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4 1/2 measures of paddy. The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy. On 25th December, 1968 Packiriswami Pillai, since deceased, alongwith other labourers of Irakkai came to harvest the paddy crops from the fields of the Mirasidar P.W. 15 at about 9 a.m. It appears that on apprehending trouble P.W. 15 sent Exhibit P. 9 to the Inspector at Keevalur Police Station and Exhibit P. 8 to the Vallvalam Police Station requesting for sending some police men so that harvesting of crops might be done peacefully. The harvesting of crops was over by 5.30 p.m. and each of the labourers were fed with Sambar Satham. Each of them were paid 4 1/2 measures of paddy per kalam. P.Ws. 25, 26 and one Rangayyan left immediately as they wanted to go to Thevur for seeing a picture. The seventeen Irukkai people started for home sometime thereafter. The Irukkai labourers reached the east west Harijan Street at about 7.30 p.m. P.Ws. 42 and 43 purchased betels in the shop of P.W. 30, Subramaniam, of the main road. There was moon light and electric light. There were bamboo clusters in the form of a hood on either side of the east west Harijan Street near the second electric lamp post from the west. At the east west Harijan Street, P.Ws. 31, 32, 34 to 44 saw a crowd of 10 to 15 persons standing. In that crowd PWs. 31, 32, 34 to 37 saw accused Nos. 1 and 2 armed with aruvals. Tile crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irukkai. Immediately, A l Gopal cried out, "Do not leave Irukkai people, cut them, beat them." A crowd of about 50 persons being armed with aruvals, sticks etc. came running towards the Irukkai people. P.Ws. 31, 32, 34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street. Accused Nos. 1 and 2 and some others in the crowd also lifted him by hands, legs and clothes. Then he was carried to some distance towards the east. At that time Packiriswami Pillai cried out that he was being cut by Gopal (A 1) and they were leaving him behind and running. P.Ws. 31, 32 and 34 to 37 saw the first accused cutting Packiriswamy Pillai with aruval on his neck and on his head. P.Ws. 31, 32, 347 35, 36 and 37 205 ran towards the Caste Hindu Street and ultimately entered into the house of P.W. 47. Another crowd of 50 60 persons armed with aruvals and sticks came from the south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their houses. On the same day at about 8.00 p.m. P.W. 79, Inspector of Police, Keevalur Police Station on getting information that some persons armed with lethal weapons were parading on the main road beyond Thevur and towards south, after requisitioning a vehicle (van) from Nagapattinam Police Station sent P.W. 72, the Head Constable with the van for road patrolling between Thevur and Killukudi. P.W. 72 with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P. W. 47 as well as collecting the injured P.Ws. 54 and 55 in the van came to the Keevalur Police Station, where P.W. 79 (Inspector of Police) recorded the statement of P.W. 54 who was lying seriously injured in the van and registered the same as Crime No. 326 of 1968 of Keevalur Police Station. He thereafter recorded the statements of P.W. 55 in the van and recorded the statements of other P.Ws. 34 to 37 in the Police Station. Thereafter P.W. 79 at about 11.45 p.m. left for Keezha Venmani and reached at about 12.00 mid night. He met P.W. 31 there. P.W. 79 then went to Nadu street alongwith P.W. 31 and found the dead body of Packiriswami Pillai kept leaning against a Coconut tree with multiple injuries. P. W. 79 recorded the statement of P. W. 31 and registered the same as Crime No. 328 of 1968. The learned Sessions Judge after duly weighing the evidences of P.Ws. found inter alia that there was electric light and also moon light at the time of the occurrence. P.Ws. 31, 32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Plllai by Gopal (A l). It was also held that the crying out by the deceased Packiriswami Pillai that Gopal (A 1) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A 1 Gopal at that moment. Moreover, the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws. at a close range and seeing the occurrence. There was also overwhelming evidence as to the presence of A 1 in the crowd. The learned Sessions Judge found accused No. 1 guilty of offence under section 302 I.P.C. and sentenced him to imprisonment for life. He also found the accused No. 1 alongwith accused Nos. 2, 13, 17 and 18 guilty of murder under s.148 I.P.C. and sentenced each of them to undergo rigorous 206 imprisonment for two years. Accused Nos. 1 and 2 were also held guilty of the offence under section 364 I.P.C. and sentenced each of them to undergo rigorous imprisonment for 5 years. All these sentences will run concurrently. Out of 22 accused, 14 of the accused were acquitted and 8 of them i.e. accused Nos. 1, 2, 12, 13, 17, 18, 19 and 20 were convicted under various offences and they were sentenced to suffer rigorous imprisonment for various terms. Against the aforesaid judgment and order of conviction, all the 8 accused persons failed Criminal Appeal No. 23 of 1971. The appeal was dismissed and the conviction of all the accused appellants for various offences and sentences of imprisonment awarded against each of them were confirmed. Mr. Garg, learned counsel, appearing only on behalf of the accused appellant No. 1 has submitted before this Court that he will argue in this appeal only on behalf of the accused appellant No. 1 Gopal and as regards accused appellant No. 2 he further submitted before us that the appellant No. 2 Ramayyan who was convicted under section 364 I. P. C. and sentenced to undergo rigorous imprisonment for five years may be granted exemption from undergoing the remaining term of the sentence. It has been firstly contended by Mr. Garg, learned counsel, that the statement of P.W. 54 Packiriswamy Poraiyar (exhibit P 11) which was recorded by P.W. 79 and registered in Crime No. 326 of 1968 did not mention about the attack on deceased Packiriswami Pillai or any Irukkai people. It has also been submitted that P.W. 72 (Head Constable) who collected the injured person P.Ws. 54, 55 and 34 to 37 in the van and took them to the Police Station at Keevalur also did not tell about the attack on the deceased Packiriswami Pillai. It has been, therefore, submitted that the statements of P.Ws. 34 to 37 were recorded not at the Police Station immediately after recording statement of P.W. 54 i.e. Exhibit P 11. It has also been submitted that the accused Gopal (A 1) who is well known to the Mirasdars has been falsely implicated at the instance of P.W. 1, who as stated by P.W. 72 came to the place where P.W. 72 was bringing in the injured persons in the van i.e. P.Ws. 54, 55 and 34 to 37 for bring them to the Police Station. This submission has no legs to stand upon. It has been held by both the courts below that the evidences of P.Ws. 34 to 37 were recorded by the Inspector, Keevalur Police Station (P.W. 79) as soon as they were brought to the Police 207 Station at about 10.30 a.m. All these witnesses have clearly stated in their depositions that they witnessed A 1 Inflict cutting injuries on the neck and head of Packiriswami Pillai after lifting him alongwith other accused and carrying him to the east of Harijan Street. The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occured before his house and as such in Exhibit P 11 there was only the reference to the said incident. It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him. Moreover all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running towards the house of P.W. 47. Therefore evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A 1 caused fatal cut injuries on the person of deceased Packiriswami Pillai. P.W. 65 Dr. Madan Gopal, Assistant Surgeon, Government Hospital, Nagapattinam, who conducted post mortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut was sufficient in the ordinary course of nature to cause death. The Doctor has also stated in his evidence that after the infliction of injury No. 1, the injured could have shouted out. There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated. Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injureis caused by A 1 on deceased Packiriswami Pillai. He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami. It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him. The non mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.W. 31. It has been tried to be submitted in this connection that the statements of these P.Ws. were recorded in plain sheet of paper instead of recording in diary form, and this raises suspician that the statements of the P.Ws. 34 to 37 were not recorded immediately after the recording of the statement of P.W. 54. This submission was also set at naught by the courts below by holding that P.W. 79 recorded the statements of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55. The mere recording of 208 statements in plain sheet instead of in diary form in these A circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P 11). It was submitted that had P.Ws. 31, 32 and 34 to 37 known about the attack on deceased Packiriswami Pillai and his being carried away, it was unlikely that they would not have informed P.W. 1, who came there as stated by P.W. 72 and P.W. 1 in that case would have taken further action in the matter with the help of P.W. 72. This submission has also no merit. It has been held by the court of appeal below that P.Ws. 31, 32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all. The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that time. In view of these evidences, the court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted. it was also pointed out by the court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at that time either in Crime No. 326 or in Crime No. 328 of 1968. It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case P.W. 72 made the above statement. Therefore, this submission is not sustainable. It was submitted by Mr. Garg that had P.Ws. 34 to 37 stated in their statements which were recorded by P.W. 72 at Keevalur Police Station about the attack on Packiriswami Pillai, then that statement would have been recorded separately and a separate crime number would have been given to it as was done in recording statement of P.W. 31 and registering it in Crime No. 32 of 1968. It was, therefore, suggested that P.Ws. 34 to 37 were examined by P.W. 79 only after recording statement of P.W. 31. This submission was also urged before the Court of appeal below and it was held that it was not improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P. W. 79 was not aware of the death of Packiriswamy Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him. P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same transaction. P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31. It was 209 rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31. It was rightly held by the Court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws. 34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case. No motive has been suggested against P.W. 79. It was lastly submitted before us by Mr. Garg that in view of the sentence already suffered by A l and A 2 this Court should remit the remaining period of their sentence. We are unable to accept this submission advanced by Mr. Garg. Mention may be made in this connection to the observations of this Court in State of Maharastra vs Mayer Hans George, A.I.R. , which are as follows: "It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle. " As we have already stated herein before that the accused 1 and 2 have been convicted by the courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt. There was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in sections 302 and 364 of the Indian Penal Code. Therefore, we are not inclined to interfere with the sentences passed by the Courts below. It is pertinent to mention here the observations made by this Court in Pritam Singh vs The State, A.I.R. [1950] S.C. 169, which are as follows: "It will not grant special leave to appeal under Article 136 (1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only 210 those points can be urged at the final hearing of A the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this court does not by special leave convert itself into a court to review evidence of a third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice." This decision has been relied upon and followed in a subsequent decision of this Court in Sadhu Singh Harnan Singh vs State of Pepsu, A.I.R. In the premise aforesaid, we do not find any infirmity for less any illegality or failure of justice which would impel us to interfere with the order of conviction and sentence concurrently arrived at by both the courts below. We, therefore, dismiss the appeal and confirm the convicFPJ tion and sentences passed on accused Nos. A l and A 2 as well as on other appellants. M.L.A. Appeal dismissed.

The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4 1/2 measures of paddy. The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy. On 25th December, 1968 one Packiriswami Pillai, since deceased, alongwith 17 other labourers of Irakkai village was returning home at about 5.30 P.M. after harvesting of crops from the fields of P.W.15. They reached the east west Harijan Street at about 7.30 P.M. mere was moon light and electric light. There, P.Ws. 31,32,34 to 44 saw a crowd of 10 to 15 persons standing. In that crowd P.Ws. 31,32,34 to 37 saw accused Nos.l and 2 armed with aruvals. The crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irakkai. Immediately, A l, Gopal cried out "Do not leave Irakkai people, cut them, beat them." P.Ws. 31,32,34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street. They also saw accused Nos. 1 and 2 and some others in the crowd lifting the deceased by hands, legs and clothes. Then he was carried to some distance towards the east. At that time Packiriswami Pillai cried out that he was being cut by Gopal (A l) and they were leaving him behind ant running. P.Ws. 31,32 and 34 to 37 saw the first accused cutting Packiriswami Pillai with aruval on his neck and on his head. P.Ws. 31,32, 34,35,36 and 37 ran towards the Caste Hindu Street and ultimately entered into the house of P.W.47. Another crowd of 50 60 persons armed with aruvals and sticks came from the 200 south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their house. On getting information at about 8.00 P.M., P.W.72, the Head Constable, with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P.W.47 as well as collecting the injured P.W.54 and 55 in the van came to the Keevalur Police Station where P.W.79 (Inspector of Police) recorded the statement of P.W.54 and registered the same as Crime No. 326 of 1968. He thereafter recorded the statements of P.W.55 and P.Ws. 34 to 37 in the Police Station. At about 11.45 P.M. P.W.79 left for Keezha Vanmani and met P.W.31 there. Then both of them went to Nadu Street and found the dead body of Packiriswami Pillai with multiple injuries. P.W.79 recorded the statement of P.W.31 and registered the same as Crime No. 328 of 1968. Out of 22 accused, the Sessions Judge acquitted 14 and convected 8, namely, accused Nos.1,2,12,13,17,18,19 and 20 under various offences and sentenced them to suffer rigorous imprisonment for various terms. Te Sessions Judge found the aforesaid accused guilty of various offences on the grounds (1) that there was electric light and also moon light at the time of the occurrence and that P.Ws. 31,32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Pillai by Gopal (A l); (2) that the crying out by the deceased Packiriswami Pillai that Gopal (A l) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A l, Gopal at that moment; (3) that the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws. at a close range and seeing the occurrence; and (4) that there was also overwhelming evidence as to the presence of A l in the crowd. The appeal of all the 8 accused persons filed before the High Court was dismissed. Dismissing the appeal to this Court, ^ HELD : 1. m ere is no infirmity far less any illegality or failure of justice which would impel the Supreme Court to interfere with the order of conviction and sentence con currently arrived at by both the courts below. [210 D] 2(i) P.Ws. 34 to 37 have clearly stated in their depositions that they witnessed A l inflict cutting injuries on the neck and heat of Packiriswami Pillai after lifting him along 201 with other accused and carrying him to the east of Harijan Street. The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occurred before his house and, as such, in Exhibit P 11 there was only the reference to the said incident. It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him. Moreover, all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running forwards the house of P.W. 47. Therefore, evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A l caused fatal cut injuries on the person of deceased Packiriswami Pillai. [207 A C] 2(ii) P.W. 65, Assistant Surgeon, Government Hospital, who conducted postmortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut were sufficient in the ordinary course of nature to cause death. The doctor has also stated in his evidence that after the infliction of injury No. 1 the injured could have shouted out. There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated. Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injuries caused by A 1 on deceased Packiriswami Pillai. He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami. It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him. The non mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.W. 31. [207 D F] 3(i) P.W. 79 recorded the statement of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55. The mere recording of Statements in plain sheet instead of in diary form in these circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P 11). [207 H; 208 A] 3(ii) P.Ws. 31,32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all. The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that 202 time. In view of these evidence, the Court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted. It was also pointed out by the Court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at about that time either in Crime No. 326 or in Crime No. 328 of 1968. It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case, P.W. 72 made the above statement. [208 C D] 4. It was not improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P.W. 79 was not aware of the death of Packiriswami Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him. P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same trans action. P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31. It was rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate Crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31. It was rightly held by the court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws. 34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case. No motive has been suggested against P.W. 79. [208 G H; 209 A B] 5. The accused 1 and 2 have been convicted by the Courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt. There was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in 88. 302 and 364 of the Indian Penal Code. Therefore, the Court is not inclined to interfere with the sentences passed by the Courts below. [209 E F] State of Maharastra vs Mayer Hans George, ; applied. Pritam Singh vs The State, ; and Sadhu Singh Harnam Singh vs state of Pepsu) A.I.R. 1954 S.C. 271 referred to.

Appeals Nos. 1164 and 1165 of 1967. Appeals from the judgment and order dated December 1, 1965 of the Madhya Pradesh High Court, Indore Bench in Misc. Petition Nos. 18 and 19 of 1964. M. section K. Sastri, M. N. Shroff for I. N. Shroff, for the appellant (in both the appeals). B. R. L. lyengar, R. A. Gupta and K. B. Rohatgi, for the respondent (in C. As. No. 1164 of 1967). P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent (in C. A. No. 1165 of 1967). The Judgment of the Court was delivered by Mitter, J. The State of Madhya Pradesh has come up in appeal to this Court from two orders of the State High Court allowing two writ petitions filed by the two respondents herein for quashing the orders of eviction made against them under Section 3 of the Madhya Pradesh Government Premises (Eviction) Act. The facts in Civil Appeal No. 1164 of 1967 are as follows. Many years back, a former Ruler of the Indian State of Jhabua in Central India had given a jagir to his mistress, Paswanji Smt. Navratanbai. Navratanbai had either purchased or constructed two houses on College Marg. According to the Writ Petition fled in the High Court the acquisition was out of her private funds. 'his was not however admitted in the return to the petition. The successor of the former Ruler Dilipsingh purported to forfeit the jagir in the year 1943. The order of forfeiture is not on record but is sought to be borne out by an order dated 1st April, 1948, evidently made in anticipation of the merger of the State in the Union of Madhya Bharat which took place on June 29, 1948. The order addressed to Paswanji Navratanbai ran : "In September 1943 your jagir was confiscated to the State and you were granted Rs. 100 per month by way of allowance vide Parwana No. 1735 dated 23 9 1943 and this amount was being paid to you on behalf of the Huzur from the civil list because such types of allowances etc. are paid from it. But now as new arrangements are being 409 made regarding the states of Malwa and there is likelihood of reduction in the percentage of the civil list, therefore, the aforesaid monthly allowance shall henceforth be paid to you every month from State, Treasury from generation to generation. You may reside in the two big houses of Khasgi during your lifetime in which you are residing at present. After your lifetime both these houses shall be taken in possession of the Huzur. You shall have no right to sell or mortgage or create any charge on these houses. " There is another Huzur order on record dated 30th March, 1948 purporting to declare a large number of immovable properties as the private property of the Ruler and the ruling family. Among the properties set out at the foot of the order are mentioned : "6. (e) All houses which are occupied by Bapu Ram singh. (f) All houses which are in the occupancy of Navratanbai". When the question of settling the list of private properties of the Rulers of the integrating Estates in Madhya Bharat came up before the Government of India, the Political and External Department of the Madhya Bharat Secretariat passed an order recording a ;decision regarding the settlement of private properties of the State of Jhabua. The memorandum dated July 25, 1949 of the Madhya Bharat Secretariat, Political and External Department, shows that each department concerned had to take action for handing over all the property to the Ruler concerned and to see that no property out of the properties belonging to the Ruler and/or the State before the formation of Madhya Bharat was left with the Ruler excepting the properties in the enclosed list. The relevant list,, for the Ruler of Jhabua did not include the properties occupied either by Bapu Ramsingh or Paswanji Navratanbai. Paswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Ruler of Jhabua and addressed a memorandum to the Raj Pramukh of Madhya Bharat Union for amendment of the inventory submitted by the said Ruler. No steps appear to have been taken to evict Navratanbai from the said premises in her lifetime. On 30th April 1962 the Executive Engineer District Dhar, submitted an application under Section 3 read with Section 4 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 for eviction of the respondents in Appeal No. 1164 of 1967 from the two properties formerly belonging to Navratanbai before the. Sub Divisional Officer Jhabua, Constituted the competent authority under the Act. An order of eviction made 410 by the Sub Divisional Officer was upheld in appeal to the, Collector. Shivkunwarbai, widow of late Bapu Gordhansinghji son of Navratanbai filed a writ petition in the High Court for quashing. the said order. Appeal No. 1164/1967 is from the said order. The facts in the other appeal i.e. 1165 of 1967 are similar to the facts just narrated. In this case the same former Ruler had granted a jagir to his son Ramsingh by his mistress Paswanji Bhagirathibai. The succeeding Ruler purported to forfeit the jagir and granted a monthly allowance of Rs. 100. An order similar to the one dated 30th March 1948 already mentioned was passed while the order of April 1, 1948 affected Ramsingh as it did Navratanbai in the other case. There was an order of eviction as in the other case followed by a writ petition to the High Court. The central question in these two appeals is, whether the State of Madhya Bharat ever became entitled to these properties in the facts and circumstances mentioned which justified its attempt to evict the respondents under the provisions of the Act of 1952. This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein in 1949. The fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Ruler as private property "were accepted as such" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State. There must be some positive evidence of such Act. It is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication. The records only show that out of the list of properties submitted by the Ruler, a certain number of them was treated by the Government of India as being his private properties. There was no finding with regard to the others that they appertained to the Ruler as distinct from his private property. As these properties originally belonged to the predecessors in interest of the respondent i.e. in C. A. 1166/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them. In order to succeed in the appeals the appellant must first establish that the properties had been confiscated by the Ex Ruler and had ceased to belong to Navratanbai or Bapu Ramsingh. The order of April 1, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type. On the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the 411 same. The declared that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re grant thereof for the donee 's lifetime. If the properties remained the property of Nawatanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the provides or that the same passed to the Union of Madhya Bharat ailed from the said Union to the State of Madhya Pradesh. When attempts are made to deprive a person of his lawful inheritance it must be shown by irreproch able evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject he former lawful possessor. There is no such evidence in this case. It follows that the properties, the subject matter of the two appeals, never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh. Section 3 of the Madhya Pradesh Premises (Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in un auhorised occupation lot any Government premises to vacate the same within 30 days of the date of the service of the notice in terms of the section. Section 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises. In order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises. As the State failed to establish this fact the question of eviction under the Act could never arise. In the result, the appeals are dismissed with costs. G.C. Appeals dismissed.

It is not possible to define with any precision the limitations of the powers conferred on the Supreme Court by article 136 of the Constitution. This is an overriding and exceptional power and should be exercised sparingly and with caution and only in special and extraordinary situation. Beyond this no set formula, or rule can stand in the way of or fetter the exercise of the power conferred on the Supreme Court under article 136 of the Constitution. Sufficient safeguard and guarantee for the exercise of this power lie in the trust reposed by the Constitution in the wisdom and good sense of judges of the Supreme Court. This power is not hedged in by technical hurdles of any kind when it is called in aid against any arbitrary adjudication or for advancing the cause of justice or for giving a fair deal to a litigant so that in justice may not be perpetrated or perpetuated. Conclusiveness or finality given to any decision by any domestic law cannot dater the Supreme Court from exercising the power conferred under article 136 of the Constitution. The powers given to the Income tax Officer under section 23(3) of the Indian Income tax Act, 1922, however wide, do not entitle him to base the assessment on pure guess without reference to any evidence or material. An assessment under 9. 23(3) of the Act cannot be made only on bare suspcion. An assessment so made without disclosing to the assessee the information supplied by the departmental representative and without giving any opportunity to the assessee to rebut the information so supplied and declining to take into consideration all materials which the assesses wanted to produce in support of his case constitutes a violation of the fundamental rules of justice and calls for the powers under article 136 of the Constitution. Seth Gurmukh Singh vs Commissioner of Income tax, Punjab (1944 I.T.R. 393) approved.

section 176, 177 and 253 of 1956; 34, 35, 51 53, 69, 70, 75, 94 & 137 of 1957 ; 34, 58, 72, 90, 92, 106, 109 & 115 of 1958. Petitions under Article 32 of the Constitution of India for. enforcement of Fundamental rights. C.B. Aggarwal and Naunit Lal, for the petitioner (In Petition No. 176 of 1956). Achhru Ram and Naunit Lal, for the petitioner (In Petition No. 177 of 56). Naunit Lal, for the petitioner (In Petitions Nos. 253/ 56; 34, 35, 51 53, 69, 70, 75, 94 and 137/57; 34, 58, 92, 106, 109 & 115/58). 750 Radhey Lal Aggarwal and A. G. Ratnaparkhi, for the petitioner (In Petition No. 90/58). H. N. Sanyal, Additional Solicitor General of India, S.M. Sikri, Advocate General for the State of Punjab, Gopal Singh and T. M. Sen, for respondent No. 1 (In Petition No. 176/56). S.M. Sikri, Advocate General for the State of Punjab, and T. M. Sen, for respondent No. 1 (In Petitions Nos. 177 & 253/56; 34, 35, 51 53, 69, 70, 75, 94 & 137/57; 34, 58, 72, 90, 92, 106, 109 & 115/58). R.S. Gheba, for respondent No. 3 (In Petition No. 90/58). Dipak Dutta Chowdhury, for respondent No. 3 (In Petition No. 176/56). Udai Bhan Chowdhury, for respondent No. 7 (In Petition No. 59/57) and respondent No. 3 (In Petition No. 70/57). Harnam Singh and Sadhu Singh, for the Interveners (In Petition No. 176/56). December 8. The Judgment of the Court was delivered by SINHA, J. These petitions under article 32 of the Constitution impugn the constitutionality of the Punjab Security of Land Tenure Act (Punj. X of 1953) (which will be referred to hereinafter as the Act), as amended by Act XI of 1955. The petitioners are land owners of the lands affected by the provisions of the impugned Act. The State of Punjab and its officers, besides persons claiming benefits under the Act, are the respondents in these several petitions. The impugned Act has a history which may shortly be set out. With a view to providing for the security of tenure to tenants, the Punjab Tenants (Security of Tenure) Ordinance IV of 1950, was promulgated with effect from May 13, 1950. That Ordinance was replaced by the Punjab Tenants (Security of Tenure) Act XII of 1950, which came into force on November 6, 1950, on the date on which it was first published in the Punjab Government Gazette. The Act prescribed a limit of one hundred standard acres of land (equivalent to two hundred ordinary acres) which could be 751 held by a land owner for his " self cultivation "; and it was termed" permissible limit " (section 2(3) ). Any landowner having land in excess of the " permissible limit was authorized by section 3 to select for " self cultivation land out of the entire area held by him in the State of. Punjab, as land owner, and reserve it for his own use to the extent of the " permissible limit ". This " right of reservation " had to be exercised, first, in respect of land in his self cultivation; and if the extent of such land fell short of the " permissible limit ", he could, under section 4, make up the deficiency by ejecting tenants under him in respect of such lands as fell within his reserved area. Section 5 fixed the minimum period of tenancy as four years, subject to certain exceptions set out in section 6. These were some of the salient features of the Act of 1950, which itself was amended by the Punjab Tenants (Security of Tenure) Act (Punj. V of 1951), which came into force on December 24, 1951. By the amending Act, the " permissible limit " was reduced to 50 standard acres equivalent to 100 ordinary acres, and the minimum period of tenancy was raised to five years. It also made provisions for preferential right of pre emption (section 12A), and conferred a right of purchase on the tenant in respect of land in his possession (section 12B), subject to certain exceptions(s. 12C). Another legislation in this series was the Prevention of Ejectment (Temporary Powers) Ordinance No. 1 of 1952, which came into force on June 11, 1952. Then, came the Punjab Security of Land Tenure Act (Punj. X of 1953), now impugned, which repealed the aforesaid Acts XII of 1950 and V of 1951. It came into force on April 15, 1953. This Act itself was amended by Act LVII of 1953 and Act XI of 1955. Though. this Act has undergone subsequent amendments in 1957 and 1958, we are not concerned with those amendments, because they came into existence after this Court was moved under article 32 of the Constitution. We are concerned with the state of the law as it stood after the amendment of 1955, aforesaid. Before dealing with the grounds of attack urged against the impugned Act, it is convenient to set out, 752 in a nut shell, the salient provisions of the Act, which have given rise to the present controversy, and which give an idea of the scope and nature of the legislation now under examination. The Act has a short Preamble, namely, " to provide for the security of land tenure and other incidental matters ". The Act further reduces the " permissible area " (section 2(3) ) in relation to a landlord or a tenant, to 30 standard acres equivalent to 60 ordinary acres, thus, releasing a larger area for re settlement of tenants ejected or to be ejected under the provisions of the Act. So to say, it creates a pool of "surplus area" (section 2(5 a)), meaning thereby the area other than the"reserved area"in excess of the "permissible area" as aforesaid. "Reserved area" means the area lawfully reserved by the landlord under the provisions of the two Acts aforesaid, which were repealed by the Act (section 2(4)). The definition of a tenant under the Act, includes a sub tenant and a self cultivating lessee (section 2(6)). As already indicated, a tenant also may be liable to be ejected from any area which he holds in any capacity whatever in excess of the " permissible area ". Section 10 A authorizes the State Government or any officer empowered by it in this behalf, to utilize any " surplus area " for re settlement of tenants ejected or to be ejected under the provisions of section 9(1). But a tenant inducted on to such " surplus area ", holds the land under the land owner, who, thus, becomes entitled to receipt of rent from the tenant. Section 12 lays down the maximum rent payable by a tenant. Section 17 recognizes the rights of certain tenants to pre empt sales or fore closure of land. Section 18, which formed the subject matter of the most vehement attack on behalf of the petitioners, confers upon the tenants of the description given in the several clauses of the Act, the right to purchase from the land owner the land held by them, subject to certain exceptions, and subject to the payment in a lump sum or in six monthly instalments not exceeding ten, of the purchase price to be determined in accordance with cls. (2) and (3) of section 18. Section 23 invalidates any decree or order of any. court or authority, or a notice 753 of ejectment, which is not consistent with the provisions of the Act. Thus, the Act seeks to limit the area which may be held by a land owner for the purpose of self cultivation, thereby, releasing " surplus area " which may be utilized for the purpose of resettling ejected tenants, and affording an opportunity to the tenant to become the land owner himself on payment of the purchase price which, if anything, would be less than the market value. It, thus, aims at creating what it calls a class of " small land owners " meaning thereby, holders of land not exceeding the " permis sible area " (section 2(2)). The utmost emphasis has been laid on self cultivation which means " cultivation by a land owner either personally or through his wife or children, or through such of his relations as may be prescribed, or under his supervision " (section 2(9) ). The arguments at the Bar, on behalf of the petitioners may be put under three main heads, namely, (1) that the Legislature had no legislative competence to enact the Act, (2) that the provisions of the Act contravene the petitioners ' fundamental rights enshrined in articles 14, 19(1)(f) and 31 of the Constitution, and (3) that certain specified provisions of the Act amount to unreasonable restrictions on the petitioners ' rights to hold and dispose of property. At the outset, it is necessary to deal with the question of legislative competence, which was raised on behalf of some of the petitioners, though not on behalf of all of them. This argument of want of legislative competence goes to the root of the impugned Act, and if it is well founded, no other question need be gone into. It has been argued that Entry 18 in List II of the Seventh Schedule to the Constitution, should not be read as authorizing the State Legislature to enact a law limiting the extent of the land to be held by a proprietor or a landowner. Entry 18 is in these words: " 18. Land, that is to say, rights in or over land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land improvement and agricultural loans; colonization. " 754 It will be noticed that the Entry read along with article 246(3) of the Constitution, has vested exclusive power in the State to make laws with respect to " rights in or over land tenures including the relation of landlord and tenant. . The provisions of the Act set out above, deal with the landlord 's rights in land in relation to his tenant, so as to modify the landlord 's rights in land, and correspondingly, to expand the tenant 's rights therein. Each of the expressions " rights in or over land " and " land tenures ", is comprehensive enough to take in measures of reforms of land tenures, limiting the extent of land in cultivating possession of the land owner, and thus, releasing larger areas of land to be made available for cultivation by tenants. Counsel for some of the petitioners who challenged the legislative competence of the State Legislature, were hard put to it to enunciate any easily appreciable grounds of attack against Entry 18 in List II of the Seventh Schedule. It was baldly argued that Entry 18 aforesaid, was not intended to authorize legislation which had the effect of limiting the area of land which could be directly held by a proprietor or a land owner. It is difficult to see why the amplitude of the words " rights in or over land " should be cut down in the way suggested in this argument. A similar argument was advanced in the case of The United Provinces vs Mst. Atiqa Begum (1). In that case, the United Provinces Regularization of Remissions Act, 1938 (U. P. XIV of 1938), was challenged. One of the main provisions of that Act had validated remission of rent. It had been argued that the United Provinces Legislature was not competent to legislate about the remission of rent, when the relevant words in Entry 21, relating to land in the Provincial List of the Seventh Schedule to the Constitution Act of 1935, were " collection of rents ". Entry 21 relating to " land " bad added certain words by way of explanation and illustration of the intention of the Constitution makers, ,so as to indicate that the word " land " was meant to be used in its widest connotation. A member of the (1)[1940] F.C.R. 110. 755 Full Bench of the Allahabad High Court, in his judgment which was the subject matter of the appeal to the Federal Court, had come to the conclusion that Item No. 21 aforesaid, including the words " collection of rents ", had not authorized the Provincial Legislature to validate remission of rent. That conclusion was not upheld by the Federal Court which held that remission of rent was a matter covered by Item No. 21, and it was, therefore, within the competence of the Provincial Legislature to enact the impugned Act; and Gwyer, C. J., in the course of his judgment observed that the Items in the several lists of the Seventh Schedule, should not be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary and subsidiary matters which could fairly ' and reasonably be said to be comprehended in it. The same Item 21 in List II (Provincial List) of the Seventh Schedule to the Constitution Act of 1935, came up for consideration before the Judicial Committee of the Privy Council on appeal from the Federal Court of India in Megh Raj vs Allah Rakhi (1), affirming the judgment of the Lahore High Court. In that case, the Punjab Restitution of Mortgaged Lands Act (Punj. IV of 1938) had been challenged as ultra vires. By that Act, the Legislature had provided for redemption of mortgages on terms much less onerous than the terms of the mortgage deeds. Their Lordships of the Judicial Committee of the Privy Council repelled the contention raised on behalf of the appellants that the words of Item No. 21, were not wide enough to comprehend the relationship of mortgagor and mortgagee in respect of agricultural land. Their Lordships observed that Item 21 aforesaid, forming a part, as it did, of the Constitution, should, on ordinary principles, receive the widest construction, unless, for some reasons, it is cut down either by the terms of that item itself, or by other parts of the Constitution, which have, naturally, to be read as a whole; and then proceeded to make the following very significant observations : (1) (1946) L.R. 74 I.A. 12. 756 " As to item 21, " land ", the governing word, is followed by the rest of the item, which goes on to say, 'that is to say '. These words introduce the most general concept ' rights in or over land '. Rights in land ' must include general rights like full ownership or leasehold or all such rights. Rights over land ' would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of expla nation or illustration, giving instances which may furnish a clue for particular matters: thus there are the words relation of landlord and tenant, and collection ' of rents ". Thus, their Lordships concluded that the Item 21 relating to land, would include mortgages as an incidental and ancillary subject. Another branch of the same argument was that Entry 18 could not cover the determination of the relation of landlord and tenant, which is envisaged by some of the provisions of the Act, particularly section 18, which has the effect of converting the tenant into a land owner himself, by virtue of the purchase. This argument is also disposed of by the judgment of the Federal Court in United Provinces vs Atiqa Begum (1). It was next contended that Entry 18 has got to be read with article 19(5), in order to determine the legislative competence in enacting the impugned statute. In other words, it was contended that cl. (5) of article 19 of the Constitution, is in the nature of a proviso to the Entry ; and that the Entry so read along with article 19(5), lays down the test of the legislative competence. This argument is easily disposed. of with reference to the provisions of article 31 A of the Constitution. If it is held that the provisions of the impugned statute lay down the law for the modification of rights in estates, as defined in sub article (2) of article 31A, none of the grounds of attack founded on any of the provi sions of articles 14, 19 or 31, can avail the petitioners. As will presently appear, the Act lays down provisions which are in the nature of modifications of rights in estates within the meaning of article 31A(1). That being (1) 757 so, article 19(5) is wholly out of the way in this case. In view of all these considerations, it must be held that there is no legal foundation for the contention that the impugned Act is beyond the legislative competence of the State Legislature. Having dealt with the question of legislative competence, we have to deal with the several contentions raised on behalf of the petitioners, with reference to the provisions of articles 14, 19 and 31 of the Constitution. On this part of the case, it has rightly been conceded on behalf of the petitioners that if the impugned Act comes within the purview of any of the clauses of article 31A, the law will be immune from attack on any of the grounds based on the provisions of articles 14, 19 and 31. But it has been argued that the provisions of article 31A(1)(a), which are admittedly the only portions of the Article, which are relevant to the present inquiry, are not attracted to the impugned Act. It has been conceded on behalf of the respondents that the Act does not provide for the acquisition by the State of any estate or of any rights in any estate. Hence, the crucial words which must govern this part of the controversy, are the words " the extinguishment or modification of any such rights "; that is to say, we have to determine whether or not the impugned Act provides for the extinguishment or modification of any rights in " estates ". article 31A(2) defines what the expression II estate " used in article 3 1 A means. According to that definition, " the expression " estate " shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or Muafi or other similar grant and in the States of Madras and Kerala, any janmam right". It is common ground that we have to turn to the definition of an estate, as contained in the Punjab Land Revenue Act XVII of 1887. Section 3(1) of that Act has the following definition: (1) " estate " means any area (a) for which a separate record of rights has been made; or 758 (b)which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed ; or (c)which the (State) Government may, by general rule or special order, declare to be an estate ". Clause (c) of the definition is out of the way, because it has not been claimed that the State Government has made any declaration within the meaning of that clause. Estate, therefore, for the purposes of the present controversy, means any area or which a separate record of rights has been made, or which has been separately assessed to land revenue (omitting the unnecessary words). In this connection, it is also necessary to refer to the definition of a holding in section 3(3) in the following terms: "(3) 'holding" means a share or portion of an estate held by one landowner or jointly by two or more landowners ". It was not controverted at the Bar that in Punjab, there are very few estates as defined in section 3(1), quoted above, in the sense that one single land owner is seized and possessed of an entire estate which is equated with a whole village. In other words, in Punjab, an estate and a village are inter changeable terms, and almost all villages are owned in parcels, as holdings by co sharers, most likely, descendants of the holder of a whole village which came to be divided amongst the co sharers, as a result of devolution of interest. The parties were also agreed that the impugned Act deals with holdings, as defined in the Land Revenue Act, or shares or portions thereof. The argument on behalf of the petitioners to get over the provisions of article 31A, is that the Act does not deal with any estate or any rights therein, but only with holdings or shares or portions thereof. This argument proceeds on the assumption that holdings are not any rights in an estate. If the petitioners are right in their contention that the immunity granted by article 31A of the Constitution, is available only in respect of entire estates and not portions of estates, then the argument on behalf of the respondents that the Act is saved by the 759 provisions of that Article fails in limine. If, on the other hand, it is held that article 31A applies not only to entire estates or any rights therein, but also to shares or portions of an estate or rights therein, then all the arguments advanced on behalf of the petitioners, founded on the provisions of Arts 14, 19 and 31, are thrown overboard. Therefore, it becomes necessary to consider the amplitude of the expression " any estate or of any rights therein " in article 31A(1)(a). Rights in an estate may be either quantitative or qualitative. That is to say, rights in an estate may be held by persons having different qualities of rights in lands constituting an estate, as a result of sub infeudation. Generally speaking and omitting all references to different kinds of land tenures prevailing in different parts of India, it may be said that at the apex of the pyramid, stands the State. Under the State, a large number of persons variously called proprietors, zamindars, malguzars, inamdars and jagirdars, etc., hold parcels of land, subject to the payment of land revenue designated as peshkash, quit rent or malguzari, etc., representing the Government demands by way of land tax out of the usufruct of the land constituting an estate, except where Government demands had been excused in whole or in part by way of reward for service rendered to the State in the past, or to be rendered in the future. An estate, thus, is an area of land which is a unit of revenue assessment, and which is separately entered in the Land Revenue Collector 's register of revenue paying or revenue free estates. A single estate, unless governed by the Rule of Primogeniture, would, in course of time, be hold by a number of persons in the same rights as co sharers in the estate. Those several co sharers are all jointly and severally liable for the payment of the Government demands, if any, though, by an arrangement with the Revenue Department, they may have had a distribution made of the total Government demands as payable in respect of aliquot portions of the estate. Generally speaking, in the first instance, each sharer in an estate is liable to pay his portion of the landrevenue, but if, for any reasons, the Government 760 demands cannot be realized from any defaulting share primarily liable for them, the entire estate, including the shares of those who may not be the defaulting proprietors, is liable to be sold or otherwise dealt with for the realization of those demands. Thus, the unity of assessment of land revenue in respect of the entire estate remains intact. In actual practice, the holder of each specified portion or share of an estate, holds his portion for his own exclusive use and occupation. Such a sharer in an estate in Punjab is known as the land owner of a " holding ". But such a holding still continues to be a portion or a share of the estate out of which it has been carved. Such a division of an estate is quantitative or a vertical division of an estate. But there may also be a horizontal or qualitative division of the lands in an estate, effected by the process of sub infeudation. Continuing the illustration of the pyramid, generally speaking, the lands in an estate may in their entirety or in portions, be let out to what, in Eastern India, are known as tenure holders, for example, patnidars, in areas covered by the Permanent Settlement. Tenure holders were persons who took lands of an estate not necessarily for the purpose of self cultivation, but also for settling tenants on the land, and realizing rents from them. These patnidars may have darpatnidars under them, and darpatnidars sepatnidars, and in this way, the sub infeudation went on. All these classes are included within the terms " tenure holders ", " sub proprietors " or " under proprietors ". The persons who are inducted on to the land for bringing it under their direct cultivation, are generally known in Eastern India as raiyats with rights of occupancy in the land held by them. But raiyats, in their turn, may have inducted tenants under them in respect of the whole or a portion of their holding. The tenant holding under a raiyat is known as an under raiyat, and an under raiyat may induct a tenant under himself, and he will be an under raiyat of the second degree. Thus, in each grade of holders of land, in the process of subinfeudation described above. the holder is a tenant under his superior holder, the landlord, and also the 761 landlord of the holder directly holding under him. Thus, in Eastern India, the interest of intermediaries between the proprietor of an " estate " at the top and the actual tiller of the soil at the bottom, is known as that of a " tenure holder ", and the interest of tenants other than tenure holders, is given the generic name of a " holding ". A holding in Eastern India, thus, indicates the interest of the actual tiller of the soilraiyat or under raiyat unlike the " holding " in Punjab where, as indicated above, its signifies the interest of the holder of a share in an estate. Thus, holdings in Punjab are vertical divisions of an estate; whereas in Eastern India, they represent a horizontal division, connoting a lesser quality of an estate in land than the interest of a tenure holder in his tenure, or of a land owner in his estate or portion of an estate. It is not necessarily true that there should be intermedia ries in every estate or a portion of an estate. Very often, the holder of an estate may be holding his entire estate directly in his possession by way of khudkasht, zeerat, kamath or neezjote, or it may be that the proprietor has only raiyats under him without the intermediation of tenure holders, and the raiyats may not have any under raiyats under them. The process of sub infeudation described above, naturally, varies with the size of the estate. It appears to be common ground in this case that in Punjab, an estate means the whole village, whereas in Eastern India, an estate may comprise a whole district or only a cluster of villages, or a single village, or even a part of a village. The larger the size of an estate, the greater the process of sub infeudation and vice versa. In Punjab, as there was no permanent settlement of Revenue as in Bengal, Bihar, Orissa and other parts of Eastern India, the unit of revenue assessment has been the village. Thus, a holding in Punjab means a portion of a village either big or small. That portion may be in the direct possession of the landowner himself, or he may have inducted tenants on a portion or the whole of his holding. The interest of the tenant in Punjab, appears to have been a precarious tenure, even more precari ous than that of an under raiyat in Eastern India. The 96 762 Punjab Legislature, realising that the interest of a tenant was much too precarious for him to invest his available labour and capital to the fullest extent so as to raise the maximum quality and quantity of money crops or other crops, naturally, in the interest of the community as a whole, and in implementation of the Directive Principles of State Policy, thought of granting longer tenures, and as we have seen above, the period has been progressively increased until we arrive at the stage of the legislation now impugned, which proposes to create a large body of small land owners who have a comparatively larger stake in the land, and consequently, have greater impetus to invest their labour and capital with a view to raising the maximum usufruct out of the land in their possession. Keeping in view the background of the summary of land tenures in Punjab and elsewhere, we have to construe the amplitude of the crucial words " any estate or of any rights therein " in article 31A (1) (a). Soon after the coming into effect of the Constitution, the different States in India embarked upon a scheme of legislation for reforming the system of land holding, so as (1) to eliminate the intermediaries, that is to say, those who hold interest in land in between the State at the apex and the actual tillers of the soil in other words, to abolish the class of rent receivers, and (2) to create a large body of small landholders who have a permanent stake in the land, and who are, therefore, interested in making the best use of it. As the connotation of the term " estate " was different in different parts of the country, the expression " estate " described in el. (2) of article 31 A, has been so broadly defined as to cover all estates in the country, and to cover all possible kinds of rights in estates, as shown by sub cl. (b) of cl. (2) of article 31A, which is in these terms: shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder (raiyat, under raiyat) or other intermediary and any rights or privileges in respect of land revenue. " The expression " rights " in relation to an estate has been given an all inclusive meaning, comprising both 763 what we have called, for the sake of brevity, the " horizontal " and " vertical " divisions of an estate. A proprietor in an estate may be the proprietor holding the entire interest in a single estate, or only a co sharer proprietor. The provisions aforesaid of article 31A, bearing on the construction of the expression " estate " or "rights" in an estate, have been deliberately made as wide as they could be, in order to take in all kinds of rights quantitative and qualitative in an area co extensive with an estate or only a portion thereof. But it has been suggested that the several interests indicated in sub cl. (b), quoted above, have been used with reference to the area of an entire estate, but knowing as we do, that a raiyat 's or an under raiyat 's holding generally is not co extensive with the area of an entire estate but only small portions thereof, it would, in our opinion, be unreasonable to hold that the makers of the Constitution were using the expression " estate " or " rights " in an estate, in such a restricted sense. Keeping in view the fact that article 31A was enacted by two successive amendments one in 1951 (First Amendment), and the second in 1955 (Fourth Amendment) with retrospective effect, in order to save legislation effecting agrarian reforms, we have every reason hold that those expressions have been used in their widest amplitude, consistent with the purpose behind those amendments. A piece of validating enactment purposely introduced into the Constitution with a view to saving that kind of legislation from attacks on the ground of constitutional invalidity, based on articles 14, 19 and 31, should not be construed in a narrow sense. On the other hand, such a constitutional enactment should be given its fullest and widest effect, consistently with the purpose behind the enactment, provided, however, that such a construction does not involve any violence to the language actually used. Another branch of the same argument was that if the makers of the Constitution intended to include within the purview of article 31A, not only entire estates but also portions thereof, nothing would have been easier than to say so in terms, and that in the absence of any specific mention of " portions of an estate 764 we should not read that article as covering " portions of an estate " also. In our opinion, there is no substance in this contention, because they must be attributed full knowledge of the legal maxim that " the greater contains the less " Omne Majus continet in se minus. In this connection, our attention was invited to the decision of a Full Bench of the Punjab High Court in the case of State of Punjab vs section Kehar Singh (1), to the effect that a holding being a part of an estate, was not within the purview of article 31A of the Constitution. In this connection, it is necessary to state the conflict of views in that High Court itself. In the case of Bhagirath Ram Chand vs State of Punjab (2), the validity of the very Act impugned before us, was challenged on grounds based upon Articles 14, 19 and 31 of the Constitution. The learned Judges constituting the Full Bench, unanimously held that the impugned Act did not infringe those provisions of the Constitution, and the restrictions on the right of land holding, imposed by the Act, were reasonable, and that the classification did not exceed the permissible limit. But they also held that the Act was saved by article 31A of the Constitution, which applied equally to an entire estate or to a portion thereof. Besides giving other reasons, which may not bear close scrutiny, they made specific reference to the doctrine that the whole includes the part. Thus, the Full Bench specifically held that article 31A of the Constitution applied equally to portions of estates also. This decision of the Full Bench was followed by a Division Bench of the same High Court, consisting of Bhandari, C. J., and Dulat, J., in the case of Hukam Singh vs The State of Punjab (3). That Bench was concerned with the provisions of another Act Punjab Village Common Lands (Regulation) Act, 1954. In that case, the Division Bench, naturally, followed the decision of the Full Bench in so far as it had ruled that the I whole ' includes the part, and that where an Act provides for rights in an estate, it provides for rights in a part of an estate also. The later Full (1) (1958) 60 P.L.R 461. (2) A.I.R. 1954 Pun. (3) 765 Bench case referred to above, was decided by three Judges, including Bhandari, C. J., who agreed with the judgment of the Court delivered by Grover, J. Perhaps, the better course would have been to constitute a larger Bench, when it was found that a Full Bench of three Judges, was inclined to take a view contrary to that of another Full Bench of equal strength. Such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed under the embarrassment of preferring one view to another, both equally binding upon them. In our opinion, the view taken by the earlier Full Bench is the correct one. The learned Chief Justice who was a party to both the conflicting views on the same question, has not indicated his own reasons for changing his view. The Full Bench has accepted the force of the legal maxim that the greater contains the less, referred to above, but has not, it must be said with all respect, given any good reasons for departing from that well established maxim. The judgment of the Full Bench on this part of the case is based entirely upon the definition of an estate, as contained in the Punjab Land Revenue Act, set out above. It has not stopped to consider the further question why a holding, which is a share or a portion of an estate, as defined in the Punjab Act, should not partake of the characteristics of an estate. Keeping in view the background of the legislative history and the objective of the legislation, is there any rational reason for holding that the makers of the Constitution thought of abolishing only intermediaries in respect of an area constituting one entire estate but not of a portion thereof ? On the other hand, as indicated above, they have used the expression " estate" in an all inclusive sense. They have not stopped at that; they have also added the words " or any rights therein ". The expression " rights " in relation to an estate again has been used in a very comprehensive sense of including not only the interests of proprietors or sub proprietors but also of lower grade tenants, like raiyats or under raiyats, and then they added, by way of further emphasizing their intention, the expression " other intermediary ", thus, clearly showing that 766 the enumeration of intermediaries was only illustrative and not exhaustive. If the makers of the Constitution have, thus, shown their intention of saving all laws of agrarian reform, dealing with the rights of intermediaries, whatever their denomination may be, in our opinion, no good reasons have been adduced in support of the view that portions or shares in an estate are not within the sweep of the expression " or any rights therein ". A recent decision of this Court in the case of Ram Narain Nedhi vs The State of Bombay (1) dealt with the constitutionality of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, which contains similar provisions with a view to doing away with intermediaries, and establishing direct relationship between the State and tillers of the soil. In that case also, the contention had been raised that the expression " estate " had reference to only alienated lands and not to unalienated lands, and this Court was invited to limit the meaning of the expression in the narrower sense. This Court repelled that contention in these words: the context of the Code is thus clear and unambiguous as comprising both the types of lands, there is no reason why a narrower construction as suggested by the petitioners should be put upon the expression " estate. . . . Even if there was any ambiguity in the expression, the wider significance should be adopted in the context of the objectives of the Act as stated above. " These observations apply with full force to the contention raised on behalf of the petitioners in the present cases also. Another branch of the same argument as to why the provisions of article 31A do not apply to the Act, is that the Act did not have the effect of either extinguishing or modifying any rights in any estate, assuming that the expression " estate " includes reference also to parts of an estate. In this connection, it is contended that the provisions of the Act impugned in these cases, did not amount to the extinguishment of (1) [1959] SUPP. (1) S.C.R. 489. 767 the interest of the land owners in estates or portions thereof, and that what the Act did was to transfer some of the rights of the land owners to their tenants. In this connection, reliance was placed on the observations of this Court in the case of Thakur Raghubir Singh vs Court of Wards, Ajmer (1), where Mahajan, J. (as he then was, speaking for the Court, observed that the expressions " extinguishment " and " modification " used in article 31A of the Constitution, meant extinguishment or modification respectively of a proprietary right in an estate, and should not include, within their ambit, a mere suspension of the right of management of an estate for a time definite or indefinite. Those observations must be strictly limited to the facts of that case, and cannot possibly be extended to the provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land Records Act, XLII of 1950, which was the subject matter of the challenge in the case then before this Court. This Court held, on a construction of the provisions of that Act, that they only suspended the right of management but did not amount to any extinguishment or modification of any proprietary rights in an estate. The provisions of the Act then under consideration of this Court, have absolutely no resemblance to those of the Act now before us, and it is impossible to put a similar interpretation on these provisions. In the recent decision of this Court (not yet reported*), this Court had been invited to apply the observations of this Court referred to above, to the provisions of the Bombay Act. It was pointed out in that case that those observations of Mahajan, J. (as he then was), must be read as limited to an Act which only brings about a suspension of the right of management of an estate, and could not be extended to the provisions of an Act which either extinguishes or modifies certain rights of a proprietor in an estate or a portion thereof. In this connection, it was further argued that extin guishment of a right, does not mean substitution of (1) ; , 1055, 1056. Since reported as Sri Ram Narain Modhi vs The State of Bombay, [1959] SUPP (1) S.C.R. 489. 768 another person in that right, but total annihilation of that right. In our opinion, it is not necessary to discuss this rather metaphysical argument, because, in our opinion, it is enough for the purpose of this case to bold that the provisions of the Act, amount to modification of the landowner 's rights in the lands comprised in his " estate " or " holding ". The Act modifies the land owner 's substantive rights, particularly, in three respects, as indicated above, namely, (1) it modifies his right of settling his lands on any terms and to anyone he chooses; (2) it modifies, if it does not altogether extinguish, his right to cultivate the " surplus area" as understood under the Act; and (3) it modifies his right of transfer in so far as it obliges him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons, in accordance with the provisions of the Act, set out above. Thus, there cannot be the least doubt that the provisions of the Act, very substantially modi the land owner 's rights to hold and dispose of his property estate or a portion thereof. It is, therefore clear that the provisions of article 31A save the impugned Act from any attack based on the provisions of articles 14, 19 and 31 of the Constitution. That being so, it is not necessary to consider the specific provisions of the Act, which, it was contended, were unreasonable restrictions on the land owner 's rights to enjoy his property, or whether he had been unduly discriminated against,, or whether the compensation,if any, provided for under the Act, was illusory or, at any rate, inadequate. Those grounds of attack are not available to the petitioners. In the result, all these petitions are dismissed with costs, the State of Punjab and its officers being entitled to only one set of hearing fees in all the petitions. Petitions dismissed.

The appellant was elected on 18.8.1986 as one of the Directors of the District Central Co operative Bank, Chandrapur, Maharashtra from the Brehmapuri Agricultural Sales and Purchase Society. On 8.1.1987 the District Deputy Registrar of the Co operative Societies, Chandrapur issued a notice to him under section 78(1) of the Act to show cause as to why he should not be removed from the Board of Directors of the Bank and from the Executive Committees of other Co operative Societies in the District for having remained in arrears of the loan instalments due from him on the date of filing of nomination papers for election to the post of Director of the Bank and thereafter till 21.10.1986 when he actually repaid the dues thereby incurring the disqualification as contemplated by section 73FF of the Act. The appellant showed cause and by additional reply took the stand that he had not committed any default after the amended section 73FF came into existence. This was rejected and by Order dated 7.12.1987 passed by the Assistant Registrar Co operative Societies, Chandrapur he was removed from the post of Director holding him to be a defaulter under section 73FF of the Act. Appeal against that order was dismissed by the District Joint Registrar and his revision therefrom made under section 154 of the Act too met the same fate at the hands of the Cooperative & Textile Department, State of Maharashtra, Bombay Dismissing his Writ Petition filed thereafter, the High Court of Bombay held that when the appellant contested the election he was a defaulter and even though he had paid all the debts on 21.10.1986 yet he could not be absolved of the disqualification on the day he contested the election. In the appeal before this Court it was argued on behalf of the appellant that the impugned order of the Assistant Registrar removing him from the Board of Directors was without jurisdiction in as much as 676 the Act prescribes separate procedure for calling in question the election and that procedure having not been followed the Assistant Registrar could not have acted under section 78(1) of the Act; that the entire loan having been repaid before the issue of notice under section 78(1) he was not a defaulter in presenti and lastly even assuming that the disqualification on the ground of default is common both for election and continuation as Director in the Committee, the special provision for calling in question an election mut prevail over section 78. Rejecting the contentions and dismissing the appeal, the Court. HELD: If the impugned order is found to have been passed by way of setting aside the election of the appellant, it would be bad as his election had not been called in question in accordance with the procedure prescribed by the Act. However, the notice has ex facie been issued under section 78 of the Act. No doubt there is reference to his having been a defaulter and disqualified for being elected but it has been addressed to him as Director on the Board of Directors. It also refers to his being disqualified "to be elected or to continue as Director or Executive Committee member of the Executive Committee" under section 73FF of the Act and about ceasing to be a Director by committing default. From the above contents, there is no room for holding that the appellant 's election has been set aside by the impugned order. On the other hand, the emphasis is on his being disqualified to continue as Director or ceasing to be Director on account of his having committed default. [682F 683A] The day an instalment falls due on its due date, failure to pay results in default and this default continues day after day until it is repaid. The appellant can be said to have made default on the first day of his directorship and on every subsequent day till instalments were paid. The appellant was a defaulter immediately on the coming into force of section 73FF and so long that default continued he must be taken to have made default until repayment. [683G 684A] Sub section (2) of Section 73FF says that a member who has incurred any disqualification under sub section (1) shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant. Therefore, the moment the appellant after election continued to be in default and must be taken to have made default, stood disqualified and thereby ceased to be a member of the Committee and his seat deemed to have fallen vacant. In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a director and his seat already fell vacant. In Keshaorao 677 Narayanrao Patil vs District Deputy Registrar, reported in , Bombay High Court held that section 73FF(2) did not operate automatically and that passing of an order of removal was necessary. This has to be interpreted in the context of the provisions in the section. [684B D] Hundraj Kanayalal Sajnani vs Union of India, A.I.R. at 1121; Zaverbhai Amaidas vs The State of Bombay, [1955] 1 S.C.R. 799; Maharashtra State Board of Education vs Paritosh Sheoth, ; , distinguished. Keshaorao Narayanrao Patil vs District Deputy Registrar, , approved.

N: Criminal Appeal No. 305,306 & 307 of 1988. From the Judgment and Order dated 2nd/3rd July, 1986 of the High Court of Bombay in Criminal application No. 1127, 527 and 866 of 1985. S.B. Bhasme, M.C. Bhandare, Dilip Pillai, P.K. Pillai, T. Sridharan and Amit Desai for the appellants. V.M. Tarkunde, R.K. Garg, M.S. Rao, Y.R. Naik, Rajadyaka, S.B. Jaisingha, Ms. R. Jethmalani, C. Ramesh and Ashok Sharma for the Respondents. V.S. Desai, G.B. Sathe, A.M. Khanwilkar and A.S. Bhasme for the State of Maharashtra. The Judgment of the Court was delivered by RANGANATH MISRA, J. Special Leave granted in each of the three cases. A common questions arising for consideration in these appeals is as to the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public Prosecutors under sections 24 and 25 respectively of the Code of Criminal Procedure, 1973 at the cost of the private complainants. In Criminal Appeal arising out of S.L.P. (Crl) No. 3027 of 1986 the appellants are facing prosecution for charges of forgery and cheating before the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay. On 4th of December, 1979 the Government of Maharashtra appointed as Assistant Public Prosecutor for conducting the said case for the prosecution in exercise of powers under section 25(1) of the Code of Criminal Procedure. In the connected Criminal Appeal arising out of S.L.P. (Crl.) No. 3048 of 1986 the appellant is accused of an offence punishable under section 409 read with sections 120 B and 34 of the Indian Penal Code and is facing his trial in the 871 court of the same Metropolitan Magistrate. On 3rd of August, 1983, the State of Maharashtra in exercise of powers under section 24(8) of the Code of Criminal Procedure has appointed two advocates as Special Public Prosecutors for conducting the prosecution. In the other connected Criminal Appeal arising out of S.L.P. (Crl.) No, 703 of 1987 the appellants are being tried for offences punishable under sections 506(ii), 337, 354, 504, 498 A, read with sections 114 and 34 of the Indian Penal Code in the Court of the same Metropolitan Magistrate, 40th Court, Girgaum, Bombay. By notifications dated 4th December, 1979, 3rd August, 1983 and 17th July, 1985, the Government of Maharashtra in exercise of powers under section 24(8) of the Code appointed two advocates as Special Public Prosecutor for conducting the prosecution. These notifications were assailed in a group of writ petitions before the Bombay High Court and a Division Bench of that Court by a common judgment dated 2nd July, 1986, rejected the writ petitions and upheld the appointments. That common judgment of the High Court is assailed in this batch of appeals. Since common questions have been raised and argued at a time, this judgment shall dispose of all the three appeals. The impugned appointments have been made either in exercise of powers under section 24 or section 25 of the Code of Criminal Procedure of 1973. Section 24 deals with Public Prosecutors while section 25 makes provisions for Assistant Public Prosecutions. While sub section (1) of section 24 enables the Central Government or the State Government to appoint a Public Prosecutor or an Additional Public Prosecutor for the purpose of High Courts, sub section (2) makes provision for appointment of one or more Public Prosecutors for the purposes of conducting of cases in any district or local area and sub sections 4, 5, 6 and 7 deal with the modality of such appointments, sub section (8) provides: "The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. " Section 25 deals with the appointment of Assistant Public Prosecutors Sub section (1) provides: "The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of magistrates." 872 The provisions contained in these two sections in the Code of 1973 correspond to section 492 of the old Code which dealt with the appointment of Public Prosecutors. Challenge by the appellants to the notifications in question is on the ground that the Code confers a special status on the Public Prosecutor; whenever it has been considered necessary, law has prescribed the interest to be represented by the Public Prosecutor and it would not be in proper exercise of power by the State Government to make appointment of a Special Public Prosecutor to support a private transaction and provide for his remuneration from private source. The High Court referred to some decisions of the different Courts supporting and opposing the view canvassed before it and came to hold: "According to us, the conduct of prosecution by a lawyer appointed and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor. To accept such a proposition is to invalidate all private prosecutions. " Negativating the plea advanced by the appellants, the High Court has further held: "For the reasons given above, with respect, it is not possible for us to agree that a pleader engaged by a private person is a de facto complainant and cannot be expected to be as impartial as a pleader appointed by the State to conduct public prosecution. On the other hand, we are of the view that as stated earlier, permission to engage an advocate should be given freely to the complainant. The complainant has as much a right as the accused to represent his case effectively before the court. " The High Court also negatived the challenge against the appointment of the Assistant Public Prosecutors under section 25 by holding: "Hence the absence of a provision such as section 24(8) will not bar appointment of an Assistant Public Prosecutor specially to conduct a case or class of cases. " While dealing with the matter at a different place in the judgment the High Court observed: 873 "But apart from this, we are of the view that guidelines or no guidelines, whenever there is a request made by a private party to engage an advocate of his choice to be paid for by him, the request should be granted as a rule. The complainant in such cases is either a victim of the offence or is related to the victim or otherwise an aggrieved person. He has a right to be heard and vindicated. As stated earlier, the right to be heard implies a right to be effectively represented at the hearing of the case. He has therefore a right to engage an advocate of his choice. There is therefore no reason why the State should refuse him the permission to conduct the prosecution with the help of his advocate. . " Appellant 's counsel have challenged these conclusions of the High Court. Under the Criminal Procedure Code, the Public Prosecutor has a special status, and his is a statutory appointment. Under some of the provisions made in the Code, he receives special recognition. Section 2(u) of the Code defines the Public Prosecutor. Sections 199(2), 225, 301(1), 301(2), 302, 308, 321, 377 and 378 are some of the provisions in the Code which confer a special position upon the Public Prosecutor. From the spirit contained in the scheme of the Criminal Procedure Code it is clear that it is the duty of the Public Prosecutor to support prosecutions initiated by the State. Trial before a court of session has to be conducted by the Public Prosecutor as required under section 225 of the Code. Cases instituted on a police report are intended also to be handled by a Public Prosecutor. Cases instituted on a complaint, however, stand on a different footing and the complainant has choice of his own counsel. A set of rules known as Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984 made in exercise of powers conferred by proviso to Article 309 read with Article 165 of the Constitution have been placed before us in course of the hearing. Chapter III of those rules lays down qualifications of the Government Pleader and Public Prosecutor while Chapter IV prescribes the duties of the Public Prosecutor. Another set of rules known as The Rules for the Conduct of the Legal Affairs of the Government, 1984, which appears to be administrative in character, was also placed before us. Chapter III of these Rules provides for Special Counsel and Special Public Prosecutors and Rule 22 thereof provides: "If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of 874 its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the Remembrancer of Legal Affairs may, after considering such case on merits, appoint such advocate for the particular case or cases. " Appellant 's counsel challenged the validity of Rule 22 and contended that such a Rule is contrary to the spirit of the Code of Criminal Procedure and this rule affects the special status conferred on the Public Prosecutor and would cause prejudice to that public office. The office of the Public Prosecutor is a public one. A learned Single Judge of the Delhi High Court in K.C. Sood vs S.C. Gudimani, [1981] Crl. L.J. Vol. II, 1779 rightly held that the Public Prosecutor, the Additional Public Prosecutor and the Assistant Public Prosecutor hold an office. The learned Judge said: "It is public office of trust and therefore like any other public office, is susceptible to misuse and corruption and if not properly insulated. It is an office of responsibility more important than many others because the holder is required to prosecute with detachment on the one hand and yet with vigour on the other. When advocates are recruited to these offices, they have certain professional and official obligations and privileges. Some State Governments have appropriately made it an express term of their appointment that they shall not accept any brief in criminal matters and shall not even in civil matters appears in any case in which the interests of the State appear to be involved. " Similar observations were made by another learned Single Judge in the case of P.G. Narayanankutty vs State of Kerala and Ors., [1982] Crl. L.J. Vol. 88, 2085. In this case, Bhat, J., of the Kerala High Court pointed out: "Special Public Prosecutor cannot be appointed with a view to secure convictions at all costs. Special Public Prosecutor could be appointed only when public interest demands it and not to vindicate the grievances of a private person, such as close relation of the deceased. In order that he discharges his duties properly, he should look to the State for remuneration for his services; if he looks to a 875 private party for his remuneration, his capacity and ability to perform his role as Public Prosecutor properly will be endangered. Government cannot appoint Special Public Prosecutor on such terms, abdicating their financial responsibility or directing him to receive his remuneration from any private individual . . . Some other High Courts have taken a different view of the matter. A division Bench of the Gujarat High Court in Dilipbhai Chhotalal Dave vs State of Gujarat & Ors., [1971] Guj. L.R. Vol. 12, 999 considered a case of this type where the Public Prosecutor and the Assistant Public Prosecutor were designated as Special Public Prosecutors for conducting a particular case. It was found by the Court that remuneration of the advocates had been left to be fixed by agreement between them and the Central Bank of India for whom they were to appear was to pay them directly. The High Court held: "That though the Public Prosecutor would be incharge of and is required to conduct the prosecution before the court of sessions, the control of proceedings before the Court is ultimately in the hands of the presiding Judge. It would not be unreasonable to assume that if there is unnecessary prolongation of the trial and consequential harassment of the accused at the hands of the Public Prosecutor or unfair handling of the prosecution case by the prosecutor, the Court would always intervene and protect the accused and ensure a fair trial. " The Court further found that: "Rule 38 of the Gujarat Law Officers (Conditions of Service) Rules, 1965 made provision that if a Special Counsel was appointed, the terms and conditions of his employment would be such as may be determined by the State Government by an order in writing. It was open to the State Government to provide for fees of the Special Counsel appointed by it to be paid by virtue of an agreement directly arrived at between the Special Counsel and the complainant. " Some other cases taking the same view as the Gujarat High Court were also placed before us in course of the hearing. 876 The pattern that prevails in most of the States is that there is a Remembrancer of Legal Affairs who inter alia looks after the cases instituted by the State. At the district level such interest of the State is looked after by the District Magistrate. There may be instances where a case instituted on a private complaint is really a public cause. In such a case the prosecution though initiated by a private individual is really one which should be taken over by the State. If the complainant thereof approaches the State for assistance in a case of that type by appointing a Special Public Prosecutor or an Assistant Public Prosecutor to support the prosecution it would be for the Legal Remembrancer or the District Magistrate to favourably consider such a request and it would ordinarily be expected that Government would appoint a Special Public Prosecutor to take charge of the prosecution. There may also be cases of private complainants where for various other reasons it would be appropriate for the State to support the prosecution by appointing a Public Prosecutor or a Special Public Prosecutor to look after the case. Instances of this type would be cases where the victims are of economically backward classes who are not in a position to vindicate their rights through Court without the assistance of the State. Here again the Public Prosecutor 's services may be placed at the disposal of the complainant. It is a well known position in Criminal Jurisprudence that the State is the prosecutor and that is why the primary position is assigned to the Public Prosecutor and where the Public Prosecutor appears, the request of the complainant or the victim to be represented by any other counsel is subject to permission of the Court. Two questions have now to be dealt with whether as a rule whenever there is a request made by a private complainant for the appointment of a Special Public Prosecutor, should the same be accepted and whether such Special Public Prosecutor should be paid by the private party availing his services. In most of the States, as we have already observed, the Remembrancer of Legal Affairs looks after the State litigations. He is a responsible officer and normally with judicial experience. When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor. It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed would be contrary to the spirit of the scheme of the Code. There may be cases where a powerful complainant may have begun a 877 proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules referred to above is accepted or what the High Court has indicated is adopted. We are inclined to observe that the request for appointment of a Special Public Prosecutor should be properly examined by the remembrancer of Legal Affairs and only when he is satisfied that the case deserves the support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be incharge of the case. The next question would be whether the Special Public Prosecutor should be permitted to be paid by the private complainant. There is considerable force in what has been stated by the Kerala High Court in the case we have referred to above. There may be certain cases where exception may be made, such as where the prosecutor is a public sector undertaking, a bank whether nationalised or not, an educational institution and the like. The rate of fees should be prescribed and the private complainant should be called upon to deposit the fees either with the Remembrancer of Legal Affairs or a prescribed State agency from where the fees would be drawn by the Special Public Prosecutor. To leave the private complainant to pay to the Special Public Prosecutor would indeed not be appropriate. We would make it clear that we do not support the conclusion of the High Court that as a rule whenever there is request of appointment of a Special Public Prosecutor or an Assistant Public Prosecutor, the same should be accepted. The Remembrancer of Legal Affairs should scrutinise every request, keeping a prescribed guideline in view and decide in which cases such request should be accepted, keeping the facts of such case in view. Ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor 's remuneration may be collected from the private source. In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same. In view of these conclusions and our disagreeing with the view of the High Court, the appeals shall stand allowed. Rule 22 of the Maharashtra Rules, referred to above, in our view is bad and the State Government should properly modify the same keeping 878 our conclusions in view. The Remembrancer of Legal Affairs of the Maharashtra Government will now decide as to whether in the three cases referred to here, the services of a Special Public Prosecutor, a Public Prosecutor or an Assistant Public Prosecutor should be provided and in case he comes to the conclusion that such provision should be made, he should decide as to whether the State administration should pay for such Public Prosecutor or the private complainant should bear the same. There would be no order as to costs. H.S.K. Appeals allowed.

The appellants were facing prosecution for several charges under the Indian Penal Code in different trials. By different notifications the State of Maharashtra appointed some advocates as Assistant Public Prosecutor and Special Public Prosecutors in exercise of powers under section 25(1) and 24(8) respectively of the Code of Criminal Procedure, 1973 for conducting the prosecution. The notifications were challenged in a group of writ petitions before the High Court. A Division Bench of the High Court by a common judgment negatived the plea advanced by the appellants, rejected the writ petitions and upheld the appointments. Hence these appeals by special leave. The appellants contended that the Code confers a special status on the public prosecutor whenever it has been considered necessary, law has prescribed the interest to be represented by the public prosecutor and it would not be in proper exercise of power by the State Government to make appointment of a Special Public Prosecutor to support a private transaction and provide for his remuneration from private source. Allowing the appeals this Court, ^ HELD: In most of the States, the Remembrancer of Legal Affairs looks after the State litigations. He is a responsible officer and normally 869 with judicial experience. When an application for the services of a Special Public Prosecutor or an Assistant Public Prosecutor is made in a given case the power would be vested in him to examine the facts and take decision as to whether the case merits the appointment of a Special Public Prosecutor or an Assistant Public Prosecutor. It would not be appropriate to accept the position that whenever an application is made it should be allowed and a Special Public Prosecutor should be appointed would be contrary to the spirit of the scheme of the Code. There may be cases where a powerful complainant may have begun a proceeding to victimize his opponent. If in such a case the State concedes to the request for appointment of a Special Public Prosecutor there will be traversity of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complainant. The primacy given to the Public Prosecutor under the scheme of the Code has a social purpose and the same would be lost if the procedure adopted by Rule 22 of Maharashtra Rules is accepted or what the High Court has indicated is adopted. [876F H;877A B] Rule 22 of the Maharashtra Rules is bad and the State Government should properly modify the same keeping our conclusions in view. [877H;878A] The next question would be whether the Special Public Prosecutor should be permitted to be paid by the private complainant. The Remembrancer of Legal Affairs should scrutinise every request, keeping a prescribed guideline in view and decide in which cases such request should be accepted, keeping the facts of such case in view. Ordinarily the Special Public Prosecutor should be paid out of the State funds even when he appears in support of a private complainant but there may be some special case where the Special Public Prosecutor 's remuneration may be collected from the private source. In such cases the fees should either be deposited in advance or paid to a prescribed State agency from where the Special Public Prosecutor could collect the same. [877D,F H] In the instant cases the Rememberancer of Legal Affairs of the Maharashtra Government will now decide as to whether the services of a Special Public Prosecutor, a Public Prosecutor or an Assistant Public Prosecutor should be provided and in case he comes to the conclusion that such provision should be made, he should decide as to whether the State Administration should pay for such Public Prosecutor or the private complainant should bear the same. [878A B] 870 K.C. Sood vs S.C. Gudimani, [1981] Crl. L.J. Vol. II, 1779;P.G. Narayanankutty vs State of Kerala and Ors., [1982] Crl. L.J. Vol. 88, 2085 and Dilipbhai Chhotalal Dave vs State of Gujarat & Ors., [1971] Guj. L.R. Vol. 12, 999, referred to.

ition No. 259 of 1990. (Under Article 32 of the Constitution of India). Yogeshwar Prasad, R.K. Jain, Satish Chandra, A.S. Pundir, Gopal Subramanium, Mrs, S.D. Dikshit, Jitender Sharma, R. Venkataramani, Mrs. Rachna Gupta, M.P. Shorawala, D.K. Garg, Pramod Swarup, R.N. Keshwani, Mrs. Anil Katiyar, Anis Ahmed Khan and A.P. Mohanty for the Appearing parties. The Judgment of the Court was delivered by KULDIP SINGH, J. Before us are the members of Uttar Pradesh Higher Judicial Service (hereinafter called the `Service ') Promotees and the direct recruits, as usual, are in the fray. This is their second round of litigation in this court. Earlier in P.K. Dixit and Others vs State of U.P. and Others, ; this court directed the preparation of fresh seniority list in accordance with the observation made therein. The Allahabad High Court thereafter framed and circulated final seniority list of the service of August 25, 1988. Both promotees and direct recruits are not satisfied with the same. They have challenged the said seniority list, inter alia on the ground that it is not in conformity with the directions of this court in Dixit 's case. 429 We may briefly state the necessary facts. The service was initially governed by statutory rules called the Uttar Pradesh Higher Judicial Service Rules, 1953 (hereinafter called `1953 rules '). Recruitment to the service under the said rules was from two sources, by promotion and the direct recruitment. In Chandra Mohan vs State of Uttar Pradesh, this court struck down the 1953 rules so far as the said rules provided direct recruitment of the service. As a consequence there was no direct recruitment to the Service till the year 1975 76. This members of the service promoted under the 1953 rules were designated as Civil and Sessions Judges. On May 8, 1974 the Uttar Pradesh Higher Judicial Service (abolition of cadre of the Civil and Sessions Judges) Rules, 1974 (hereinafter called `1974 rules ') came into force. Under these rules the cadre of Civil and Sessions Judges was abolished. Rules 2 and 3 of 1974 rules, which are relevant, are reproduced hereafter: 2. Abolition of the Cadre of Civil and Sessions Judges. With effect from the date of commencement of these rules, the cadre of Civil and Sessions Judges shall stand abolished and the Uttar Pradesh Higher Judicial service shall, with effect from the said date, consist of the posts of District and Sessions Judges and Additional District and Sessions Judges only. Creation of posts and confirmation . (1) Upon the abolition of the cadre of Civil and Sessions Judges, permanent and temporary posts of Additional District and Sessions Judges equal in number of the permanent and temporary posts, respectively of Civil and Sessions Judges existing immediately before the date of commencement of these rules shall stand created with effect from the said date, and the officers holding the posts of Civil and Sessions Judges immediately before the said date shall become Additional District and Sessions Judges and be designated accordingly. (2) An officer who is confirmed on the post of Civil and Sessions Judge before the commencement of these rules shall with effect from the date of such confirmation, be deemed to be confirmed on the post of Additional District and Sessions Judge. 430 It is, thus, obvious that the cadre of Civil and Sessions Judges stood abolished and a new cadre of Additional District and Sessions Judges, consisting of permanent and temporary posts equal in number of the permanent and temporary posts respectively of Civil and Sessions Judges, came into existence under the 1974 rules. The Civil and Sessions Judges holding permanent or temporary posts in the Service were re designated as Additional District and Sessions Judges with effect from May 8, 1974, the date when the 1974 rules were enforce. On that date 271 officers were working as Additional District and Sessions Judges against 235 posts (153 permanent and 82 temporary) in the Service. The Service was reconstituted and given a freshlook by the rules framed under Article 309 read with Article 233 of the Constitution of India called the Uttar Pradesh Higher Judicial Service Rules, 1975 (hereinafter called `the 1975 Rules). These rules came into force with effect from April 5, 1975. The relevant rules, 5, 6, 8 and 26 are reproduced hereinafter: 5. Source of recruitment. The recruitment of the Service shall be made= (a) by direct recruitment of pleaders and advocate of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published; (b) by promotion of confirmed members of the Uttar Pradesh Nyayik Sewa (hereinafter referred to as the Nyayik Sewa, who have put in not less than seven years service to be computed on the first day of January next following the year in which the notice inviting applications is published; Provided that for so long as suitable officers are available from out of the dying cadre of the Judicial Magistrates, confirmed officers who have put in not less than seven years service to be computed as aforesaid shall be eligible for appointment as Additional Sessions Judges in the Service. Explanation. When a person has been both a pleader and an advocate his total standing in both the capacities shall be taken into account in computing the period of seven years under clause (a). 431 6. Quota. Subject to the provisions of Rule 8, the quota for various sources of recruitment shall be (i) direct recruitment from the Bar 15% (ii) Uttar Pradesh Nyayik Sewa 70% of the vacancies. (iii) Uttar Pradesh Judicial Officers 15% Service (Judicial Magistrates). Number of appointments to be made. (1) The Court, shall, from time to time, but not later than three years the last recruitment, fix the number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years. If at any selection the number of the selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa: Provided that the number of vacancies filled in as aforesaid under this sub rule shall be taken into consideration while fixing the number of vacancies to be allotted to the quota of direct recruits at the next recruitment, and the quota for direct recruits may be raised accordingly; so, however, that the percentage of direct recruits in the Service does not in any case excess 15 per cent of the total permanent strength of the service. Provided further that all the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if and when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be shared between the three sources under these rules; Provided also that the number of vacancies equal to 15 per cent of the vacancies referred to in the last preceding proviso shall be worked out for being allocated in future to the Judicial Magistrates in addition to their quota of 15 per 432 cent prescribed in rule 6, and thereupon, future recruitment (after the promotion from amongst the members of the Nyayik Sewa against vacancies referred to in the last preceding proviso) shall be so arranged that for so long as the additional 15 per cent vacancies worked out as above have been filled up from out of the Judicial Magistrates, the allocation of vacancies shall be as follows: (i) 15% by direct recruitment. (ii) 30% from out of the Judicial Magistrates. (iii) 55% from out of the members of the Nyayik Sewa. Seniority. (1) Except as provided in sub rule (1), seniority of members of the service shall be determined as follows. (a) Seniority of the officers promoted from the Nyayik Sewa vis a vis the officers recruited for the Bar shall be determined from the date of continuous officiation in the service in the case of promoted officers and from the date of their joining the service in the case of direct recruits. Where the date of continuous officiation in the case of an officer promoted from the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same, the promoted officer shall be treated as senior: Provided that in the case of a promoted officer the maximum period of continuous officiation in the service shall not, for the purpose of determining seniority exceed three years immediately preceding the date of confirmation . . . Statement of facts filed by the High Court shows that on April 5, 1975, when the 1975 rules came into force, there were 229 permanent and 7 temporary (total 236) posts in the service. This total included 31 temporary posts mention in second proviso to rule 8(2) of 1975 rules. By that date these posts had become permanent. The statement further shows that 263 officers were working as Additional District and Sessions Judges on the said date. We take it that it that there were 236 posts in the Service on the commencement of the 1975 rules. 433 P.K. Dixit and 7 other promotee officers filed two writ petitions under Article 32 of the Constitution of India challenging the seniority assigned to them on two grounds. It was contended that all the posts, existing on April 5, 1975 when the 1975 rules came into force should be deemed to have been filled by the officers holding the designation of Additional District and Sessions Judges on that date. Secondly, it was contended that the promotees were entitled to the seniority from the date of their actual continuous officiation and not by limiting the said period to three years preceding the date of confirmation. This court by its judgment dated October 8, 1987 in Dixit 's case (supra) partly allowed the writ petitions and directed the High Court to frame the seniority list afresh keeping in view the observations made in the judgment. The promotes claim that the judgment in Dixit case is wholly in their favour on the first point. The direct recruits, however, contest the said claim and assert that the contention of the promotees was rejected and their claim was confined to the number of posts as provided in First Proviso to rule 8(2) of the 1975 Rules. Pursuant to the judgment in Dixit case the High Court issued a tentative seniority list on February 11, 1988. The promotees were fully satisfied with the same as according to them the said list was drawn in conformity with the Judgment in Dixit case. Objections were invited against the tentative seniority list and thereafter the High Court constituted a five Judge committee to finalise the list. On the basis of the report of the committee final seniority list was issued on August 25, 1988. O.P. Garg and 4 other promotees have filed writ petition No. 259 of 1989 challenging the final seniority list. P.K. Dixit and others, petitioners in the original Dixit case have filed Civil Miscellaneous Petition No. 3473 of 1989 seeking clarification of the said judgment and also supporting the case of the promotees. The direct recruits have filed writ petition No. 1304 of 1988 under Article 32 of the Constitution of India impugning the final seniority list issued by the High Court. It is interesting that both promotees and the direct recruits are relying on the judgment in Dixit case and are contending that the final seniority list issued by the High Court is contrary to the said judgment. The promotees, the direct recruits and the High Court have sought support from Dixit case on the basis of their own interpretation of the judgment. Apparently there are diverse observations in Dixit case which are being stretched by the parties in support of their rival contentions. The promotees strongly rely on the following paragraphs from Dixit case to show that the First Point argued before the Bench was decided in their favour. 434 "In the written affidavit filed by the High Court, it is not disputed that before these rules were brought into force, all the posts which were available on the date on which these rules came into force have to be filled in by promotion as till that date there was no rule requiring direct recruitment. But unfortunately, the High Court in their return have not mentioned the exact number of vacancies existing on that date also the number of officers who were officiating on the date as Civil and Sessions Judges or Additional District and Sessions Judges who were entitled to be included in that cadre of higher judicial service under these rules." "It is not disputed that on the date on which these rules (1975 Rules) were brought into force, all the posts available were to go to the promoted officers and the only thing that the High Court is expected to do is to find out how many posts were available on that date and how many persons were officiating in the higher judicial service or equivalent posts on that date and their seniority ought to be fixed on the basis of their promotion to the posts except where an officer was not found fit or where officer concerned was reverted back to the judicial posts. The documents do not disclose that any one of these judicial officers who were promotees have been reverted. The documents also do not disclose that at any time the High Court considered the question of their confirmation and any one of them was not found fit for confirmation, or that it was decided to postpone the date of confirmation because the work of the officer was not upto the mark. The record produced by the High Court only shows the date from which these petitioners were promoted and started officiating as Additional District Judges and the date on which they were ultimately confirmed. During this period their case was considered at any time does not appear from the record produced in this case nor was the contention of the learned counsel appearing for the High Court. It, therefore, is not disputed that these petitioners who were promoted before these rules (1975 Rules) were brought into force were never found unfit for confirmation and in this view of the matter, therefore, it is clear that all posts available on the date on which these new rules were brought into force will have to be filled in by these promoted 435 officers who were working in the officiating capacity in the post of higher judicial service on the date on which these rules were brought into force. So far as the situation before these rules were brought into force is concerned even during the course of argument not much controversy appears to exist as it is clear that the question of direct recruitment and the quota of the direct recruits vis a vis promotees was not in existence. " Based on the above quoted findings in Dixit case, the promotees plausibly claim that on April 5, 1975 when the 1975 rules came into force all the 236 posts in the Service had already been consumed by the existing members of the service who were working as Additional District and Sessions Judges. Till that date the recruitment to the service was only by way of promotion and as such there was no question of allocating any post to the direct recruits who had not yet born in the service. The direct recruits, on the other hand, assert that the Dixit case decides the controversy in their favour. Reliance in that respect is placed on the following observations in the judgment: "This also appears to be the intention of the rules when they were framed in 1975 as is clear from the proviso to Rule 8. It reads: "provided further that the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date, if and when they are converted into permanent posts, shall be filled by promotion from amongst the members of the Nyayik Sewa; and only the remaining vacancies shall be shared between the three sources under these rules: It therefore is clear that even these rules provided that all the posts (permanent) available in the Higher Judicial Service existing on May 10, 1974 plus 31 temporary posts existing on that date which may become permanent later shall be filed by promotion from amongst the members of the Nyayik Sewa. It is therefore clear that all the posts in the Higher Judicial Service, lying vacant on May 10 1974 plus thirty one will have to be filled in from the officers of the Nyayik Sewa. May be that some of these posts may be occupied by promotee officers who were given promotions 436 on ad hoc basis and working on those posts or that the posts may be lying vacant. Whatever may be the situation on the basis of what has been discussed above and also as has been clearly provided in these rules the matter will have to be gone into the High Court afresh and fill in all the posts in the Higher Judicial Service available on May 10, 1974 plus 31 posts from the officers of the Nyayik Sewa." "It has therefore to be accepted that all those who were working as Civil and Sessions Judges on 8th May, 1974 automatically became Additional District and Sessions Judges and what was left was only a consideration of their cases of confirmation and in so doing in view of the conclusions arrived at by us and also as has been provided in the proviso to Rule 8 quoted above all the posts available on 10th May, 1974 plus 31 posts (temporary) on that date will have to be filled in from the cadre of Nyayik Sewa by promotion." "But in view of what we have discussed earlier about the appointments on the posts available before these Rules were brought into force and to fill in temporary posts, we feel that the matter will have to be examined afresh by the High Court. So far as posts available on 10th May, 1974 plus 31 posts are concerned they will have to be filled in only by promotees as we have discussed earlier and also in view of proviso to Rule 8 and after doing it examine the cases of promotion and direct recruitment after the coming into force of these Rules and the vacancies available and after consideration the cases in according with these Rules the High Court will prepare afresh the seniority list which may be notified so that if any objections are there, they may be placed for determination in according with the Rules and in the light of the discussions above. " The precise assertion of the direct recruits, therefore,is that this court interpreting the second proviso to Rule 8(2) of the 1975 rules in Dixist case has held that the promotees as on May 10, 1974, are entitled to all the permanent posts available on that date plus 31 temporary posts and apart from that they cannot lay claim exclusively to the posts created thereafter. The High Court accepted the contention of the direct recruits 437 and gave 153 permanent posts existing on May 10, 1974 plus 31 posts, which became permanent subsequently to the promotees. Consequently out of the 263 Additional District and Sessions Judges who were holding the posts on April 5, 1975 only 184 (153+31) were taken to be the existing members of the Service and remaining officers were asked to enter the service through the promotion quota under the 1975 rules. The second point in Dixit case was regarding fixation of seniority of the promotees under the 1975 rules. Whether whole of the continuous officiation or part of it is to be counted towards seniority was the moot point. Rule 26(1)(a) of the 1975 rules provides that seniority of the direct recruits is to be determined from the date of their joining the service whereas that of the promotees from the date of continuous officiation in the service. But the first proviso to the said rule further limits the period of continuous officiation of a promotee for determining seniority to a maximum of three years immediately preceding the date of confirmation. The promotees contended in Dixit case that they were entitled to the counting of their total period of continuous officiation towards seniority. This court rejected the contention in the following words: "Having gone through these Rules it appears that the contention advanced by the petitioners in respect of proviso to Rule 26 about seniority does not appear to be justified. " The High Court while framing the impugned seniority list did not follow the seniority rule. The High Court determined the seniority of the promotees by giving them benefit of three years continuous officiation immediately preceding the date of availability of permanent vacancy whereas the rule provides three years preceding the date of confirmation. Mr. Yogeshwar Prasad, learned senior advocate appearing for the promotees. Mr. Satish Chandra, learned senior advocate for the direct recruits and Mr. Gopal Subramanium, learned advocate appearing for the High Court have addressed elaborate arguments before us. The learned counsel have read and re read the judgment in Dixit case in support of their respective contentions. The thrust of Mr. Yogeshwar Prasad 's arugment is twofold. He contended that the service consisting of Additional District and Sessions Judges was constituted under the 1974 Rules which continued till April 5, 1975 when the Service was reconstituted under the 1975 rules. According to him all 438 the posts in service, permanent and temporary, available on April 5, 1975 would be deemed to have been filled from amongst the Additional District and Sessions Judges working on that date. Only the posts created thereafter could be filed from the three sources under the 1975 rules. The second contention of Mr. Prasad was that the benefit of continuous officiation towards seniority cannot be confined to three years and the promotees are entitled to the fixation of their seniority on the basis of continuous length of Service. Mr. Satish Chandra on the other hand has argued that second proviso to Rule 8(2) of the 1975 rules which is retrospective in its application, limits the number of vacancies as on May 10, 1974 to be filled by promotion from amongst the members of Nyaik Sewa. According to him, under the said proviso, all the other posts created after May 10, 1974 are to be filled from the three sources in accordance with the 1975 rules. Mr. Satish Chandra further argued that the High Court acted illegally and in violation of first proviso to Rule 26(1) (a) of the 1975 rules in determining the seniority of the promotees by giving them the benefit of three years officiation immediately preceding the date of availability of permanent vacancy. According to him, such period under the above proviso can only be preceding the date of confirmation. The judgment in Dixit case, by and large, deals with the main points raised by the learned counsel for the parties before us. But in view of divergent view point taken by the promotees, the direct recruits and the High Court on the interpretation of the said judgment, we are of the view that it is necessary to have a fresh look into the matter to finally settle the long drawn controversy between the parties. The service is a prestigious and sensitive service consisting of officers who form the back bone of Uttar Pradesh Judiciary. The service is the feeder cadre for appointment to High Court Judges. It is necessary to settle their rights in clear and unambiguous terms. Taking an overall view of the arguments advance by Mr. Yogeshwar Prasad and Mr. Satish Chandra we pose the following three questions for our determination: 1. What is the scope and interpretation of second proviso to rule 8(2) of the 1975 rules? Whether the Additional District and Sessions Judges, holding the posts on April 5, 1975, can claim that by operation of the 1974 rules they stood appointed to the service and as such consumed all the posts which were available 439 on April 5, 1975 or they were only entitled to vacancies under the second proviso to rule 8(2) of the 1975 rules. Whether the period of continuous officiation in case of a promotee, for determining seniority, is to be counted in terms of First proviso to rule 26(1)(a0 of the 1975 rules or in accordance with the principle adopted by the High Court. Isn 't it the requirement of law that a promotee is entitled to seniority in the service from the date when vacancy in his quota became available. Seniority and appointment in the service being inter linked a further question which necessarily arises for our consideration is whether rules 22(3) and 22(4) of the 1975 rules, which provide appointments to temporary posts in the service from two sources of promotees excluding the direct recruits, can be legally sustained. We may take up the first point for consideration. After the decision by this court in Chandra Mohan 's case (supra), the Service consisted of only promotees with the designation of Civil and Sessions Judges. They were promoted from the lower cadre of U.P. Civil Services (Judicial Branch) called "Nyayik Sewa". Thereafter under the 1974 rules which came into force on May 8, 1974 the Civil and Sessions Judges, holding permanent or temporary posts, were redesignated as Additional District and Sessions Judges. By Operation of the 1974 Rules all the newly designated Additional District and Sessions Judges became members of the Service. Rule 2 of the 1974 Rules specifically provided that with effect from the date of commencement of those Rules "the Uttar Pradesh Higher Judicial Service shall consist of the posts of District and Sessions Judges and Additional District and Sessions Judges". It is thus obvious that the service was reconstituted under the 1974 Rules and all the Additional District and Sessions Judges, to the extent posts were available, became members of the said service by operation of law. There were 271 officers working in the Service on May 8, 1974 and there were 235 posts (153 permanent plus 82 temporary) available in the service. Therefore, 235 officers out of the 271 working on May 8, 1974 for whom the posts were available in the service would be deemed to be members of the service under the 1974 rules. The Service as constituted under the 1974 Rules continued to operate till April 5, 1975 when the 1975 rules were enforced. Till that date the only source of recruitment to the service was by way of promotion. On April 5, 1975 440 the service comprised of 236 posts (229 permanent plus 7 temporary). They were 263 officers working in the service on that date. 235 posts were already occupied by the officers who had become members of the service under the 1974 rules and the one additional post available would go to the 236th officer holding the post on April 5, 1975. The 236 posts comprising the service on April 5, 1975 have to be assigned and given to the 236 officers out of 263 who were working a Additional District and Sessions Judges and they are to be treated as existing members of the service as on April 5, 1975. It is further axiomatic that the 236 officers including those holding temporary posts would en bloc rank senior to all those who were appointed to the service after April 5, 1975 under the 1975 rules. The view which we have taken is also in conformity with the observations in Dixit case relied upon by the promotees which we approve. Coming to the second proviso to rule 8(2) of the 1975 rules relied upon by the direct recruits, we are of the view that the interpretation given to the proviso by the High Court is not correct. A bare reading of the proviso shows that it was not applicable to the Service as reconstituted under the 1974 Rules consisting of Additional District and Sessions Judges. The proviso states that "all the permanent vacancies existing on May 10, 1974 plus 31 temporary posts existing on that date. . ., shall be filled by promotion from amongst the members of the Nyayik Sewsa; and only the remaining vacancies shall be shares between the three sources under these rules. " The Additional District and Sessions Judges working on May 10, 1974 were not members of the Nyayik Sewa, they had already become members of the Service on May 8, 1974 under the 1974 Rules. The proviso talks of "Nyayik Sewa" and "the three sources under the Rules", which obviously means it is visualising a situation which was to exist after the enforcement of the 1975 rules on April 5, 1975. Rule 8 of the 1975 rules is under the heading "number of appointments to be made" and various parts of the said Rule deal with different situation for making appointments from different sources at different times. Proviso 2 was enacted to meet a particular situation. The proviso talks of "existing vacancies" on May 10, 1974. On that date the posts held by the Additional District and Sessions Judges, who were members of the Service, could not be termed as "existing vacancies". The "existing vacancies on May 10, 1974" could only be those vacancies which were left over after providing posts to all the officers who were redesignated as Additional district and Sessions Judges under the 1974 Rules. The proviso was meant to deal with a situation which might have arisen in the event, there had been more posts and less number of officers to occupy 441 the said posts on the reconstitution of the Service under the 1974 Rules. In that situation the balance vacancies could be the `existing vacancies ' falling within the mischief of the proviso. Since prior to April 5, 1975 the only source of recruitment to service was by way of promotion the proviso intended to fill all those posts created before that date and available on that as "existing vacancies (surplus posts), from amongst the members of `Nyayik Sewa ' in the first instance and thereafter operate the quota from three sources under the 1975 rules. The proviso was meant to carry the surplus vacancies as on May 10, 1974 to April 5, 1975 for the benefit of the promotees. But since the number of officers working in the service as on May 10, 1974 and April 5, 1975 was much more than the posts available in the service the situation envisaged by the proviso did not arise. The second proviso to rule 8(2) of the 1975 rules could not operate and since it was intended to meet one time eventually it has become redundant. The interpretation placed on the proviso by the direct recruits and the High Court if accepted would expose the rule to an attack on the grounds of discrimination and arbitrariness. The Additional District and Sessions Judges had not only the right to be appointed to the service but they were so appointed by the operation of 1974 rules. The proviso, even though retrospective, could not have taken away the vested rights of the officers who had already become members of the service. This could not be the intention of the framers of the 1975 rules. We, therefore, reject the contention of Mr. Satish Chandra. Third proviso to Rule 8(2) which is dependent on second proviso must obviously meet the same fate. The net result is that on April, 5, 1975 all the 236 officers working against 236 posts (229 permanent+7 temporary) as Additional District and Sessions Judges in the Service, shall be deemed to be existing members of the Higher Judicial Service as constituted under the 1975 Rules and they shall en bloc rank senior to all other officers appointed to the service thereafter from the three sources in accordance with their quota under the Rules. We may now take up the second point as to how the seniority of the promotees, who have rendered continuous officiating service, be fixed under the 1975 rules. Mr. Satish Chandra, learned counsel for the direct recruits has taken us through Rule 3(d) which defines "member of the service", 4(3), 13 and 19(2) of the 1953 Rules and has contended that temporary posts cannot form part of the cadre of the Service. According to him service rendered in or against a temporary post is outside the pale of the 1975 rules and cannot be counted for seniority. He has further relied upon clauses (13) and (19) of rule 9 of the U.P. Fundamental Rules which define "lien" and "officiate" and 442 contended that an officiating appointment can only be made against a permanent post and as such the continuous officiation immediately prior to the date of confirmation provided in the first proviso to rule 26(1)(a) of the 1975 rules can only be the officiation against a permanent post. It is not necessary for us to go into this question because the point is not res integra. It is not disputed that the service consists of permannt and temporary posts. This Court in Dixit 's case after taking into consideration the scheme of the 1975 rules held as under: "In Rule 22 of phrase used is "to make appointment to the Service on the occurrence of substantive vacancies" and it was contended on the one side that substantive vacancies does not mean permanent vacancies whereas on the other hand it was contended that if only means permanent vacancies. The substantive vacancy has not been defined in the Rules but proviso to Rule 8 which has been quoted above speaks of permanent vacancies and temporary posts. In fact the scheme of the Rules clearly indicates that there are permanent posts and temporary also which are created to meet contigency and it may in due course be made permanent. It therefore could not be doubted that when appointment under Rule 22 is contemplated in the service of substantive vacancies, it may be both temporary or permanent but the vacancy must be in the cadre. " We agree with the above findings and accept the position that the Service consists of permanent as well as temporary posts. The substantive vacancy has not been defined under the 1975 rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre. All temporary posts created under rule 4(4) of the 1975 rules are additions to the permanent strength of the cadre and as such form part of cadre. Appointments under rule 22 of the 1975 rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre strength the appointment against the said post has to be treated as substantive appointment. There is no dispute that the seniority of a direct recruit, appointment to the post in service, has to be determined from the date of continuous officiation in the service. The question for our determination is whether the seniority of a promoted officer is to be counted from the date of countinuous officiation giving him benefit of full 443 period of officiation as claimed by Mr. Yogeshwar Prasad or only for a maximum period of three preceding the date of confirmation as provided by first proviso to Rule 26(1)(a) as agrued by Mr. Satish Chandra. The High Court has not followed either of the methods and has determined the seniority by giving benefit to a promotee of three years officiation preceding the date of availability of a permanent post. We have given our thoughtful consideration to the arguments of the parties. This Court has time and again held that when an incumbent is appointed to a post in accordance with the Service Rules his seniority has to be counted on the basis of continuous length of service and not in reference to the date of confirmation. Even in present case the promotees have been confirmed long after the availability of permanent vacancies. This Court in S.B. Patwardhan & Others etc. vs State of Maharashtra & Others, ; observed that "confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies". A Constitution Bench of this Court in Direct Recruit Class II Engineering Officers ' Association vs State of Maharashtra and Others, ; approved Patwardhan 's case and laid down the following propositions in this respect: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The Corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard 444 they must ordinarily be followed strictly. " Keeping in view the scheme of the 1975 rules, we are of the view that first proviso to rule 26(1)(a) of the 1975 rules which links the seniority with the date of confirmation is on the face of it arbitrary and as such violative of Article 16 of the Constitution of India. Since the recruitment to the service is from three sources the existence of a vacancy either permanent or temporary is the sine quo non for claiming benefit of continuous length of service towards seniority. The period of officiation/service which is not against a substantive vacancy (permanent or temporary) cannot be counted towards seniority. While striking down first proviso to rule 26 (1)(a) of the 1975 rules we hold that the continuous officiation/service by a promotee shall be counted for determining his seniority only from the date when a substantive vacancy against a permanent or temporary post is made available in his quota under the 1975 rules. Finally we take up the third point. Recruitment to the service under the 1975 rules is from three sources and is based on quota as provided therein. The cadre consists of permanent as well as temporary posts. We have already interpreted the seniority rule to the mean that the seniority of the direct recruit is to be determined from the date of his joining the service and that of promotee on the basis of continuous officiation/service from the date when a vacancy whether permanent or temporary, becomes available in his quota. With these characteristics of the service it is obligatory that there should be equality of opportunity to enter the service for all the three sources of recruitment. The seniority in the service is consequential and dependent on appointment. If the recruitment rule gives unjustifiable preference to one source of recruitment the seniority rule is bound to become unworkable. The object of having recruitment from different sources is to have a blended service to create healthy competition and in the process achieve efficiency. If one of the sources of recruitment is dealt with unevenly under the Service Rules the said objective cannot be fulfilled. The 1975 rules permit appointment to temporary vacancies in the service by promotion and from the judicial service. No direct recruitment to the temporary vacancies is provided under the said rules. Rule 18 of the 1975 rules provides procedure for selection of the direct recruits. Rule 20 lays down the procedure for recruitment by promotion and Rule 22 provides for appointment. These Rules are reproduced as under: 445 "18. Procedure of selection (1) The Selection Committee referred to in Rule 16 shall scrutinize the applications received and may thereafter hold such examination, as it may consider necessary for judging the suitability of the candidates. The Committee may call for interview such of the applicants who in its opinion have qualified for interview after scrutiny and examination. (2) In assessing the merits of a candidate the Selection Committee shall have due regard to his professional ability, character, personality and health. (3) The Selection Committee shall make a preliminary selection and submit the record of all candidates to the Chief Justice and recommended the names of the candidates in order of merit who, in its opinion, are suitable for appointment to the service. (4) The Court shall examine the recommendations of the Selection Committee and, having regard to the number of direct recruits to be taken, prepare a list of selected candidates in order of merit and forward the same to the Governor. Promotion of members of the Nyayik Sewa. (1) Recruitment by promotion of the members of the Nyayik Sewa shall be made by selection on the basis of seniority cum merit. (2) The field of eligibility for recruitment by promotion shall be confined to four times the number of vacancies to be filled by promotion. The Selection Committee shall prepare a list in order of seniority of the officers eligible under Rule 5(b) of these rules. (3) The Selection Committee shall, after examining the record of the officers included in the list prepared under sub rule(2) of this rule make a preliminary selection of the officers who in its opinion are fit to be appointed on the basis of seniority cum merit. In assessing the merits of a candidate, the Selection Committee have due regard to his service record, ability, character and seniority. The list shall contain the names of officers twice the number of 446 vacancies required to be filled by promotion of the members of the Nyayik Sewa. (4) The Selection Committee shall forward the list of the candidates chosen at the preliminary selection to the Chief Justice along with the names of the officers who, if any, in the opinion of the Committee have been passed over for promotion to the service. (5) The Court shall examine the recommendations of the Selection Committee and make a final selection for promotion and prepare a list in order of seniority of the candidates who are considered fit for promotion and forward the same to the Governor. The list shall remain operative only till the next recruitment. Appointment. (1) Subject to the provisions of sub rules (2) and (3), the Governor shall on receipt from the Court of the lists mentioned in Rules 18,30 and 21 make appointments to the service on the occurrence of substantive vacancies by taking candidates from the lists in the order in which they stand in the respective list. (2) Appointments to the service shall be made on the rotational system, the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of direct recruits (and so on), the remaining vacancies shall thereafter be filled by promotion from the list of the officers of the Nyayik Sewa. Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrates, appointments to the service shall be made in such a way that the second fifth and eighth (and so on), vacancy shall be filled from the list of Judicial Magistrates. (3) Appointment for temporary vacancies or in officiating capacity shall be made by the Governor in consultation with the Court from amongst the members of the Nyayik Sewa. Provided that for so long as suitable officers are available from the cadre of the Judicial Magistrate appoit 447 ments on temporary vacancies or in officiating capacity shall be made in consultation with the Court from amongst the Judicial Magistrate according to the quota fixed for that source under these rules: Provided further that for so long as such members of the Judicial Service as are considered suitable for appointments on temporary vacancies or in officiating capacity, are not available in sufficient number, the Governor in consultation with the Court may fill in not more than 50 per cent of such vacancies from amongst the officers of the cadre of Judicial Magistrates. (4) The appointments shall be made or rotational system the first vacancy shall be filled from the list of officers of the Nyayik Sewa, the second vacancy shall be filled from the list of Judicial Magistrates (and so on). Is obvious from Rules 22(3) and 22(4) reproduced above that appointments to the temporary vacancies are to be made from amongst the members of the Nyayik Swea and the Judicial Magistrates. Under Rule 20 the Selection Committee has to prepare a merit list in order of seniority of the officers of Nyayik Sewa twice the number of vacancies and the said list remains operative till the next recruitment. Similarly, a merit list of eligible officers from the Judicial Magistrates is prepared. Whenever temporary posts are created, appointments to the said posts under Rule 22(3) and 22(4) are made from out of the lists so prepared. Rule 18 on the contrary is silent about the preparation of a similar merit list obviously because Rule 22 does not permit any appointment to the temporary posts from amongst the direct recruits. We see no justification is not applying the quota rule to the temporary posts in the service and confining appointments to said posts to the two sources of promotees. This Court in A.Ks Subraman vs Union of India, [1975] 2 S.C.R. 979 held as under: "The quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous of adventitious nature) . . " This court in P.s. Mahal vs Union of India, ; held as under: 448 "It is therefore obvious that if a vacancy arises on account of an incumbent going on leave or for training or on deputation for a short period, it would be a fortuitous or adventitious vacancy and the quota rule would not be attracted in case of such a vacancy. But where a vacancy arises on account of in incumbent going on deputation for a reasonably long period and there is no reasonable likelihood of the person promoted to fill such vacancy having to revert, the vacancy would be subject to the quota rule. " It is, therefore, apparent that what has to be considered for the applicability of the quota rule is a vacancy in a post included in the sanctioned strength of the cadre. ." It is thus clear that the vacancies in the posts of Executive Engineer arising on account of deputation of Executive Engineers to other departments, organisations and public undertakings for a period of one or more years were long term vacancies and they could not be regarded as fortutitous or adventitious in character and hence they were subject to the quota rule". When temporary posts under rule 4(4) of the 1975 Rule are created as addition to the cadre we see no justification to deny the direct recruits their share of the quota as provided under rule 6 of the said rules. Rules 5 of the 1975 rules specifically lays down that recruitment to the service shall be made from three sources including the direct recruits. Rule 6 fixes the quota for various sources of recruitment to the service and allocates 15 per cent of the posts in the service to the direct recruits. Rules 5 and 6 read with Rule 22(2) provide for appointments to the service in accordance with quota. These rules have to be read homogeneously and as a part of the same scheme. The service having comprised of three sources including the direct recruitment there is no justification to deprive the direct recruits of their share in the temporary posts in the service. Unless the direct recruits are given their due quota in the temporary posts the seniority rule cannot operate equitably. We see no justification whatsoever in having rule 22(3) and 22(4) of the 1975 rules which deprive one of the sources of recruitment the benefit of appointment to the temporary posts. The rules on the face of it are discriminatory. There is no nexus with the object sought to be achieved by framing the abovesaid rules. We, therefore, strike down rules 22(3) and 22(4) of the 1975 rules being 449 discriminatory and violative of Articles 14 and 16 of the Constitution of India. We, however, direct that the appointments already made under these rules (22(3) and 22(4) shall not be invalidated on this ground. We further direct that while selecting candidates under rule 18 the Committee shall prepare a merit list of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment. We further direct that the appointments under rules 22(1) and 22(2) of the Rules shall be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the 1975 rules. Before parting with the judgment we make it clear that the findings and observations in Dixit case to the extent those are contrary to this judgment, shall be deemed to have been over ruled. We allow the writ petitions and the Civil Miscelleneous petition, quash the final seniority list dated August 25, 1988 and direct the High Court to prepare, circulate, invite, objections and finalise the seniority list of the service in the light of the findings given and the observations made by us in this judgment. We reiterate our findings hereunder: 1. All the 236 promotee officers against 236 posts (229 permanent plus 7 temporary) as Additional District and Sessions Judges on April 5, 1975 shall be deemed to be existing members of the Service as constituted under the 1975 rules and they shall en bloc senior to all other officers appointed to the service thereafter from three sources in accordance with their quota under the 1975 rules. We strike down (first proviso to rule 26(1) of the 1975 rules and direct that the continuous officiation/service by a promotee appointed under the Rules shall be counted for determining his seniority from the date when a substantive vacancy in permanent or temporary post is made available in his quota under the 1975 rules.) 3. (We also strike down rules 22(3) and 22(4) of the 1975 rules but the appointments already made under these rules shall not be invalidated. We further direct that while selecting candidates under rule 18 of the said Rule the committee shall prepare a 450 merit of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment. We further direct that the appointments under rules 22(1) and 22(2) of the 1975 rules shall be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the said rules.) There shall be no order as to costs. R.S.S. Petition allowed.

The appellants as well as the respondents are members of the Uttar Pradesh Higher Judicial Service; while the appellants are the promotees, the respondents have been appointed direct to that service. This is their second round of litigation in this Court concerning their inter se seniority in the service. The Higher Judicial Service was initially governed by statutory rules called the Uttar Pradesh Higher Judicial Service Rules, 1953. Recruitment to the service under the said rules was from sources, by promotion and by direct recruitment. This Court in Chandra Mohan vs State of Uttar Pradesh, struck down the 1953 Rules in so far as the said Rules provided for direct recruitment of the service. As a consequence, there was no direct recruitment to the service till 1975 76, and the service consisted of only promotees with the designation of Civil and Sessions Judges. On May 8, 1974 the Uttar Pradesh Higher Judicial Service (abolition of Cadre of the Civil and Sessions Judges) Rules, 1974 came into force. Under Rules 2 and 3 of the 1974 Rules, the existing cadre of Civil and Sessions Judges stood abolished and a new cadre of Additional District and Sessions Judges came into existence, the Civil and Sessions Judges holding permanent or temporary posts in the Service were re designated as Additional District and Sessions Judges with effect from the date when the 1974 Rules came into force. On that date, 271 officers were working as Additional District and Sessions Judges against 235 posts (153 permanent and 82 temporary) in the service. The Service was reconstituted and given a fresh look by the rules framed under Article 309 read with Article 233 of the Constitution of India, called the Uttar Pradesh Higher Judicial Service Rules, 1975 which came into force on April 5, 1975. On that date 263 officers were 425 working as Additional District and Sessions Judges, against 236 posts in the service. Recruitment to the service under the 1975 Rules is from three sources and is based on quota as provided therein. The three sources of recruitment are (i) direct recruitment from the Bar, (ii) Uttar Pradesh Nyayik Sewa, and (iii) Uttar Pradesh Judicial Service (Judicial Magistrates). In the first round of litigation P.K. Dixit and other promotee officers filed two writ petitions under Article 32 of the Constitution Challenging the seniority assigned to them under the 1975 Rules. This Court by its judgment dated October 8, 1987 in P.K. Dixit vs State of U.P., ; partly allowed the writ petitions and directed the High Court to frame the seniority list afresh keeping in view the observations made in that judgment. In pursuance to the directions of this Court in Dixit case a five Judge committee of the High Court finalised the seniority list on August 25, 1988. The High Court accepted the contention of direct recruits and gave 153 permanent posts existing on May 10, 1974 plus 31 posts, which became permanent subsequently, to the promotees. Consequently, out of the 263 Additional District and Sessions Judges who were holding the posts on April 5, 1975 only 84 (153 + 31) were taken to be the existing members of the Service and the remaining officers were asked to enter the service through the promotion quota under the 1975 rules. In the second round, the promotees have filed writ petition challenging the final seniority list. P.K. Dixit and others, petitioners in the original Dixit case have filed Civil Miscellaneous Petition seeking clarification of the said judgment. The direct recruits have filed writ petition under Article 32 impugning the final seniority list issued by the High Court. Before this Court, the promotees, the direct recruits as well as the High Court have sought support from Dixit case on the basis of their own interpretation of that judgment. The promotees claim that on April 5, 1975 when the 1975 rules came into force all the 236 posts in the Service had already been consumed by the existing members of the service who were working as Additional District and Sessions Judges; till that date the recruitment to the service was only by way of promotion and as such there was no question of allocating any post to the direct recruits who had not yet been born in the service. 426 On the other, hand, the direct recruits contend that this court interpreting the second proviso to Rule 8(2) of the 1975 rules in Dixit case had held that the promotees as on May 10, 1974 are entitled to all the permanent posts available on that date plus 31 temporary posts, and apart from that they cannot lay claim exclusively to the posts created thereafter. In this connection it was contended that temporary posts could not form part of the cadre of the Service, and service rendered in or against a temporary post was outside the pale of the 1975 rules and could not be counted for seniority and as much the continuous officiation immediately prior to the date of confirmation provided in the first proviso to rule 26(1)(a) of the 1975 rules could only be the officiation against a permanent post. Allowing the Writ Petition and the Civil Miscellaneous Petition, quashing the seniority list and directing the High Court to prepare fresh seniority list, this Court, HELD: (1) The interpretation given by the High Court to the second proviso to rule 8(2) of the 1975 Rules is not correct. The proviso was not applicable to the Service as reconstituted under the 1974 Rules consisting of Additional District and Sessions Judges. Proviso 2 was enacted to meet a particular situation. The proviso was meant to deal with a situation which might have arisen in the event there had been more posts and less number of officers to occupy the said posts on the reconstitution of the Service under the 1974 Rules. But since the number of officers working in the service as on May 10, 1974 and April 5, 1975 was much more than the posts available in the service the situation envisaged by the proviso did not arise. The second proviso to rule 8(2) of the 1975 rules could not operate and since it was intended to meet one time eventuality it has become redundant. [440D 441C] (2) The Service as constituted under the 1974 Rules continued to operate till April 5, 1975 when the 1975 rules were enforced. On April 5, 1975 the Service comprised of 236 posts (229 permanent plus 7 temporary)> There were 263 officers working in the service on that date. The 236 posts comprising the service on April 5, 1975 have to be assigned and given to the 236 officers out of 263 who were working as Additional District and Sessions Judges and they are to be treated as existing member of the service as no April 5, 1975. It is further axiomatic that the 236 officers including those holding temporary posts would en bloc rank senior to all those who were appointed to the service after April 5, 1975, under the 1975 rules. [439H 440C] 427 (3) The Additional District and Sessions Judges had not only the right to be appointed to the service but they were so appointed by the operation of 1974 rules. The second proviso to Rule 8(2) even though retrospective could not have taken away the vested rights of the officers who had already become members of the service. This could not be the intention of the farmers of the 1975 rules. [441D] (4) The substantive vacancy has not been defined under the 1975 rules but there can also be a substantive vacancy in a temporary post which is part of the cadre. All temporary posts created under rule 4(4) of the 1975 rules are additions to the permanent strength of the cadre and as such form part of the cadre. [442F] (5) Appointments under rule 22 of the 1975 Rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre strength the appointment. [442G] (6) Recruitment to the service under the 1975 rules is from three sources and is based on quota as provided therein. The cadre consists of permanent as well as temporary posts. The seniority of the direct recruit is to be determined from the date of his joining the service and that of promotee on the basis of continuous officiation/service from the date when a Vacancy whether permanent or temporary, becomes available in his quota. With these characteristics of the service it is obligatory that there should be equality of opportunity to enter the service for all the three sources of recruitment. If the recruitment rule gives unjustifiable preference to one source of recruitment the seniority rule is bound to become unworkable. [444E F] (7) When temporary posts under rule 4(4) of the 1975 rules are created as addition to the cadre there is no justification in not applying the quota rule to the temporary posts in the service and confining appointments to said posts in the service to the two sources of promotees. [448E] A.K. Subraman vs Union of India, referred to. (8) There is no justification whatsoever in having rules 22(3) and 22(4) of the 1975 rules which deprive one of the sources of recruitment the benefit of appointment to the temporary posts. The rules on the face 428 of it are discriminatory. There is no nexus with the object sought to be achieved by framing these rules. [448G H] (9) Rules 22(3) and 22(4) of the 1975 rules are discriminatory and violative of Articles 14 and 16 of the Constitution and are accordingly struck down. However, the appointments already made under these rules 22(3) and 22(4) shall not be invalidated on this ground. Further, while selecting candidates under rule 18 the Committee shall prepare a merit list of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment. Further, the appointments under rules 22(1) and 22(2) of the Rules shall be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the 1975 rules. [449H 450B] (10) The findings and observations in Dixit case to the extent those are contrary to this judgment shall be deemed to have been over ruled. [449C]

N: Criminal Appeal No. 3 13 of 1987 etc. From the Judgment and order dated 12.6.1987 of the Gujarat High Court in Misc. Appln. No. 680 of 1987 P.S. Poti, G.A. Shah, Shankar Ghosh, M.N. Shroff, Vimal Dave, M.R. Barot, E.C. Agarwala, Vijay Pandit, Ms. P. Bhatt, Shakil Ahmad Syed, N.M. Ghatate, S.V. Deshpande, B.R. Dutta, Mrs. H. Wahi, S.S. Khanduja, S.R. Srivastava, Mrs. R. Gupta, K.K. Gupta, 229 A.S. Bhasma and A.M. Khanwilkar,for the appearing parties. The Judgment of the Court was delivered by SEN,J. This appeal by special leave petition are directed against the judgment and order of the Gujarat High Court dated May 12, 1987 and the orders passed by various Designated Court in the State constituted under section 9(1) of the Terrorist & Disruptive activities (prevention) Act, 1987 mainly raise two questions of substantial importance. First of these is as to the jurisdiction and power of the High Court to grant bail under section 439 of the Code of Criminal Procedure, 1973 or by resource to its inherent powers under section 482 to a person held in custody accused of an offence under sections 3 and 4 of the Act, and secondly, as to the nature of the restraint placed on the power of the Designated Courts to grant bail to such person in view of the limitations placed on such power under section 20(8) of the Act. By the judgment under appeal, the High Court has held that under the Act there is total exclusion of the jurisdiction of the High Courts and therefore it cannot entertain an application for grant of bail under section 439 of the Code. In other cases, the persons under detention have applied for grant of special leave under article 136 of the Constitution against the orders passed by various Designated Courts in the State refusing to grant bail on the ground that the power of a Designated Court to grant bail is circumscribed by the limitations prescribed by section 20(8) of the Act i.e. due to the non fulfilment of the conditions laid down therein. As to the facts. It is enough for our purposes to set out the facts giving rise to Civil Appeal No. 313 of 1987. The prosecution case in brief is as follows. On the morning of March 10, 1987, there was an armed clash between the appellants who are members of a cooperative housing society, and the two sons of the original vendor Babubhai Kansara @ Mohamed Ramzan Alabux and their companions over possession of the disputed plot admeasuring 16,000 square yards resulting in multiple injuries to members of both the groups. The appellants as such members were in possession of the said plot, and as law abiding citizens had instituted Civil Suit No. 108 of 1987 in the Court of the Civil Judge, Junior Division, Narol, applied for and obtained temporary injunction and had gone with the bailiff to have the injunction order served on the opposite party. Their case is that they had entered into an agreement dated August 11, 1979 with the original vendor 230 Babubhai Kansara for the purchase of the disputed plot. The price fixed was Rs. 35 per square yard and Rs. 60,000 were paid as earnest money. They as such members of the society had also paid from time to time by instalments a total amount of Rs.3,50,000 which was equivalent to 30% of the total sale consideration and had been placed in possession of the land by the vendor by a deed acknowledging the receipt of money and mentioning the delivery of possession. After the death of the vendor, his two sons Karam Ali and Iqbal Ali disowned the transaction and started creating obstructions in the enjoyment of the land by the society, as a result of which on March 9, 1987 the society was constrained to institute the aforesaid suit and obtained a temporary injunction, and also a direction from the learned Civil Judge ordering the Chief Bailiff to execute the injunction order on the two sons of the original vendor. They had also intimated the police about the grant of injunction and sought help to prevent breach of peace but the police took no action despite the endorsement made by the Inspector of Police on their application directing P.S.I., Satellite Station to take appropriate action and prevent any untoward incident. As apprehended, the two sons of the original vendor Karam Ali and Iqbal Ali put up armed resistance and in the scuffle both sides sustained injuries. At the time of the incident, the police arrived at the spot and apprehended the appellants The appellants were straightaway produced before the Designated Court within a period of 24 hours after their arrest without receiving the complaint of facts which constitute offences alleged to have been committed or a police report as required under section 14(1). The appellants moved an application for bail but the Designated Court by its order dated March 24, 1987 rejected the same holding that there were no reasonable grounds for it to believe that the appellants were not guilty of an offence under section 3 of the Act apart from various other offences under the Indian Penal Code, 1860. We are informed that the police have now filed a charge sheet against the appellants before the Designated Court for having committed offences punishable under sections 143, 147, 148, 149, 307, 504, 324, 323 and 120B of the Indian Penal Code, section 27 of the Arms Act and sections 3 and 4 of the Act. It would thus be seen that the police invoked the Act as against the appellants although they had taken recourse to their legal remedy by filing a suit and obtained a temporary injunction and accompanied the bailiff to execute the order. They were apprehended and as many as eight of them sustained injuries. Assuming there was a scuffle wherein there was a free fight, the appellants being the owners in possession were entitled to act in self defence. As against the two 231 sons of the original vendor, both of whom are cited as prosecution witnesses, the police have filed a charge sheet for the self same offences except for the offences under sections 3 and 4 of the Act in the Court of the Chief Judicial Magistrate, Narol as a result of which they are liable to be enlarged on bail while the appellants cannot be, due to the constraints on the powers of the Designated Courts to grant bail under section 20(8) of the Act. The Designated Court having refused to grant bail to the appellants, they moved the High Court by way of an application under section 439 read with section 482 of the Code. The High Court by its order dated June 12, 1987 rejected the bail application on the ground that the High Court had no jurisdiction to entertain any such application under section 439 of the Code ar by recourse to its inherent powers under section 482. The decision of the High Court proceeds on the ground that the Act being a special Act and the Designated Court constituted by the State Government under section 9(1) to try the offences under the Act, was not a Court subordinate to the High Court, and further that in view of the provision contained in sub section (1) of section 19 of the Act which provided that an appeal as a matter of right shall lie against any judgment or order of the Designated Court, not being an interlocutory order, to the Supreme Court, and in view of the explicit bar contained in sub section (2) thereof which provided that no appeal or revision shall lie before any Court i.e. including the High Court, there was exclusion of jurisdiction of the High Court in regard to the proceedings before a Designated Court. Hence this appeal by special leave. Facts in the connected special leave petitions which are all directed against the orders passed by different Designated Courts rejecting the applications for bail, are apt to differ from case to case. On the view that we take as to the nature of the function of the Designated Courts in dealing with applications for bail within the constraints of section 20(8), it is not necessary to deal with the facts of these cases in any detail. Broadly speaking, the cases fall into three distinct categories, namely: (1) Cases of communal riots resulting in offences of murder, arson, looting etc. where there are overt acts on the part of persons of one community against the other. (2) Incidents giving rise to acts of physical violence resulting in communal riots due to instigation. (3) Cases connected with trade union activities started at the instance of the management, or at the instance of owners of property to settle private disputes on the allegations that there were acts of physical violence. The statutory provisions bearing on the questions involved may be set out. Sub section (1) of section 3 of the Act which gives a meaning to the 232 expression 'terrorist act ' is in the following terms: "3. (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act. " Sub section (2) thereof reads: "(2) Whoever commits a terrorist act, shall,: (i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine; (ii) in any other case be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. " Sub section (1) of section 4 provides for punishment for disruptive activities and reads: "4.(1) Whoever commits or conspires or attempts to commit or abets, advocates, advises, or knowingly facilitates the commission of, any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. " 233 Sub section (2) thereof gives a meaning to the expression 'disruptive A activity ' and it is as follows: "(2) For the purposes of sub section (1), "disruptive activity" means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, (i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. Explanation For the purposes of this sub section, (a) "cession" includes the admission of any claim of any foreign country to any part of India, and (b) "secession" includes the assertion of any claim to determine whether a part of India will remain within the Union. " Sec. 19 ousts the jurisdiction of the High Court altogether and reads "19.(1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law. (2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Designated Court. " Sub section (8) of section 20 of the Act which has an important bearing on these cases is in these terms: "(8) Notwithstanding anything contained in the Code, no 234 person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." Sub section (9) thereof provides that the limitations on granting of bail specified in sub section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. In support of the appeal and the connected special leave petitions, learned counsel for the appellants and the petitioners, put forth the following submissions, namely: (1) Part III of the Act is 'supplemental ' to the Code and the Code still applies except to the extent that it stands modified by the provisions of the Act, and particularly those contained in Part IV. (2) While section 11(1) creates a special tribunal for trial of offences under section 3 or section 4 of the Act viz. the Designated Courts constituted by the Central or the State Government under section 9(1), the various sub sections of section 14 provide that the procedure and powers of such Designated Courts shall be as specified therein. Particular emphasis is laid upon the provision contained in sub section (3) thereof which reads: " 14(3) . Subject to the other provisions of this Act, a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session . " (3)The 'source of power ' of a Designated Court to grant bail is not section 20(8) of the Act but section 439 of the Code and that section 20(9) only places limitations on such power. This is made explicit by section 20(9) which provides that the limitations on the granting of bail specified in sub section (8) are 'in addition to the limitations under the Code or any other law for the time being in force '. (4) Though the legislature has made an 235 express provision in section 20(7) of the Act which provides that nothing in s.438 of the Code which deals with the power of the High Court or the Court of Session to grant anticipatory bail, shall apply in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, there is no like provision making section 439 of the Code dealing with the power of the High Court or the Court of Sessions to grant bail. A fortiori, Chapter XXXIII of the Code is still preserved as otherwise the Designated Courts would have no power to grant bail. As regards the jurisdiction and power of the High Court to grant bail under section 439 of the Code or by recourse to its inherent powers under section 482, the contention on behalf of the appellants and the petitioners is that Chapter XXXIII of the Code being applicable, the source of power of a Designated Court to grant bail being section 439, the necessary concomitant is that the jurisdiction and power of the High Court to entertain an application for bail on its own under section 439 or by recourse to its inherent powers under section 482, is applicable. The argument is that it is impermissible for the legislature to set up a new hierarchy of Courts different from the one envisaged by the Constitution and byepass the High Court. Under the Constitution the High Court is the repository of all judicial authority within the State. To take away the power of the High Court would be tantamount to strike at the very foundation of an independent judiciary, free from executive control. It is pointed out that section 20(4) of the Act makes section 167 of the Code applicable in relation to a case involving an offence punishable under the Act, subject to the modifications specified therein. (a) thereof provides that reference in sub section (1) of section 167 to 'Judicial Magistrate ' shall be construed as reference to 'Judicial Magistrate or Executive Magistrate or Special Executive Magistrate ', while cl. (b) provides that references in sub section (2) of that section to 'fifteen days ', 'ninety days ' and 'sixty days ' wherever they occur, shall be construed as references to 'sixty days ', 'one year ' and 'one year ' respectively. The effect of the amendment to section 167 by section 20(4) is to invest the Executive Magistrates, who are not subject to the control of the High Court, with an unlimited power to grant police remand or remand to judicial custody without the filing of a challan for indefinite duration from time to time upto a period of one year. It is said that the affect of this virtually means detention without trial. The learned counsel accordingly characterised the Act as 'a piece of draconian legislation ' which makes serious in roads into the rights of the citizens to life and liberty guaranteed under article 21 of the Constitution without the constitutional safeguards enshrined in article 22. However, it was expressly stated 236 before us that the constitutionality of the Act is not under challenge in these cases and that this question is under the consideration of a larger bench of this Court in another case Our attention was particularly drawn to the view expressed by Chandrachud, CJ in delivering the majority opinion in the Presidential reference in Re the Special Courts Bill, 1978 where the Court upheld the Special Courts Bill mainly because of the provision for appointment of a sitting High Court Judge as a Judge of the Special Court as a sufficient safeguard against Executive interference. The learned Chief Justice in the course of his judgment observed: "It is of the greatest importance that in the name of fair and unpolluted justice, the procedure for appointing a Judge of the Special Court, should inspire the confidence not only of the accused but of the entire community. Administration of justice has a social dimension and the society at large has a stake in impartial and even handed justice. " It is pointed out that the Act though patterned on the lines of the instead leaves it to the discretion of the Central Government or a State Government, as the case may be to appoint a person of their choice, to be a Judge of the Designated Court. It is further pointed out that the State Government has under section 9(4) of the Act appointed retired District Judges to be Judges of some of the Designated Courts in the State, constituted under section 9(1). It is apprehended that a retired District Judge would be completely at the mercy of the Executive. Essentially, the submission is that the creation of a Designated Court which is not subject to the control and superintendence of the High Court is detrimental to the constitutional concept of judicial independence. It is apprehended that the entrustment of the power to the Executive Magistrates to grant police remand extending over one year by amendment of sub section (1) of section 167 of the Code was capable of misuse. Our attention was also drawn to the various provisions of the Act which take away the various safeguards provided to an accused as provided in the Code as well as section 25 of the Evidence Act which, according to the learned counsel, offend against article 21 of the Constitution. See: sections 11(2), 14(2), 14(5), 15(1), 16(1), (2) and (3), and 21(2). It is said that the procedure contemplated by article 21 must be right and just and fair, and not arbitrary, fanciful or oppressive. Otherwise, it would not be procedure at all and the requirements of article 21 would not be satisfied. We do not think it necessary to go into these aspects for the constitutionality of the Terrorist & Disruptive Activities (Prevention) Acts, 1985 and 1987 and their provisions is not a question before us. We feel that these questions should best be left open to be dealt with by the Constitution Bench 237 At the very outset, Shri Poti, learned counsel appearing for the State Government with his usual fairness, unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach the High Court under article 226 or article 227 or move this Court by a petition under article 32 for the grant of an appropriate writ, direction or order. It must necessarily follow that a citizen can always move the High Court under article 226 or article 227 or this Court under article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under section 9(1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification, was a fraud on powers and thus constitutionally invalid. As to the merits, the submissions advanced by learned counsel for the State Government proceeded more or less on these lines. Where an enactment provides for a complete procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code. Under section 14(1), the Designated Court has exclusive jurisdiction for the trial of such offences and by virtue of section 12(1), the Designated Court may also try any other offence with which the accused may under the Code, be charged at the same trial if the offence is connected with such other offence. Where there is a special enactment on a specific subject as the Act in question which is a special law, the Act as a special Act must be taken to govern the subject and not the Code in the absence of a provision to the contrary. The legislature by the use of the words 'as if it were ' in section 14(3) endowed a Designated Court with the status of a Court of Session, but the legal fiction must be restricted to procedure alone, that is to say, the procedure for the trial of an offence must be in accordance with the procedure prescribed under the Code for trial before a Court of Session, insofar as applicable. But some meaning must be given to the opening words of section 14(3) 'Subject to the other provisions of the Act '. Where an enactment provides for a complete procedure for the trial of an offence, it is that procedure that must be followed and not the one prescribed by the Code. Our attention was drawn to section 4(1) of the Code which provides that all offences under the Indian Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained therein i.e. in accordance with the procedure prescribed under the Code. Sub section (2) thereof however engrafts an 238 exception to the general rule as to the procedure to be followed for the A trial of offences under any other laws, and it reads: "4(2). All offences under any other laws shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or other vise dealing with such offences". In support of the contention that the procedure to be followed is the special procedure laid down by the Act, reliance is placed on section S of the Code which is in these terms: "(5). Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. " It is submitted that there is no express provision excluding the applicability of section 439 of the Code similar to the one contained in section 20(7) of the Act in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. According to the learned counsel, the source of power of a Designated Court to grant bail is not section 439 of the Code but section 437 which speaks of 'a Court other than a High Court or a Court of Session ' and it, insofar as material, reads as follows: "437(1). When bail may be taken in case of non bailable offence When any person accused of, or suspected of, the commission of any non bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail . " (Emphasis supplied) Before dealing with the contentions advanced, it is well to remember that the legislation is limited in its scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to pro 239 vide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government 's law enforcing machinery fails. As a matter of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482. Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder. There is contrariety between the provisions of the Act and those contained in the Code. Under the Code, the High Court is invested with various functions and duties in relation to any judgment or order passed by criminal court subordinate to it. Those powers may be briefly enumerated, namely, the jurisdiction and power to hear an appeal under section 374 against any judgment or sentence passed by the Court of Session, the power to hear an appeal against an order of acquittal by a criminal court including the Court of Session under section 378, the power to hear a reference as to the validity of. any Act, ordinance or regulation or any provision contained therein made by a criminal court under section 395, the confirmation of a death sentence on a reference by a Court of Session under sections 366 371 and section 392, the power to grant bail under section 439 subject to certain limitations, the inherent power under section 482 to make such orders as may be necessary or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Undoubtedly, the High Court has the jurisdiction and power to pass such orders as the ends of justice require, in relation to proceedings before all criminal courts subordinate to it. The legislature by enacting the law has treated terrorism as special criminal problem and created a special court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences. A grievance was made before us that the State Government by notification issued under section 9(1) of the Act has appointed District & Sessions Judges as well as Additional District & Sessions Judges to be Judges of such Designated Courts in the State. The use of ordinary courts does not necessarily imply the use of standard procedures. Just as the legislature can create a special court to deal with a special problem, it can also create new 240 procedures within the existing system. Parliament in its wisdom has adopted the frame work of the Code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in sections 3(1) and 4(2) and provides for a special procedure for the trial of such offences. Under section 9(1), the Central Government or a State Government may by notification published in the official Gazette, constitute one or more Designated Courts for the trial of offences under the Act for such area or areas, or for such case or class or group of cases as may be specified in the notification. The jurisdiction and power of a Designated Court is derived from the Act and it is the Act that one must primarily look to in deciding the question before us. Under section 14(1), a Designated Court has exclusive jurisdiction for the trial of offences under the Act and by virtue of section 12(1) it may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code. No doubt, the legislature by the use of the words 'as if it were ' in section 14(3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by learned counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code for the trial before a Court of Session, insofar as applicable. We must give some meaning to the opening words of section 14(3) 'Subject to the other provisions of the Act ' and adopt a construction in furtherance of the object and purpose of the Act. The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act. No other construction is possible. The expression 'High Court ' is defined in section 2(1)(e) but there are no functions and duties vested in the High Court. The only mention of the High Court is in section 20(6) which provides that sections 366 371 and section 392 of the Code shall apply in relation to a case involving an offence triable by a Designated Court, subject to the modifications that the references to 'Court of Session ' and 'High Court ' shall be construed as references to 'Designated Court ' and 'Supreme Court ' respectively. 19(1) of the Act provides for a direct appeal, as of right, to the Supreme Court from any judgment or order of the Designated Court, not being an interlocutory order. There is thus a total departure from different classes of Criminal 241 Courts enumerated in section 6 of the Code and a new hierarchy of Courts is sought to be established by providing for a direct appeal to the Supreme Court from any judgment or order of a Designated Court, not being an interlocutory order, and substituting the Supreme Court for the High Court by section 20(6) in the matter of confirmation of a death sentence passed by a Designated Court. Though there is no express provision excluding the applicability of section 439 of the Code similar to the one contained in section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not section 20(8) of the Act as it only places limitations on such power. This is made explicit by section 20(9) which enacts that the limitations on granting of bail specified in section 20(8) are 'in addition to the limitations under the Code or any other law for the time being in force '. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to section 439 of the Code. It cannot be. doubted that a Designated Court is 'a Court other than the High Court or the Court of Session ' within the meaning of section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by section 20(8) of the Act. The controversy as to the power of the High Court to grant bail under section 439 of the Code must also turn on the construction of section 20(8) of the Act. It commences with a non obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. It is quite obvious that the source of power of a Designated Court to grant bail is not section 20(8) of the Act but it only places limitations on such powers. This is implicit by section 20(9) which in terms provides that the limitations on granting of bail specified in sub section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. It there 242 fore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from section 20(8) of the Act. In Balchand Jain vs State of Madhya Pradesh, ; while interpreting a similar provision contained in r. 184 of the Defence and Internal Security of India Rules, 1971, Bhagwati, J. speaking for a three Judge Bench observed: "The Rule, on its plain terms, does not confer any power on the Court to release a person accused or convicted of contravention of any Rule or order made under the Rules, on bail. It postulates the existence of power in the Court under the Code of Criminal Procedure and seeks to place a curb on its exercise by providing that a person accused or convicted of contravention of any Rule or order made under the Rules, if in custody, shall not be released on bail unless the aforesaid two conditions are satisfied. It imposed fetters on the exercise of the power of granting bail in certain kinds of cases and removes such fetters on fulfilment of the aforesaid two conditions. When these two conditions are satisfied, the fetters are removed and the power of granting bail possessed by the Court under the Code of Criminal Procedure revives and becomes exercisable. The non obstante clause at the commencement of the Rule also emphasises that the provision in the Rule is intended to restrict the power of granting bail under the Code of Criminal Procedure and not to confer a new power exercisable only on certain conditions. It is not possible to read Rule 184 as laying down a self contained code for grant of bail in case of a person accused or convicted of contravention of any Rule or order made under the Rule so that the power to grant bail in such case must be found only in Rule 184 and not in the Code of Criminal Procedure. Rule 184 cannot be construed as displacing altogether the provisions of the Code of Criminal Procedure in regard to bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules. These provisions of the Code of Criminal Procedure must be read along with Rule 184 and full effect must be given to them except in so far as they are, by reason of the non obstante clause overridden by rule 184. " 243 The learned Judge placing emphasis on the words 'if in custody ' in r. 184, further observed: "It is an application for release of a person in custody that is contemplated by Rule 184 and not an application for grant of 'anticipatory bail ' by a person apprehending arrest. Section 438 and Rule 184 thus operate at different stages, one prior to arrest and the other, after arrest and there is no overlapping between two provisions so as to give rise to a conflict between them. And consequently, it must follow as a necessary corollary that Rule 184 does not stand in the way of a Court of Session or a High Court granting 'anticipatory bail ' under section 438 to a person apprehending arrest on an accusation of having committed contravention of any Rule or order made under the (Defence and Internal Security of India) Rules, 1971. " Upon that view, the Court in Balchand Jain 's case held that r. 184 of the Defence and Internal Security of India Rules, 1971, does not take away the power conferred on a Court of Session or a High Court under section 438 of the Code to grant anticipatory bail. We have been referred to the decision of R.S. Pathak, CJ speaking for a Division Bench of the Himachal Pradesh High Court in Ishwar Chand vs State of Himachal Pradesh, ILR (1975) HP 569 holding that r. 184 did not affect the jurisdiction and power of the High Court under sections 438 and 439 of the Code which were independent of the power of the special tribunal to try an offence for contravention of an order made under section 3 of the Defence & Internal Security of India Act, 1971. Both these decisions are clearly distinguishable. The view expressed in Balchand Jain 's case is not applicable at all for more than one reason. There was nothing in the Defence & Internal Security of India Act or the Rules framed thereunder which would exclude the jurisdiction and power of the High Court altogether. On the contrary, section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in section 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any Court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court. The Act by section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further, while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Courts would have no power to grant bail, still the source of power is not section 439 of the Code but section 437 being a Court other 244 than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to section 439 it would imply that not only the High Court but also the Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under section 439 is unfettered by any conditions and limitations like section 437. It would run counter to the express prohibition contained in section 20(8) of the Act which enjoins that notwithstanding anything in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied. Lastly, both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence & Internal Security of India Act, 1971. They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary Courts is not to be readily inferred except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under sections 438 and 439 exists. We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under section 439 or under section 482 of the Code. That takes us to the approach which a Designated Court has to adopt while granting bail in view of the limitations placed on such power under section 20(8). The sub section in terms places fetters on the power of a Designated Court on granting of bail and the limitations specified therein are in addition to the limitations under the Code. Under section 20(8), no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody be released on bail or on his own bond unless the two conditions specified in cls. (a) and (b) are satisfied. In view of these more stringent conditions a Designated Court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. Since before granting bail the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of fact, the police report along with the statements in the case diary and other available materials should be closely examined. A prayer for bail ought not to be rejected in a mechanical manner. At the conclusion of the hearing on the legal aspect, Shri Poti, learned counsel appearing for the State Governrment contended, on 245 instructions, that an order passed by a Designated Court for grant or refusal of bail is not an 'interlocutory order ' within the meaning of section 19(1) of the Act and therefore an appeal lies. We have considerable doubt and difficulty about the correctness of the proposition. The expression 'interlocutory order ' has been used in section 19(1) in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court and this Court. One of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V. C. Shukla vs State through C.B.I., , Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contra distinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word 'judgment ' is intended to indicate the final order in trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of section 11(1) of the and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non fulfilment of the conditions laid down in section 20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in section 20(8) which places limitations on the power of a Designated Court to grant bail, but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The Court must interpret the words 'not being an interlocutory order ' used in section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court grant 246 ing or refusing bail. Such an application for bail can always be renewed from time to time. That being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under section 19(1) of the Act, cannot be accepted. Surprisingly enough, a few days after the hearing had concluded and the judgment reserved, the State Government adopted a different stand in another case and contended that an order refusing to grant bail due to non fulfilment of the conditions laid down in section 20(8) of the Act was an interlocutory order. We really fail to appreciate such inconsistent stands being taken by the same government on a question of principle. In view of the stand adopted by the State Government in these cases, we with the assistance of the learned counsel for the parties went through the facts of each case. We regret to find that the Designated Courts have not carefully considered the facts and circumstances and have rejected the applications for bail mechanically. As already mentioned, the cases fall into three broad categories. The facts in Criminal Appeal No. 313 of 1987 have been set out earlier. In Special Leave Petitions Nos. 2369 and 2469 of 1987 the prosecution has been started at the instance of the management of a textile mill in Ahmedabad. The other category of cases have arisen out of communal riots. Normally such cases have to be dealt with under the ordinary procedure prescribed by the Code, unless offences under sections 3 and 4 of the Act are made out. The Designated Courts were under a duty to examine the circumstances closely from this angle. That has not been done. It is, therefore, desirable to set aside the orders passed by the various Designated Courts and remit the cases for fresh consideration. Accordingly, the appeal and the special leave petitions partly succeed and are allowed. While upholding the judgment and order of the High Court dismissing the applications for bail under section 439 of the Code of Criminal Procedure, 1973 we grant leave and set aside the impugned orders passed by the various Designated Courts in the State dismissing the applications for bail and direct them to consider each particular case on merits as to whether it falls within the purview of sections 3 and/or 4 of the Terrorist & Disruptive Activities (Prevention) Act, 1987; and if so, whether the accused in the facts and circumstances of the case were entitled to bail while keeping in view the limitations on their powers under section 20(8) of the Act. Where the Designated Courts 247 find that the acts alleged in the police report or complaint of facts A under section 14(1) do not fall within the purview of sections 3 and/ or 4 of the Act, they shall in exercise of the powers under section 10 of the Act transfer the cases for trial to the ordinary criminal courts. The accused persons who have been enlarged on bail by this Court shall continue to remain on bail until their applications for bail are dealt with by the Designated Courts with advertence to the observations made above. S.L. Appeal & Petitions partly allowed.

The word 'Copy ' occurring in section 419 Of the Code of Criminal Procedure means a certified copy and a petition of appeal filed under that section must, therefore, be accompanied by a certified copy of the judgment or order appealed against. Ram Lal vs Ghanasham Das, A.I.R. (1923) Lah. 150, referred to. Firm Chota Lal Amba Parshad vs Firm Basdeo Mal Hira Lal, A.I.R. (1926) Lah. 404, distinguished. Consequently, where a State Government filed an appeal against an order of acquittal under section 417 of the Code of Criminal Procedure with a plain copy of the judgment appealed against and put in a certified copy of it after the period of limitation prescribed for the appeal had expired and the High Court dismissed the appeal as time barred, that order was correct and must be affirmed.

iminal Appeal No. 23 of 1952. Appeal from an Order dated 18th January, 1952, of the High Court of Judicature at Calcutta (Chunder J.) in Criminal Reference Case No. 110 of 1951. N.C. Talukdar and A. D. Dutt for the appellant. Ajit Kumar Dutta, and section N. Mukherjee for the respondents. March 12. The Judgment of the Court was delivered by BHAGWATI J. This is an appeal under article 134(c) of the Constitution and raises the point whether a single Judge of the High Court of Judicature at Calcutta could bear a reference from an order under sections 431 and 432 of the Bengal Municipal Act XV of 1932. The jurisdiction of a single Judge of the High Court in criminal matters is defined in the proviso to 768 rule 9, Chapter II, Part I of the Rules of the High Court and the relevant portion of the proviso runs as under: "Provided that a single Judge may hear any Ap.peal, Reference, or Application for revision other than the following: (1 )One relating to an order of sentence of death, transportation, penal servitude, forfeiture of property or of imprisonment, not being an order of imprisonment in default of payment of fine. . . . . " A single Judge therefore has no jurisdiction to deal with any reference or application for revision which relates to an order of forfeiture of property, and the question that arises in this appeal is whether the order passed by the learned District Magistrate, Baukura, under sections 431 and 432 of the Bengal Municipal Act, 1932, amounted to an order of forfeiture of property within the meaning of the above proviso. The relevant, facts may be shortly stated as follows. The respondents are the proprietors of several oil mills in the town of Bankura within the Bankura Municipality. The Sanitary Inspector of the Municipality received on 6th March, 1950, information that the Manager of the Sree Gouranga Oil Mill, belonging to the respondents had deposited about 300 bags of rotten, decomposed, unwholesome mustard seeds in the courtyard of the Rice Mill of Sree Hanseswar Maji and about 600 bags of unwholesome mustard seeds in the mill godown of the respondents for sale and for the preparation of oil therefrom for sale. On an application made by him in that behalf the Sub Divisional Officer, Bankura, duly issued a search warrant and the Sanitary Inspector on the same day found in possession of the respondents a huge quantity of mustard seeds which were found to be highly unsound, unwholesome and unfit for human consumption. He seized the said seeds between the 6th March, 1950, and the 8th March, 1950, and after the completion of the seizure asked for written consent of the 769 respondents for destruction of the said mustard seeds which they refused. The Sanitary Inspector therefore kept all the bags thus seized, viz., 951 1/2 bags, in ,the mill godowns of the respondents with their consent. After several proceedings which it is not necessary to mention for the purpose of this appeal, the District Magistrate, Bankura, in M. P. No. 58 of 1950 under sections 431 and 432 of the Bengal Municipal Act on the 14th August, 1951, found that the stock of mustard seeds which was seized on the 6th March, 1950, was on that date and still was unfit for human consumption. But in so far as no oil was coming out of the seeds and the seeds were capable of being used is manure or for cattle food he would not direct their destruction but directed that they should be disposed of by the Commissioners of the Bankura Municipality as manure or as cattle food ensuring before such disposal that the stocks in question bad been rendered incapable of being used as human food. The respondents filed a petition under section 435 of the Criminal Procedure Code before the Additional Sessions Judge, Bankura, against the order of the District Magistrate, for a reference to the High Court. The Additional Sessions Judge held that the seizure of the mustard seeds was illegal and that there was no evidence to show that the seeds in question were deposited in or brought to the places for the purpose of their sale or of preparation of oil for human consumption. He therefore made a reference under section 438 of the Criminal Procedure Code to the High Court for quashing the proceedings. Chunder J. accepted the reference, set aside the order of the District Magistrate and remanded the case for retrial by some other Magistrate, as in the opinion of the learned Judge, the District Magistrate had decided the matter upon his own observations formed during the inspection of the mustard seeds and not on the material in the record. An application was made to a Bench of the High Court and leave was allowed on the point whether Chunder J. had jurisdiction sitting singly to bear the reference in view of the rule cited above. 770 Sri N.C.Taluqdar for the appellants urged that the order made by the District Magistrate, Bankura, under sections 431 and 432 of the Bengal Municipal Act, 1932, was an order for forfeiture of property within the meaning of the proviso to the rule and Chunder J. had no jurisdiction to deal with the reference and his order should be quashed. Section 431 provides: "(1) Where any living thing, article of food, drug seized under section 428 is not destroyed by consent under sub section (1) of section 429, or where an article of food so seized which is perishable is not dealt with under sub section(2) of that section, it shall be taken before a Magistrate as soon as may be after such seizure. (2)If it appears to the Magistrate that any such living thing is diseased or unsound or that any such food or drug is unsound, unwholesome or unfit for human food or for medicine, as the case may be. . . he shall cause the same to be destroyed at the expense of the person in whose possession it was at the time of its seizure, or to be otherwise disposed of by the Commissioners so as not to be capable of being used as human food or medicine Section 432 provides : "When any ' authority directs in exercise of any powers conferred by this chapter, the destruction of any living thing, food or any drug, or the disposal of the same so as to prevent its being used as food or medicine, the same shall thereupon be deemed to be the property of the Commissioners. " The word "forfeiture" is defined in Murray 's Oxford Dictionary: " The fact of losing or becoming liable to deprivation of goods in consequence of a crime, offence, or breach of engagement the penalty of the transgression" or a "punishment for an offence". It was contended that in so far as section 432 provided for the vesting of the condemned food or drug in the Commissioners the owner of the property was divested or deprived of the proprietary 771 rights therein and that the order made by the Magistrate under section 431 (2) was thus an order of forfeiture of the property. This contention in our opinion is unsound. According to the dictionary meaning of the word "forfeiture" the loss or the deprivation of goods has got to be in consequence of a crime, offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an off once. Unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime, offence or breach of engagement it would not come within the definition of for. feiture. What is provided under section 431(2) is the destruction of the food or drug which is unsound, unwholesome or unfit for human food or medicine or the otherwise disposal of the same by the Commissioners so as not to be capable of being used as human food or medicine. The vesting of such condemned food or drug in the Commissioners which is provided by section 432 is with a view to facilitate the destruction or the otherwise disposal of such food or drug by the Commissioners and is in no way a forfeiture of such food or drug by the Municipality. The condemned food or drug by reason of its being found unsound, unwholesome or unfit for human food or medicine cannot be dealt with by the owner. It must be destroyed or otherwise disposed of so as to prevent its being used as human food or medicine. What the Municipal Commissioners are empowered to do therefore is what the owner himself would be expected to do and what is ordered to be done therefore cannot amount to a forfeiture of the property. The order is not a punishment for a crime but is a measure to ensure that the condemned food or drug is not used as human food or medicine. That this is the true position is clear from the pro visions of Chapter XXIV of the Act which provides for penalties. Sections 501 to 504 prescribe penalties for specific offences and section 500 prescribes generally penalties for the several offences therein mentioned. Section 431 however does not figure therein. 100 772 Forfeiture of property is thus not one of the penalties or punishments for any of the offences mentioned in the Bengal Municipal Act. In the relevant provision in the rule of the ' High Court an order of sentence of death, transportation, penal servitude, forfeiture of property or of imprisonment are grouped together. These orders are purely orders by way of penalty or punishment for the commission of crimes or offences and the forfeiture of property mentioned there is no other than the one which is entailed as a consequence of the commission of a crime or offence. In order that such forfeiture of property would bar the jurisdiction of the single Judge it has to be a forfeiture of property which is provided by way of penalty or punishment for the commission of a crime or offence. In spite of his labours Shri N. C. Taluqdar has not been able to point out to us any provision of the Bengal Municipal Act, 1932, which constitutes what is contemplated under section 431(2), a penalty or punishment for the commission of a crime or offence. The offence that the respondent could be charged with is defined in section 421 of the Act and the punishment for that offence provided in section 500 is fine and not forfeiture. We are therefore of the opinion that the order of the District Magistrate, Bankura, under sections 431 and 432 of the Bengal Municipal Act, 1932, dated 14th August, 1951, was not an order of forfeiture of property within the meaning of the proviso to rule 9, Chapter II, Part I, of the Rules of the High Court, and Chunder J. had the jurisdiction to entertain and decide the reference. The result is that the appeal fails and is dismissed. Appeal dismissed. Agent for the appellant : Sukumar Ghose. Agent for respondent: B. B. Biswas.

An order of a District Magistrate under sections 431 and 432 of the Bengal Municipal Act (XV of 1932) for the disposal of an article of food which has been seized under section 428 of the said Act is not an order of forfeiture of property within the meaning of the proviso to rule 9 of Chap. II of Part II of the Calcutta High Court Rules, and a Single Judge of the said High Court has jurisdiction to hear a reference from such an order. Unless the loss or deprivation of property is by way of penalty or punishment for a crime, offence or breach of engagement it would not amount to a "forfeiture" of property.

Appeal No. 461 of 1957. Appeal by special leave from the judgment and decree dated July 5, 1954. of the Punjab High Court in L. P. A. No. 29 of 1953. N. section Bindra and Sardar Singh, for the appellant. P. D. Ahuja and H. P. Wanchoo, for respondent No. 1. 471 1961. March 21. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave from the judgment of the Punjab High Court and arises out of a suit for possession of land brought by Munshi Ram, respondent. The following pedigreetable will be useful in understanding the claim put forward by the respondent: Heman Karori Laghi Maghi Jai Dayal (issueless) Gobind Ata Nanak Chand Santu Munshi Ram (adopted son) plaintiff Hans Raj Salig Kam ( Defdt.) MunshiRam (adopted by Ata) The claim of Munshi Ram was with respect to the property left by Nanak Chand who is his natural grandfather and also Santu. There is no dispute now about the property of Santu and we are concerned in this appeal only with the property of Nanak Chand. Nanak Chand died in 1939. Munshi Ram 's natural father Hans Raj had predeceased Nanak Dhand. Munshi Ram himself was adopted by Ata in 1918 before the death of his natural father Hans Raj which took place in 1920. It will be clear from these dates therefore that Hans Raj never succeeded to the property of his father Nanak Chand and Munshi Ram had been adopted by Ata even before Hans Raj 's death. The case of Munshi Ram was that he was entitled to one half share of the property left by Nanak Chand as his their, according to Zamindara custom. The parties, it may be Mentioned, are Brahmins and Munshi Ram claimed joint possession of the half share of the property left by Nanak Chand on his 472 death. The suit was resisted by Salig Ram (defendant appellant) who is the other son of Nanak Chand. His case was that Munshi Ram was not entitled either according to personal law or the riwaj i am of Amritsar district to any share in the property left by Nanak Chand. The trial court held that Munshi Ram was entitled to succeed to the property left. by, Nanak Chand along with Salig Ram and decreed the suit accordingly Salig Ram went in appeal to the District Judge but failed. He then went in second appeal to the High Court but the second appeal was also dismissed The High Court having refused to grant a certificate the appellant applied to this Court for special leave which was granted; and that is how the matter has come up before us. In questions regarding succession and certain other matters, the law in the Punjab is contained in section 5 of the , No. IV of 1872. Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu law where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as is referred to in cl. (a) thereof. Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to Justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters. The position therefore that emerges is, where the parties are Hindus, the Hindu law would apply in the first instance and whosoever asserts a custom at variance with the Hindu law shall have to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger. As was pointed out by Robertson, J., as far back as 1906 in Daya Ram vs Sohel Singh and others (1), "in all cases under section 5 of the , it lies upon the person asserting that he is ruled (1) 1906 P. R. No. 110. 473 in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary it is only when the custom is established that it is to be the rule of decision. " These observations were approved by the Privy Council in Abdul Hussein Khan vs Bibi Sona Dero and another (1). The same view has been taken by this Court in Ujagar Singh vs Mst. Jeo (2). We have therefore in the first instance to apply Hindu law to the parties to this suit, and it is only when a custom different from Hindu law is proved that rights of the parties would be governed by that custom. Munshi Ram 's case was that he was adopted by Ata according to custom (i.e., in accordance with the mode prevalent in the community for purposes of adoption) during the lifetime of Hans Raj. Thus Munshi Ram having been adopted by Ata would have no right left in the family of his natural father Hans Raj, unless the adoption was in the dvyamushyayana form. It was however never the case of Munshi Ram that the adoption was in dvyamushyayana form and so far as Hindu law is concerned, if it applies to this case Munfshi Ram would not be entitled after the adoption to succeed to the property left by Nanak Chand. But Munshi Ram 's case was that according to Zamindara custom he was entitled to succeed to half of the properties left by Nanak Chand. The question therefore arises: what the Zamindara custom is in the present case. In the plaint the custom was not actually pleaded, though strictly speaking this should have been done. However, the custom that is relied upon is to be found in para. 48 of the Digest of Customary Law in the Punjab by Rattigan at p. 572, 13th Edition. This paragraph appears in section V dealing with "Effect of Adoption on Succession" and is in the following terms: "An heir appointed in the manner above described ordinarily does not thereby lose his right to succeed (1) (1917) L. R. 45 I. A. 10, 13. (2) [1959] SUPP. 2 S.C. R. 781 60 474 to property in his natural family, as against collaterals, but does not succeed in the presence of his natural brothers. " It is not disputed before ,is that para. 48 applies in the case of adoption also; but what is contended on behalf of the appellant is that para. 48 only mentions a custom prevalent throughout the Punjab while the riwaj i am of Amritsar district from which area the parties come also records a custom confined to that area which really governs the parties. It appears that in 1865 the riwaj i am of Amritsar district stated that "an adopted son will not be a co sharer amongst his brothers, in the property left by his natural father", i.e., a son given away in adoption will not inherit in the natural father 's family. We may in this connection refer to Jai Kaur and others vs Sher Singh and others (1), where this Court held that "there is therefore an initial presumption of correctness as regards the entries in the Riwaj i am and when the custom as recorded in the Riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the Riwaj i am should ordinarily prevail except that as was pointed out by the Judicial Committee of the, Privy Council in a recent decision in Mt. Subhani vs Nawab (2), that where, a,% in the present case, the Riwaj i am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it. " As females are not concerned in this case, the entries in the riwaj i am of Amritsar district in 1865, if they conflict with para. 48 of Rattigan 's Digest,, should prevail. On that view Munshi Ram would have no right to succeed in the family of his natural father after he was adopted by Ata. The High Court, however, pointed out that there were decisions of courts which did not accept the riwaj i am of Amritsar district of 1865 as laying down the correct custom and therefore para. 48 of the Digest by Rattigan would still prevail. (1) A.I. R. (2) A.I.R. 1941 P.C. 21. 475 In this connection the High Court relied on Majja Singh and others vs Rain Singh (1). That was however a case of Jats and not of Brahmins and the person who was adopted in that case was an only son. That case would not therefore necessarily override the custom so far as it applies to Brahmins. In any case the position is made clear by the Manual of Customary Law prepared in 1911 12 by Mr. Cralk. The custom recorded in that compilation is that with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even if the latter dies without leaving any other son. The High Court however pointed out that the Brahmin,,; and khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again compiled and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father. The position as it emerges from a comparison of the entries in the riwaj i am of 1865, 1911 12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para. 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that as on given away in adoption was excluded altogether from succeeding in his natural father 's family as recorded in 1911,12. This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911 12 that a son given away in adoption succeeded in the family of his natural father if he had no brothers though the High Court did not notice this part of the answer in the riwaj i am of 1911 12. The conclusion therefore at which we arrive is that amongst Brahmins and (1) 1879 P.R. No. 43 476 Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but, to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the lifetime of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi tam who would be representing his father. The argument on behalf of Munshi Ram is that though for the purpose of representation Munshi Ram would be treated as if he stood in the shoes of his father, the representation could not go further and it could 'not be held that there were two sons of Nanak Chand living it the time of his death, one of whom in the guise of Munshi Ram was adopted away. We cannot accept this 477 argument; and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigan 's Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para. 48 can Munshi Ram succeed to the property of Nanak Chand. We therefore allow the appeal and set aside the decree of the courts below and dismiss the suit of the plaintiff respondent so far as the property of Nanak Chand is concerned. In the circumstances we also order the parties to bear their own costs throughout as the High Court did. Appeal allowed.

M, a Hindu belonging to the Brahmin community in the Amritsar District of Punjab, instituted a suit for the possession of a half share in the property left by his natural paternal grandfather. His father had predeceased him, but another son of his grandfather was alive. He had been adopted away in a different family but he claimed that according to the custom of his community in the district he was entitled to get his share in the estate of his natural grandfather. The based his claim on the principle of representation that he, stepped into the shoes of his natural father. Held, that under section 5 of the , the law applicable to Hindus in Punjab in respect of questions regarding succession and other matters referred to in that section, is Hindu law in the first instance, but where a custom different from Hindu law is proved then the rights of the parties would be governed by that custom; and whosoever asserts a custom at variance with Hindu law has to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger. Held, further, that in the Amritsar district of Punjab amongst Brahmins and Khatri s, a son given away in adoption can succeed to the property of his natural father if there is no other son of the natural father, but if there is another son he cannot succeed. Held, also, that in the present case neither under Hindu law nor under the customary law of Punjab could M succeed to the property of his natural grandfather.

Appeal No. 1192 and 1193 of 1967. Appeal by special leave from the order dated January 13, 1969 of the Punjab and Haryana High Court, at Chandigarh, in L.P.A. No. 6 of 1969. 699 B. Sen and G. D. Gupta, for the appellant. V. C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by GROVER, J. These two appeals by certificate from a judgment of the Allahabad High Court must succeed on the short ground that the provisions of section 4(1) of the Land Acquisition Act, 1894, were not complied with. In C.A. 1192/67 a notification was issued under section 4 of the Act on October 15, 1960 for acquisition of the land in dispute. Under section 17 (4) of the Act the provisions of section 5A were dispensed with. On October 28, 1960 the notification under section 6 was issued. The appellant was directed to be present before the Collector in pursuance of a notice under section 9 on December 4, 1960. On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acqui sition proceedings. The petition, was dismissed by a single judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench. Section 4(1) of the Act is in the following terms "Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be, needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality"; It is common ground that the Collector did not cause public notice of the substance of the notification to be given at convenient places in the locality where the land sought to be acquired was situated. In other words there was no compliance whatsoever with the second part of sub section ( 1 ) of section 4. The law as settled by this Court is that. such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated. We may refer in this connection to Khub Chand & Others vs The State of Rajasthan, & Ors. In that case this Court pointed out that the object is to give intimation to a person whose land is sought to be acquired of the intention of the officer to enter the land. Under section 4(2) such a notice is a necessary condition for the exercise of the power of entry noncompliance with that condition makes the entry unlawful. In State of Mysore vs Abdul Razak Sahib(2) no notices as required by section 4(1)of the Act were published in the locality till after the lapse of about 10 weeks. The question for consideration ' (1) ; (2) C. A. 2361 of 1968 dt. August 11. 700 was whether the notification issued under section 4 was a valid one. This Court held that in the case of a notification under section 4 the law has prescribed that in addition to publication of a notice in the official gazette the Collector must also give publicity: of the substance of the notification in the concerned locality. Unless both these conditions are satisfied section 4 of the Act cannot be said to have been complied with. The purpose behind such a notice was that interested persons should know that the land is being acquired so. as to prefer any objections under section 5 A which confers a valuable right. Learned counsel for the State has, however, contended that according to these decisions it is only when the persons interested can file objections under section 5 A that the, public notice of the substance of the notification under section 4(1) by the Collector would be necessary whereas in the present case the, applicability of the provisions of section 5 A have been dispensed with under section 17(4) of the Act at the same time the notification under section 4(1) was issued. It is wholly unnecessary that the interested parties should have the requisite information of the acquisition proceedings as they are not entitled to file objections under section 5A. We are unable to accept such a contention. In our judgment the provisions of section 4(1) cannot be held to be mandatory in one situation and directory in another. Section 4(1) does not contemplate any distinction between those proceedings in which in exercise of the power under section 17 (4) the appropriate government directs that the provisions of section 5 A shall not apply and where such a direction has not been made dispensing with the applicability of section 5A. It lays down in unequivocal and clear terms that both things have to be simultaneously done under section 4(1), i.e., a notification has to be published in the official gazette that the land is likely to be needed for any public purpose and the Collector has to cause notice to be given of the substance of such notification at convenient places in the locality in which the land is situated. The scheme of section 4 is that after the steps contemplated under sub section (1) have been taken the officer authorized by the Government can do the various acts set out in sub section It is not required under section 17(4) of the principal Act that when a notification under section 4(1) is issued the direction should be made simultaneously if the State Government so desires. Such an order or direction can be made even at a later stage. The effect of the direction made under section 17(4) is that a declaration can be made under section 6 in respect of the land at any time after the Publication of the notification under section 4(1) and thereafter the Collector can take possession. But as mentioned before in a given case the appropriate government may not consider it necessary to take action under section 17(4) simultaneously with the notification under section 4(1) and it may choose to invoke its provisions only at a later stage in view of any urgency that may crop 701 up. Thus the construction of section 4(1) cannot be made to depend upon any action or direction which the State Government may choose to make under section 17 (4) of the principal Act. In our opinion section 4 (1) has to be read as an integrated provision which contains two conditions; the first is that the notification in the official gazette must be published and the second is that the Collector has to cause public notice of the substance of such notification to be given. These two conditions must be satisfied for the purpose of compliance with the provisions of section 4(1). In the above view of the matter the appeals which involve the same point must succeed. They are consequently allowed and the acquisition proceedings in question in both the appeals shall stand quashed. The appellants will be entitled to costs in this Court One hearing fee. S.B.W Appeals allowed.

A notification was issued under section 4 of the Land Acquisition Act on October 15, 1960 for acquisition of the land in dispute. The Collector did 'not. cause Public notice of the substance of the notification to be announced at convenient places in the locality where the land sought to be acquired was situate, as required by the second part of section 4(1). Under section 17(4) of the Act the provisions of section 5A were dispensed with. On October 28, 1960 the notification under section 6 was issued. The appellant was directed to be present before the Collector in pursuance of a notice under Sec. 9 on December 4, 1960. On December 5, 1960 the appellant filed a petition under article 226 of the Constitution challenging the acquisition proceed ings. The petition was dismissed by a single Judge of the High Court whose judgment was affirmed in Special Appeal by the Division Bench. Allowing the appeals, HELD : (i) The law as settled by this Court is that such a notice under second part of section 4(1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated. Under section 4(2) such a notice is necessary condition for the exercise of the power of entry. Non compliance with that condition makes the entry unlawful. The purpose behind such a notice is that interested persons should know that the land is being acquired so as to prefer any objections under section 5 A which confers a valuable right., [699G] Khub Chand and Others vs The State of Rajasthan and Ors. ; and State of Mysore vs Abdul Razak Sahib, C.A. 2361 of 1968 dt. August 11, 1972 referred to. (ii)The construction of S.4(1) cannot be made to depend upon any action or direction which the State Govt. may choose to make under section 17(4) of the principal Act. section 4(1) has to be read as an integrated provision which contains two conditions both being mandatory. , Requirement of public notice in the locality cannot be rendered directly by a notification under section 17(4) dispensing with hearing under Sec. 5A. [700H]

Appeal No. 792 of 1975. (Appeal by special heave from the judgment and order dated the 12th March, 1974 of the Orissa High Court in O.J.C. No. 336 of 1972) B. Sen, B. V. Desai and R.H. Dhebar, for the appellant. Mrs. section Bhandare. M.S.Narasimhan, A.K. Mathur and A. K. Sharma, for respondent No. 1. S.K. Mehta, for Girish Chandra, for respondent No. 2. Gobind Das, B. Parthasarthi for respondent No. 3. 704 The Judgment of the Court was delivered by BEG, J. The appellant before us applied on 14th October, 1961, for a prospecting licence for an area of 833.53 acres in the requisite form 'B ', under rule 9(1) of the Mineral Concessions Rules, 1960, made under Section 13 of the (herein after referred to as the Act). The application was filled in correctly. But a sum of Rs. 24/ only, instead of Rs. 32/ , accompanied the application. It appears that 'the appellant realised the mistake in calculating later and paid the deficit of Rs. 8/ on 28th December, 1961. By way of abundant caution, he made a fresh application also on 26th February, 1962. In the meantime, the respondent No. 1 had applied on 2nd November, 1961, for a prospecting licence for 748.16 acres out of which 272.40 acres were common with those for which the appellant had already applied. No orders were passed disposing of the application of the appellant within 90 days of the making of it. The appel lant treated this omission to be tantamount to refusal of his application, as provided by rule 11 (1 ), and preferred a revision application before the Central Government under Section 30 of the Act. On 20th October, 1964, the Central Government asked the State Government to consider the appli cation of the appellant dated 14th October, 1961, within the next nine months. On 13th January, 1965, the State Govern ment offered the appellant a prospecting licence for an area of 365 acres. On 12th February, 1965, the appellant moved the Central Government for revision of the order making the offer. On 19th March, 1965, the Central Government in formed the appellant that his application was premature since neither nine months had elapsed nor final orders had been passed by the State Government. On 9th May, 1965, the Central Government actually rejected the revision applica tion of the appellant presumably for reasons found in the above mentioned communication. On 22nd June, 1965, the State Government directed the grant of a prospecting licence to respondent No. 1 for an area including 272.40 acres, in dispute. On 7th July, 1965, the State Government again offered the appellant the grant of a licence for 3.65 acres. On 2nd January, 1967, the High Court dismissed the Writ Petition of the appellant filed against the abovementioned order of the Central Government dated 9th May, 1965, reject ing his revision application. On 2nd April, 1970, the State Government again offered the appellant a prospecting licence for an area of 365 acres. On 30th April, 1970, a prospecting licence was actually executed in favour of respondent No. 1 for an area which included the disputed 272.40 acres. The appellant 's objections before the Collec tor were rejected. On 27th May, 1970, the appellant again filed a revision application before the; Central Government against the offer dated 2nd April, 1970, for the third time. by the State Government of the smaller area of 365 acres. On 23rd November, 1970. the respondent No. 1, actually applied for a mining lease. but, on 12th April, 1973, the Central Government accepted the appellant 's objec tion relating to 272.40 acres. Hence. the respondent No. 1 went to the High Court under Article 226 of the Constitu tion. The High Court quashed the order of the Central Government by its order dated 12th March, 1974, on the ground that the original application of the 705 appellant, dated 14th October, 1961, not having been accom panied by the correct fee, was no application at all in the eye of law. Hence on the view taken by the High Court, the appellant, not having complied with mandatory provisions, had not filed any application which could be accepted by the State Government. The High Court took the view that the Central Government 's order dated 12th April, 1973, suffers from a patent error. The appellant having obtained special leave to appeal, the case is now before us. It has to be remembered that the special jurisdiction of the High Court under Article 226 had been invoked by the respondent. The High Court had before it a very detailed statement of reasons for the order of the Central Government in exercise of its powers under Section 30 of the Act. We have also been taken through these reasons contained in the letter dated 12th April, 1973, sent to the appellant. It shows that both the parties between whom the dispute relat ing to 272.4.0 acres of land for grant of a prospecting licence had gone before the Central Government several times, and the matter was not finally decided by the State Government. Even though the State Government may have, according to its own erroneous view disabled itself from granting a prospecting licence to the respondent in respect of disputed 272.40 acres, due to its decision to grant this area to the respondent, yet, as the letter from the Central Government points out, the prospecting licence of the re spondent who was impleaded in the revision proceedings before the Central Government and duly heard on all ques tions, was due to expire on 30th April, 1972. After con sidering the legal position and all the facts and equities of the case, the Central Government correctly held, on the question law before it, that the appellants application before the State Government was a valid one as it had been entertained without objection even if it was not accompa nied, when flied, by the correct amount of fee. In a communication sent, the Central Government stated its rea sons to the appellant as follows: "The question arises whether you were indeed or can indeed be deemed to be the prior application for the area. It has been seen that your application dated 14.10.1961 was not perfect in the sense that fee paid into the treasury fell short of Rs. 8/ . However, the State Government itself by giving a chance to you to rectify this mistake ac knowledged implicity that it had in its hands an application otherwise valid. Therefore, the appropriate date which should be taken into consideration is 14.10.61 and not 28 12 1961, as interpreted by the State Gov ernment. The State Government 's order permit ting you to make good the deficit in the amount of fees originally paid into the treas ury has nothing to do with the submission of the application which was done on 14.10.61. The Stale Government could, if it so wished, have refused the application dated 14.10.61 as being imperfect. But, since it did not do so and permitted the application to remain under consideration, it recognised your right as an applicant. Therefore, the State Govern 706 ment cannot argue that impleaded party Phul chand Agarwal by submitting his application on 2.11.61 becomes a prior applicant". In other words, the Central Government had, correctly in our opinion, relied upon an estoppel against the State Govern ment. After giving the above mentioned reasons, the Cen tral Government considered it fair that the appellant should be. granted a prospective licence in respect of 272.40 acres also over and above the 365 acres already granted to him by the State Government. The operative part of the order passed by the Central Government is: "In the circumstances of the case, the Central Government, in exercise of their revisional powers under Rule 55 of of the Mineral Concessions Rules, 1960, and of all other powers enabling in this behalf, hereby set aside the order of the State Government contained in their letter No. II(E)M. 82/70 3015MG, dated 2.4.1970, and further direct the State Government to grant the overlapping of 272.40 acres to you over and above the area of 365 acres already granted to you." The only question which arises beforeus is whether the order of the Central Government suffers from an error appar ent upon the face of the record so as to furnish a ground for interference by the High Court on the purest of pure technicalities, which, as had been pointed out in the letter sent from the Central Government to the appellant, had ceased to matter. The deficiency in the fees having been duly accepted on behalf of the State Government, it was bound to proceed on the assumption that there was a proper application before it valid from the date of filing it. It was precluded, by its own dealings, from denying the validity of the application. It is not very becoming for governmental authorities, when duties laid down by statutory rules. have not been performed by them, to take shelter behind such technicality for denying a citizen 's rights to have his application considered and decided. Rule 11 (1) of the Rules framed was a recognition of that right so that an applicant for a licence under the rules could approach the Central Government in case the State Government did not pass the required orders within a reasonable time. The Central! Government had passed a very fair order after considering the matters ' before it. We have been taken very laboriously through all the relevant provisions of the Act and the Rules to convince us that the High Court 's view was correct that there was an error apparent upon the face of the record in the view of the Central Government which the High Court had corrected in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. We are unable to detect such on error on the part of the Central Government. On the other hand, we find that the High Court itself committed an error, which seems to us to be very apparent, in holding that an applica tion which had only to be accompanied by the fee would be considered validly filed on the date on which, 707 it was made only if proper fee had been tendered with it when it was filed. A right and reasonable procedure looks to substance rather than form of a transaction in order to determine its nature. The statute and the rules made there under would have said so if the application itself was to be deemed to be void ab initio for non compliance with a par ticular technical requirement if that was the intention behind them. All that we have here is the word 'shall ' used in Rule 9(2). But, this Court has repeatedly held that the use of the word 'shall ' in imposing a duty is not conclusive on the question whether the duty imposed is mandatory or directory. Moreover, that question was only incidentally involved here. It is not the breach of every mandatory duty in performing a prescribed act that could make an action total ly ineffective or void ab initio. The filing of the appli cation is one thing and completion of some annexed duty, which is legally separable, is another unless a statute or a rule provides otherwise. Rule 9 reads: "9 (2) Every such application shall be accom panied by (a) a fee calculated in accordance with the provisions of Schedule II; and (b) an income tax clearance certificate in Form C the from Income tax Officer concerned; and (c) a certificate of approval in Form A or if the certificate of approval has expired, a copy of application made to the State Govern ment for its renewal". ' It is not disputed that all the requirements of the rule, except that a properly calculated fee should have accompanied the application, were fulfilled. Apparently, Rule 10 was also complied with and the application was ,duly received and acknowledged. Rule 10 reads as follows: "10. Acknowledgement of application . (1) Where an application for the grant or renewal of a prospecting licence is delivered personally, its receipt shall be acknowledged forthwith. (2) Where such application is received by registered post, its receipt shall be acknowl edged on the same day. (3) In any other case, the receipt of such application shall be acknowledged within three days of the receipt. (4) The receipt of every such application shall be acknowledged in Form D. The next rule provides: "11. Disposal 0f application for the grant and renewal 0f prospecting licence. (1) An application for the grant of a prospecting licence shall be disposed of within nine months 11 112SCI/77 708 from the date of its receipt and, if it is not disposed of within that period, it shall be deemed to have been refused. (2) An application for the grant or renewal of a prospecting licence shall be made at least ninety days be(ore the expiry of the prospect ing licence and shall be disposed of before the expiry of the licence and if the applica tion is not so disposed of within that period, it shall be deemed to have been refused. (3) The State Government may, for reasons to be recorded in writing and communicated to the applicant, at the time of renewal, reduce the area applied for." Repeated offers of the State Government to the appellant show that it acknowledged the pendency of an application before it so that it offered a reduced area to him. Again, the directions of the Central Government, asking the State Government to consider the application and giving nine months for it implied that there was an application to consider before the State Government. The respondent did not question the validity of the Central Government 's order of 20.10.1964. It seems futile to urge now that there was no application at all of the appellant for the State Gov ernment to consider. Again, rule 13 provides: "13. Refund of fee . (1) 'Where an application for the grant of a prospecting licence is refused or deemed to have been refused under these rules, the fee paid by the applicant shall be refunded to the applicant. (2) Where an applicant for the grant of a prospecting licence dies before the order granting him a prospecting licence is passed, his application for the grant of a prospecting licence shall be deemed to have been rejected and the fee paid by him shall be refunded to his legal representative. (3) In the case of an applicant in ,re spect of whom an order granting a prospecting licence is passed but who dies before the deed referred to in sub rule (1) of rule 15 is executed, the order shall be deemed to have been revoked on occurrence of the death and the fee paid shall be refunded to the legal representative of the deceased". This rule also makes it clear that there is a distinction between an application and the fee which has to accompany it. The fee can be refunded, but, the application made remains. There is no rule whatsoever which rays that failure to submit the correct fee at the time of the filing of the application will make the 709 application void or invalid. Section 19 of the Act, howev er, says clearly : "19. ' Any prospecting licence or mining lease granted, renewed or acquired in contra vention of the provisions of this Act or any rules or orders made thereunder shall be void and of no effect". Hence, it is clear that the Act itself provides what is void and ineffective where that is the intention. It would have been provided at least by the Rules that an application not accompanied by the correct fee is void if that had been the intention behind them. Section 19 attaches voidness only to a grant made without due compliance with all rules. It is nowhere said that the act of making an application will be similarly void for a breach of rules. Another submission made before us is that the grant of a prospecting licence in favour of Phulchand, not having been set aside by the Central Government, the High Court had rightly interfered. In view of the provisions of Section 19 of the Act the prospecting licence in favour of respondent No. 1 was itself void to the extent of an area of 272.40 acres for which a licence had already been properly applied for by the appellant. Unless the appellant 's application had been properly refused, for a valid reason, he could not be denied the benefit of section 11 (2) of the Act. Sec tion 11 (2) reads as follows: "11(2) Subject to the provisions of sub section where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the appli cant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was re ceived later. " Reliance is placed on behalf of the respondent on the conditions for the grant of the licence contained in Rule 14 which does not govern the conditions for filing an applica tion at all. It may be that a licence cannot be granted without making good the deficiency in fee which should accompany the application, but that does not mean that a bona fide application accompanied by an incorrectly calcu lated fee or a fee which is deficient by over sight, could not be made at all, or, if made, must be treated as void or of no effect whatsoever. On this question, the view taken by the Central Government was, in our opinion, correct, just, and proper. On such a view, it is not necessary to discuss any of the cases on the kind of error which could be corrected by the High Court as there was no error of any kind in the Central Government 's order for the High Court to be able to correct it. On the other hand the error, which we consider necessary to correct, is in the High Court 's order. Consequently, we set aside the judgment and order of the High Court and restore those of the Central Government. The parties will bear their own costs. S.R. Appeal allowed.

The District Magistrate of Delhi, "being satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so" ordered the detention of the peti tioners under section 3 of the . The grounds of detention communicated to the petitioners were "that your speeches generally in the past and particu larly on the 13th and 15th August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Mussalmans and thereby prejudice the maintenance 01 public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order. " The petitioners contended that under the Constitu tion the maintenance of public order was not a purpose for which restriction can be imposed on the freedom of 452 speech guaranteed by article 19 (1) and that the grounds commu nicated were too vague and indefinite to enable them to make a representation and the provisions of article 22 (s) of the Constitution were not complied with, and their detention was therefore ultra vires and illegal: Held by the Full Court (KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, S.R. DAs and VIVIAN BOSE JJ.) that though personal liberty is sufficiently comprehensive to include the freedoms enumerated in article 19 (1) and its deprivation would result in the extinction of those free doms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in articles 19, 21 and 22 as to the limitations and conditions subject to which alone they could be taken away or abridged. Consequently, even though a law which restricts freedom of speech and expression which is not directed solely against the undermining of the security of the State or its over throw but is concerned generally in the interests of public order may not fall within the reservation of cl. (2) of article 19 and may therefore be void, an order of preventive deten tion cannot be held to be invalid merely because the deten tion is made with a view to prevent the making of speeches. prejudicial to the maintenance of public order. The deci sions in Brij Bhushan and Another vs The State of Delhi (1) and Romesh Thappar vs The State of Madras(2) are not incon sistent with the decision in A.K. Gopalan vs The State(3). Held per KANIA. C.J., PATANJALI SASTRI and S.R. DAS JJ. (MEHR CHAND MAHAJAN and BOSE JJ. dissenting) As the time and place at which the speeches were alleged to have been made and their general nature and effect,. namely, that they were such as to excite disaffection between Hindus and Muslims were also stated in the grounds communicated, they were not too vague or indefinite to enable the petitioners to make an effective representation and the detention cannot be held to be illegal on the ground that article 22 (8) was not complied with. Per CHAND MAHAJAN and BOSE JJ. (contra) In the absence of any indication in the grounds as to the nature of the words used by the petitioners in their speech es, from which an inference has been drawn against them, the petitioners would not be able fully to exercise their funda mental right of making a representation, and as there were no such indications in the grounds supplied, there was a non compliance with the provisions of el. (5) article 22 and the detention was illegal. The State of Bombay vs Alma Ram Sridhar Vaidya(4) applied.

ivil Appeal Nos. 1856 61 of 1974 etc. From the Judgment and order dated 16.1.1974 of the Andhra Pradesh High Court in Case Referred No 2 of 1977 V.S. Desai, Ms. A. Subhashini and B.B. Ahuja for the Appellant. Y.Ratnakar and D.N. Misra for the Respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals have been preferred by the Revenue against the common judgment of the High Court of Andhra Pradesh answering the following questions in favour of the assessee: "(1) Whether, on the facts and in the circumstances of the case, the incomes arising from the Reserve Fund and the Expenses Account of the Nizam 's Family Trust Deed dated s 10.5.1950 can be aggregated in a single assessment for each of the assessment years 1960 61 to 1965 66? (2) If the answer to the above question is in the affirmative, whether the assessments made under section 148 of the Act for the assessment years 1960 61 and 1961 62 were legal and valid?" By a Deed of Trust dated May 10, 1950 the Nizam of Hyderabad created a Family Trust. A corpus of nine crores in Government securities was transferred to the trustees under that Deed. The corpus was notionally divided into 175 equal units. Five units were to constitute a fund called the 'Reserve Fund ', and 3 1/2 units were to constitute the 'Family Trust Expenses Account". The remaining 166 1/2 units were allotted to the relatives mentioned in the Schedule in the manner provided therein, the number of units allocated to each individual relative being specified there. Two clauses of the Trust Deed hold the centre of the stage in 976 these appeals~. Clause 6 creates a Reserve Fund comprising five equal units of the corpus of the Trust Fund. The trustees hold the Reserve Fund upon trust to apply the income or corpus thereof for any special, unusual, unforeseen or emergency expenses for the benefit of the members of the Settlor 's family specified in the Schedule. Additionally, if the income of the Family Trust Expenses Account is insufficiently meet the charges of collection of the income of the Trust Fund and the remuneration of the trustees and of the Committee of Management and the other costs, charged, expenses and outgoings relating to the Trust, the trustees are enjoined to make good such deficit out of the income or corpus of the Reserve Fund, and for that purpose they may transfer to the Family Trust Expenses Account such sums as may be required. It is further provided that on the death of any of the Settlor 's relatives specified in the Schedule the trustees must set apart out of the Reserve Fund a certain portion calculated in accordance with the directions contained in the clause and to add such portion to the units of the corpus of the Trust Fund allocated to the member specified in the Schedule and to amalgamate the same, and to hold it upon the same trusts as those hereinafter declared and contained of and concerning the unit or units of the corpus of the Trust Fund allocated to such relative of the settlor as aforesaid. ' Clause 7 directs the trustees to hold 3 1/2 equal units of the corpus of the Trust Fund allocated to the Family Trust Expenses Account, and to apply the net income of that Fund to the charges for the collection of the income of the Trust Fund and the remuneration of the trustees and of the members of the Committee of Management and to other costs, charges, expenses and outgoings relating to the Trust. There is a further provision. After all the other Trusts constituted under the Deed have been fully administered and carried out and the corpuses of all such units have been handed over and transferred to the ultimate respective beneficiaries the trustees are enjoined to transfer and hand over the 3 1/2 units comprising the Family Trust Expenses Account to the Settlor 's successor who may be describe as the Nizam of by any other title or rank or designation, and failing such person, to the eldest male descendant in the direct male line of succession of the Settlor accordmg to the rule of primogeniture. For the assessment year 1959 60 and the assessment years prior thereto the incomes accruing to the Reserve Fund and the Family Trust Expenses Account were aggregated in a single assessment made on the trustees of the Nizam 's Family Trust. But thereafter the asses 977 see 's appeals having been allowed by the Appellate Assistant Commissioner of Income tax against the assessments for the years 1955 56 to 1959 60, the incomes of the two Funds were separately assessed for the assessment years 1960 61 and 1961 62, the assessee being described in the one case as the trustees of the Nizam 's Family Trust Reserve Fund, and in the other as the trustees of the Nizam 's Family Trust Expenses Account. Subsequently, the Income tax officer being of opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960 61 and 1961 62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account. Following the same line, he made separate original assessments for the assessment years 1962 63 to 1965 66. On appeal by the assessee, the Appellate Assistant Commissioner relied on an order of the Appellate Tribunal in the Wealth Tax Appeals pertaining to the same trust arrangements and cancelled the assessments for all the years. The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the Appellate Assistant Commissioner was upheld by the Appellate Tribunal and the appeals were dismissed. Upon that, the Revenue obtained a reference to the High Court of Andhra Pradesh on the two questions of law set forth earlier for the assessment years 1960 61 to 1965 66. By its judgment dated January 16, 1974 the High Court answered both the questions in the negative. And hence these appeals. For the subsequent assessment years 1967 68 to 1970 71 the High Court adopted the same view in regard to the first question. The second question did not arise for those assessment years. Special Leave Petition Nos. 4171 to 4174 of 1978 have been filed against the judgment of the High Court in those cases. We grant special leave, and the consequent appeals are also being disposed of by this judgment. The primary question in these appeals is whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizam 's Family Trust can be assessed separately or must be aggregated in a single assessment. It seems to us clear that by the Deed of Trust dated May 10, 1950 the Nizam created a number of separate and distinct Trusts. They were created for specific and distinct purposes, and although the corpus of the Trust Fund vested in the same trustees, the trustees nonetheless held distinct and severable portions of the corpus of the Trust Fund 978 under those separate trusts. That this construction of the document accords with the intention of the Settlor is borne out by the provisions of sub clause (4) of clause 3 of the Trust Deed, which specifically provides that on the death of the Settlor the corpus of the Trust Fund was to be divided or to be treated as notionally divided into the 175 equal units mentioned therein for being allocated to the Settlor 's relatives specified in the Schedule, 166 1/2 units being apportioned between the relatives in the proportion set out, five equal units to constitute the Reserve Fund and the last 3 1/2 equal units to constitute the Family Trust Expenses Account. There is no doubt that separate funds were thus created, even though the division of the original Trust Fund may have been notional. There is also no denying that it is open to a Settlor to constitute two or more distinct trusts by a single document. See Commissioner of Income tax, Bombay vs Manilal Dhanji, , 886. The entire position becomes absolutely clear if regard is had to clause 10 of the Trust Deed which permits the trustees to have separate Trust Deeds made and executed in respect of the different funds carved out of the 175 equal units of the corpus of the Trust Fund. It is also apparent that the objects for which the trustees held the Reserve Fund and the Family Trust Expenses Account are clearly demarcated and there is no overlapping or duplication. There is also no intermingling of the Funds. It is true that if there is a deficit in the Family Trust Expenses Account, a definite portion of the income or corpus of the Reserve Fund has to be transferred to the Family Trust Expenses Account. But the two Funds, remain distinct from each other at all times, The transfer of a portion from one to the other cannot lead to a confusion in the separate identity of the two Trusts. A further indication evidencing the creation of two distinct Trusts is the completely different manner of disposal of the corpus of the two Funds. As regards the Reserve Fund we have seen that on the death of any of the Settlor 's relatives a proportionate share of the corpus of the Reserve Fund must be added to the unit or units of the corpus of the Trust Fund allocated to such members, and the amounts so amalgamated are to be applied in accordance with the terms of the Trust Deed mentioned earlier. In the case of the Family Trust Expenses Account, the corpus of that Fund has to be ultimately handed over to the Settlor 's successor to the dignity of Nizam and failing him to his eldest male descendant in the direct male line of succession in accordance with the rule of primogeniture. We agree with the High Court that the Settlor intended to create 979 separate Trusts in respect of the Reserve Fund and the Family Trust Expenses Account, and that the respective incomes arising from the corpus of those Trusts cannot be aggregated in one single assessment but must be assessed separately. The first question in these Appeals is therefore answered in the negative, in favour of the assessee and against the Revenue. Inasmuch as the answer to the first question is in the negative, the second question does not arise and we need not consider that question in these Appeals. The Appeals are dismissed with costs. M.L.A. Appeals dismissed.

Respondents I and 2 filed a suit against the petitioners/defendants claiming damages of Rs.1000 crores from the petitioners for causing loss to movable and immovable properties of the various Gurdwaras being administered and managed by respondent No. 1 under the provisions of the Punjab Sikh Gurdwaras Act, 1925 during the period from June to September 84. They also sought mandatory injunction directing the petitioners and their principal functionaries to tender unqualified apology before the Sikh Sangat for causing mental, sentimental, social and spiritual setback and also for causing deep sense of injury to the honour and self respect of Sikhs who are law abiding citizens. Besides, an application to sue as indigent persons under order 33, Rule l and 2 of the Code of Civil Procedure was filed. It was alleged in the plaint that on 3rd June, 1984 the Martyrdom day of Shri Guru Arjun Devji, when a large number of devotees came to the Golden Temple complex at Amritsar to commemorate the said occasion the various units of the Armed Forces under the employment of the petitioners as well as Police units under the employment of petitioners and the Government of Punjab with malice launched an attack in the Golden temple complex by resort to indiscriminate and barbaric firing. The defence of the petitioners was that it was an Act of State necessary for the security and integrity of the State and that the action taken was an exercise of sovereign power in respect of sovereign acts. The petitioners in view of the extra ordinary situation prevailing in the State of Punjab in general and in Amritsar in particular moved the present transfer petition under section 25 of the Code of Civil Procedure, aver 473 ring that it is not possible to have a fair trial of the case in Amritsar or other parts of Punjab since the suit is an unusual one and tiled at a critical time in Punjab. The question is whether the ends of justice requires the transfer of the suit from the State of Punjab to any other State. Allowing the petition, the Court, ^ HELD: 1. The power of the Supreme Court to transfer a suit or proceeding from one State to another State is a power which should be used with circumspection and caution but if the ends of justice so demand in an appropriate case, the Court should not hesitate to act. One of the highest principles in the administration of law is that justice should not only to be done but should be seen to be done. [476D E;C] 2. In this case, in view of the nature of allegations regarding some of the respondents who have been added. strong feelings are likely to be roused in some section of community. In such an atmosphere to meet the ends of justice it would be desirable to have the case transferred to a calmer and quieter atmosphere. Justice would be done in such a way. To contend that no extra ordinary atmosphere exist in Punjab would be to contend for an unreality. The suit is also unusual and sensitive and the time is critical. Therefore, the Supreme Court should act by transfering the case outside the State of Punjab to meet the ends of justice. That is an absolute imperative in this case. [476D F] G.X. Francis & ors. vs Banke Bihari Singh & Anr., AIR 1958 SC 309; Hazara Singh Gill vs The State of Punjab, [1964] (4) SCR l; and State of Assam vs Atul Vohra, Transfer Petition No. 21/80 referred to. (The Court directed the case to be transferred to Delhi High Court to be tried by a learned Single Judge on the original side.) [477D]

Appeal No. 183 of 1952. Appeal by special leave from the Judgment and Decree dated the 16th day of February 1950 of the Madras High Court in Second Appeal No. 1826 of 1945 from Original Decree dated the 16th March, 1945, of the Court of District Judge, East Godavari at Rajahmundry in A.S. No. 32 of 1943 arising out of the Decree dated the 31st October, 1942, of the Court of Sub Judge, Rajahmundry in Suit No. 17 of 1940 and O.S. No. 39 of 1939. B. Somayya (K. R. Chaudhury and Naunit Lal, with him) for the appellant. K. section Krishnaswamy Aiyangar, (K. R. Krishnaswamy, with him) for respondents Nos. I to 4. 1955. November 4. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This is an appeal by special leave against the judgment of the Madras High Court in a second appeal which reversed the concurrent judgments of the courts below, and granted a decree 941 in favour of the respondents for partition and possession of 126 acres 33 cents out of a parcel of land of the extent of 503 acres 18 cents in the village of Kalavacherla and of 10 acres 12 cents out of a parcel of land of the extent of 40 acres 47 cents in the village of Nandarada, with mesne profits, past and future. All these lands measuring 543 acres 65 cents were purchased by five co sharers on 5 6 1888 under two sale deeds, Exhibits P and P 1. One of these shares of the extent of about 218 acres was, at the material dates, held in common by two brothers, Rangaraju and Kumara, the former owning 136 acres 45 cents and the latter 81 acres 45 cents. On 19 8 1908 Kumara executed a simple mortgage, Exhibit Q, over 81 acres 45 cents belonging to him for Rs. 1,000 in favour of Nallapparaju, who with his undivided brother, Achutaramaraju, held a share in the two parcels of land aforesaid in Kalavacherla and Nandarada. On 19 7 1909 both Rangaraju and Kumara executed a mortgage, Exhibit A, for Rs. 2,000 over all the 218 acres belonging to them in favour of Achutaramaraju. On 4 6 1910 Kumara again created a mortgage over 81 acres 45 cents belonging to him, Exhibit Q 1 for Rs. 2,500 in favour of Achutaramaraju. On 14 12 1911 Achutaramaraju executed a mortgage for Rs. 14,000 in favour of one Merla Agastayya, Exhibit C, over the properties which he held in full ownership as co sharer, and also the mortgage right which he held over the properties belonging to Rangaraju and Kumara under the three mortgage deeds, Exhibits Q, A and Q 1. On 29 8 1920 Kumara sold the 81 acres 45 cents belonging to him and comprised in the mortgages aforesaid to Achutaramaraju for Rs. 11,000 as per Exhibit G, and thereby the two deeds, Exhibits Q and Q 1 became completely discharged and Exhibit A to the extent of the half share of Kumara. The position then was that Achutaramaraju became the owner of 81 acres 45 cents out of the properties mortgaged under Exhibit A, and continued to be a simple mortgagee as regards the rest of them to the extent of half the amount due therein. By virtue of section 70 of the Transfer of 942 Property Act, the sale under Exhibit G would enure for the benefit of the mortgagee, Merla Agastayya, being an accession to the interest of his mortgagor. On 20 1 1924 the representatives of Merla Agastayya assigned their interests in the mortgage, Exhibit C, to the present appellant, who instituted O.S. No. 25 of 1927 on the file of the court of the Subordinate Judge of Kakinada to recover the amount due thereon by sale of the hypotheca. Achutaramaraju, the mortgagor, and the members of his family were defendants I to 4 in that suit. Kumara was impleaded as the 14th defendant and Rangaraju and his son as defendants 15 and 16. In the plaint, it was alleged that the properties comprised in the mortgage deed, Exhibit C, consisted of the properties belonging to the mortgagors in full ownership as co sharers and also of the mortgage right under Exhibits Q, A and Q 1. Then there was an allegation that defendants I to 4 had themselves purchased the mortgaged properties "towards discharge of the first defendant 's mortgage debts". As a statement of fact, this was not accurate, because the purchase by Achutaramaraju was only of 81 acres 45 cents belonging to Kumara and the re maining properties continued to be held by Rangaraju, and Achutaramaraju was only a mortgagee thereof under Exhibit A. There were the further allegations that defendants 14 to 16 were impleaded as parties because they were in possession of the properties, and that they were the predecessors in title in respect of the properties which were mortgaged under Exhibits Q, A and Q 1. Then there was the general prayer for the sale of the properties. The mortgagors, defendants 1 to 4, entered into a compromise with the plaintiff, while defendants 14 to 16 remained expert. On 31 1 1931 the suit was decreed in terms of the compromise as against defendants I to 4 and ex parte as against defendants 14 to 16, and a final decree was passed on 6 11 1932. On 23 8 1934 the decree holder filed E.P. No. 99 of 1934 praying for the sale of the hypotheca including the properties mentioned in Exhibit A. Defendants 15 and 16 then intervened, and filed an objection to 943 their being sold on the ground that the mortgage had been discharged in 1923, and that the exparte decree against them had been obtained fraudulently. This application was rejected by the Subordinate Judge on 26 8 1935, and an appeal against this order to the High Court, Madras was also dismissed on 1 9 1938. Meanwhile, 163 acres 18 cents out of the properties mortgaged under Exhibit A, of which 81 acres 86 1/2 cents belonged to Rangaraju, were brought to sale on the 14th and 15th April 1936, and purchased by the decree holder himself. The sale was confirmed on 26 6 1936, and possession taken on 15 12 1936. But before possession was taken, on 14 12 1936 Rangaraju and his sons instituted O.S. No. 268 of 1936 in the District Munsif 's court, Rajahmundry for a declaration that the decree in O.S. No. 25 of 1927 had been obtained fraudulently, and that the decree holder was not entitled to execute the decree as against their pro perties. An objection was taken to the jurisdiction of the court of the District Munsif to try this suit, and eventually, the plaint was returned to be presented to the proper court. Thereupon, they instituted on 7 8 1939 the present suit, O.S. No. 39 of 1939 on the file of the District Court, East Godavari for a declaration that the decree in 0. section No. 25 of 1927 was obtained by suppressing service of summons, and was therefore void and could not affect their title to 136 acres 45 cents which were mortgaged under Exhibit A. The suit was transferred to the court of the Subordinate Judge of Rajahmundry, and was numbered as O.S. No. 79 of 1946. In his written statement, the appellant denied that the decree in O.S. No. 25 of 1927 was obtained fraudulently, and contended that the present suit was barred by limitation. He also pleaded that as he had purchased the properties in execution of the decree and obtained possession thereof, the suit which was one for a bare declaration that the decree was void and inexecutable was not maintainable. It must be mentioned that while 81 acres 86 1/3 cents of land belonging to Rangaraju and his sons had been sold on the 14th and 15th April 1936, their remaining properties of the 944 extent of 54 acres 58 1/2 cents were sold after the insti tution of O.S. No. 268 of 1936 in the court of the District Munsif, Rajahmundry. In view of the objections aforesaid, the plaintiffs amended the plaint by adding a prayer that 136 acres 45 cents out of the total of 543 acres 65 cents in schedule A and belonging to them might be partitioned and put in their separate possession. The Subordinate Judge of Rajahmundry dismissed the suit on the ground that no fraud had been established, and that the suit was barred by limitation in so far as it sought to set aside the decree on the ground of fraud. The plaintiffs appealed against this judgment to the District Court of East Godavari, which by its judgment dated 16th March 1945 affirmed the decree of the Subordinate Judge. The plaintiffs then preferred Second Appeal No. 1826 in the High Court, Madras. There, for the first time the contention was pressed that the decree in O.S. No. 25 of 1927 on its true construction directed a sale only of the mortgage rights which Achutaramaraju had over the A schedule properties, and that the sale of the properties themselves in execution of that decree was in excess of what the decree bad directed., and was therefore void, and that the plaintiffs were accordingly entitled to recover possession of those properties ignoring the sale. Satyanarayana Rao, J. who heard the appeal, construed the plaint as sufficiently raising this question and issue (2) (b) as covering this contention, and accordingly directed the District Judge to return a finding on the question as to whether the sale of the properties was warranted by the terms of the decree. The District Judge of East Godavari to whom this issue was referred, held that the decree directed the sale of only the mortgage rights of Achutaramaraju under Exhibit A. and that the sale of the properties themselves was not in accordance with the decree. But he further held that this was an objection relating to the execution of the decree which could be agitated only before the executing court, and that a separate suit with reference to that matter was barred under section 47, Civil 945 Procedure Code. On this finding, the second appeal came up for final disposal before Satyanarayana Rao, J. who agreed with the District Judge that the sale of the properties was not authorised by the decree, and was therefore void. But he declined to entertain the objection that the suit was barred by section 47, Civil Procedure Code, on the ground that it had not been taken in the written statement, and was a new contention preferred for the first time at the stage of second appeal. In the result,, he granted a decree for partition and delivery of 136 acres 45 cents out of the properties mentioned in schedule A to the plaintiffs, and mesne profits, past and future. Against this judgment, the defendant prefers the present appeal, and insists that the suit is liable to be dismissed as barred by section 47, Civil Procedure Code. On behalf of the appellant, it was contended by Mr. Somayya that the question whether having regard to section 47 the suit was maintainable was argued before the learned Judge before he called for a finding, and that it ought to have been therefore considered on the merits, and that, in any event, as it was a pure question of law and went to the root of the matter, it ought to have been entertained. On behalf of the respondents, Mr. Krishnaswami Iyengar vehemently contends that as the objection to the maintainability of the suit based on section 47 was not taken in the written statement, the learned Judge had a discretion whether he should permit the point to be raised for the first time in second appeal or not, and that we should not interfere with the exercise of that discretion in special appeal. The basis on which the suit has now been decreed is that the decree in 0. section No. 25 of 1927 properly construed directed only a sale of mortgage rights under Exhibit A and not of the properties, but it must be conceded that this point does not distinctly emerge on the face of the plaint. It is true that there are allegations therein which might be read as comprehending that question, but they are vague and elusive, and what is more, this contention was not argued either in the court of the 946 Subordinate Judge of Rajahmundry or in the District Court of East Godavari, and it is only in second appeal that the question appears to have been first thought of in this form. Though we are not prepared to say that the allegations in the plaint are not. sufficient to cover this point, we are of the opinion that they are so obscure that it is possible that the appellant might have missed their true import, and omitted to plead in answer thereto that the suit was barred by section 47. Apart from this, it is to be noted that this point does not involve any fresh investigation of facts. Indeed, when the matter was before the District Judge in pursuance of the order of the High Court calling for a finding, counsel on both sides understood it as involving a decision on this point as well, and the argument proceeded on the footing that it was a pure question of law involving no further enquiry on facts. We have therefore permitted the appellant to raise this contention. Mr. Somayya for the appellant does not challenge the finding of the District Court confirmed by the High Court that the decree directed only the sale of the mortgage rights of Achutaramaraju under Exhibit A, but he contends that the sale in execution of that decree of not merely the mortgage rights under Exhibit A but of the properties themselves was excessive execution against which the judgment debtor was entitled to obtain relief by application to the execution court, and that a separate suit with reference thereto would be barred under section 47, Civil Procedure Code. It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under section 47, Civil Procedure Code and not in a separate suit. In J. Marret vs Md. K. Shirazi & Sons(1) the facts were that an order was made by the execution court directing, contrary to the terms of the decree, payment of a certain fund to the decree holder. A separate suit (1) A.I.R. 1930 P.C. 86. 947 having been instituted by the judgment debtor for recovery of the amount on the ground that the payment was not in accordance with the decree, it was held by the Privy Council that the action was barred under section 47. A case directly in point is Venkatachalapathy Aiyen vs Perumal Aiyen(1). There, the suit was to enforce a mortgage which related both to properties held in ownership by the mortgagor and mortgage rights held by him. In execution of the decree passed therein, the properties themselves and not merely the mortgage rights were sold. The judgment debtor then sued for a declaration that what was sold was only the mortgage right and to recover possession of the properties. It was held that such a suit was barred under section 47. Vide also the decisions in Biru Mahata vs Shyama Charan Khawas(2), Abdul Karim vs Islamunnissa Bibi(3) and Lakshmi narayan vs Laduram(4). The position is, in our opinion, too well settled to be open to argument, and it must accordingly be held that the present suit is barred under section 47, Civil Procedure Code. That, however, does not conclude the matter. Section 47, clause (2) enacts that "the Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding. . . Under this provision, this Court has the power to treat the plaint presented on 7 8 1939 as an application under section 47 provided that on that date an application for the relief claimed was not barred by limitation, and provided further that the court in which it was filed was competent to execute the decree. On the question of limitation, the relevant dates are the 14th and 15th, April 1936, when 81 acres 861 cents belonging to the plaintiffs were sold, and 15th December 1936 when possession was taken thereof through court. As regards the remaining properties, the exact date on which they were, sold does not appear on the record, but it is sufficient for the present purpose that it was subsequent to the institution of O.S. No. 268 of 1936 on 2,0.4 (1) (2) Cal. (3) All. 339. (4) [1931] A.I.R. 1932 Bom. 120 948 the file of the District Munsif 's court, Rajahmundry, which was on 14 12 1936. Now, the point for determination is whether the plaint was barred by limitation either under article 165 or article 166 of the Indian Limitation Act, if it is treated as an execution application presented. on 7 8 1939, or whether it was in time under article 181. Under article 165, an application by a person dispossessed of immovable properties and disputing the right of the decree holder or purchaser at an execution,sale to be put in possession must be filed within 30 days of dispossession. If this is the article applicable to the present proceedings, then it must be held that the plaint treated as an execution application was filed out of time. In Vachali Rohini vs Kombi Aliassab(1), a Full Bench of the Madras High Court has held, dissenting from the view previously ex pressed in Ratnam Aiyar vs Krishna Doss Vital DSS(2) and following Abdul Karim vs Mt. Is amunnissa Bibi (3), that this article applies only to applications for being restored to possession by persons other than judgment debtors, as under Order XXI, rule 100, Civil Procedure Code and that applications by judgmentdebtors claiming relief on the ground that their properties had been erroneously taken in execution of the decree are not governed by it. This view was approved and followed in Rasul vs Amina (4) and Bahir Das vs Girish Chandra(1). We are of the opinion that the law has been correctly laid down in the above decisions, and that in accordance therewith, the present proceedings are not barred by article 165. Coming next to article 166, an application by a judgment debtor to set aside a sale in execution of a decree has, under that article, to be filed within 30 days of the sale. If the present proceedings are governed by this article, there can be no question that they are barred by limitation. But then, there is abundant authority that article 166 applies only when the sale is one which has under the law to be 2,0.4 (1) Mad. (2) Mad. (3) All. 339 (4) Bom. (5) [1922) A.I.R. 1923 Cal. 949 set aside as for example, under Order XXI, rules 8990 and 91, but that it has no application when the sale is inoperative and void. In Seshagiri Rao vs Srinivasa Rao(1), the appellant was a party to the suit, but the decree had exonerated him from liability. In execution of the decree, his three fourths ' share in the properties was sold on 26 1 1910 and purchased by the decree holder and possession delivered to him on 16 12 1910. The appellant then filed a suit on 25 7 1911 to set aside the sale on the ground that it was in contravention of the decree and therefore void. An objection having been taken by the defendant that the suit was barred under section 47, the court, while upholding the same, held that the plaint could be treated as an application under that section if it was in time as an execution application, and the question arose for decision whether the application was governed by article 166 or article 181 of the Indian Limitation Act. It was held that as the sale was a nullity, it had not to be set aside under the law, and therefore the article applicable was article 181 and not article 166. This statement of the law was ap proved by a Full Bench of the Madras High Court in Rajagopalier vs Ramanujachariar. A similar decision was given in, Manmothanath Ghose vs Lachmi Devi(1), wherein it was observed by Page, J. that the sale being void need not have been set aside at all, and the order to be passed was "in substance merely a declaration that the sale was null and of no effect". The question whether an application by a judgmentdebtor for setting aside a sale on the ground that there was excessive execution and that the sale of his properties was in consequence void was governed by article 166 or article 181 came up directly for consideration in Nirode Kali Roy vs Harendra Nath(1). In holding that the application was governed by article 181, B. K. Mukherjea, J., (as he then was) observed that "article 166 must be confined to cases where the sale is voidable only and not void when the execution sale is a nullity, if a party files an application under (1) Mad. 813. (2) [ Mad. 288. (3) Cal 96. (4) I.L.R. , 950 section 47 to have it pronounced a nullity or for setting it aside for safety 's sake to avoid future difficulties, the proper article would be article 181 and not article 166 of the Indian Limitation Act". The decisions in Seshagiri Rao vs Srinivasa Rao(1) and Rajagopalier vs Ramanujachariar(2) were again followed in Ma We Gyan vs Maung Than Byu(3), wherein it was held that if the execution sale was void, it was not necessary for the applicant to have it set aside, and that even if there was such a prayer, that would not affect the real nature of the application which was really "for an order directing the respondent to deliver property on the ground that there was no valid sale". We are in agreement with these decisions, and hold that when a sale in execution is inoperative and void, an application by a judgment debtor to have it declared void and for appropriate reliefs is governed by article 181 and not article 166. On the findings of the courts below that the decree in O.S. No. 25 of 1927 properly construed authorised only the sale of the mortgage rights of Achutaramaraju under Exhibit A and not the lands which were the subject matter of that mortgage, the respondents were entitled to apply to the court for delivery of possession of the properties wrongly sold through process of court and delivered to the appellant, and such an application would be governed by article 181. Then, there is the further question whether applying article 181, the plaint presented on 7 8 1939 was within time under that article. As already stated, 81 acres 581 cents were sold on the 14th and 15th April 1936. If the starting point of limitation is the date of sale, then the application must be held to be barred, unless the period during which the suit was pending in the court of the District Munsif, Rajahmundry, is deducted under section 14 of the Indian Limitation Act. But if limitation is to be reckoned from the date of dispossession, then the application would clearly be in time. Under article 166, an application to set aside a sale must be presented within 30 days thereof. (1) Mad. 313. (2) (1923] I.L.R. 47 Mad. (3) A.I.R. 1937 Rang. 951 But if the sale in question was void, and for that reason article 166 becomes inapplicable, then the date of the sale must vanish as the starting point of limitation, as it has no existence in law. It is not until the purchaser acting under colour of sale interferes with his possession that the person whose properties have been sold is really aggrieved, and what gives him right to apply under article 181 is such interference or dispossession and not the sale. As observed in Ma We Gyan vs Maung Than Byu(1), such an application is really one for an order for redelivery of the properties wrongly taken possession of by the purchaser. If that is the correct position, the right to apply arises by reason of dispossession and not of sale, and the starting point for limitation would be the date of dispossession. It was so held in Chengalraya vs Kollapuri(2). There, the properties of a party to the suit who had been exonerated by the decree were sold in execution of that decree on 8 1 1918 and purchased by the decree holder. It was found that lie took actual possession of the properties in 1919. On 23 11 1921 the representatives in interest of the exonerated defendant commenced proceedings to recover possession ,of the properties from the decree holder purchaser on the ground that the sale under which he claimed was void. It was held that the proper article of limitation applicable was article 181, and that time commenced to run under that article from the date not of sale but of actual dispossession, and that the proceedings were accordingly in time. We agree with this decision, and hold that an application by a party to the suit to recover possession of properties which had been taken delivery of under a void execution sale would be in time under article 181, if it was filed within three years of his dispossession. Therefore, there is no legal impediment to the plaint filed on 7 8 1939 being treated as an application under section 47, on the ground that it is barred by limitation. The next question for consideration is whether the present suit was filed in a court which had jurisdiction to execute the decree in O. section No. 25 of 1927. (1) A.I.R. 1937 Rang. (2) A.I.R. 1930 mad. 12. 952 That was a decree passed by the Subordinate Judge of Kakinada, whereas the present suit was filed in the District Court, East Godavari to which the court of the Subordinate Judge of Kakinada is subordinate. Section 38, Civil Procedure Code provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The District Court of East Godavari is neither the court which passed the decree in O.S. No. 25 of 1927 nor the court to which it had been sent for execution. But it is common ground that when the present suit was instituted in the District Court, East Godavari, it had jurisdiction over the properties, which are the subject matter of this suit. It is true that by itself this is not sufficient to make the District Court of East Godavari the court which passed the decree for purpose of section 38, because under section 37, it is only when the court which passed the decree has ceased to have jurisdiction to execute it that the court which has jurisdiction over the subject matter when the execution application is presented can be considered as the court which passed the decree. And it is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another court. Vide Seeni Nadan vs Muthuswamy Pillai(1) Masrab Khan vs Debnath Mali(1) and Jagannath vs Ichharam(3). But does it follow from this that the District Court, East Godavari has no jurisdiction to entertain the execution application in respect of the decree in O.S. No. 25 of 1927 passed by the court of the Subordinate Judge, Kakinada? There is a long course of decisions in the High Court of Calcutta that when jurisdiction over the subjectmatter of a decree is transferred to another court, that court is also competent to entertain an application for execution of the decree. Vide Latchman vs Madan Mohun (4), Jahar vs Kamini Devi(1) and Udit Narayan vs Mathura Prasad(6). But in Ramier vs 2,0.3 (1) Mad. 821. F.B. (2) I.L.R. (3) A.1 R. (4) Cal. (5) (6) Cal. 974. 953 Muthukrishna Ayyar(1), a Full Bench of the Madras High Court has taken a different view, and held that in the absence of an order of transfer by the court which passed the decree, that court alone can entertain an application for execution and not the court to whose jurisdiction the subject matter has been transferred. This view is supported by the decision in Masrab Khan vs Debnath Mali(1). It is not necessary in this case to decide which of these two views is correct, because even assuming that the opinion expressed in Ramier vs Muthukrishna Ayyar(1) is correct, the present case is governed by the principle laid down in Balakrishnayya vs Linga Rao(1). It was held therein that the court to whose jurisdiction the subject matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains an execution appli cation with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings. That precisely is the position here. We have held that the allegations in the plaint do raise the question of excessive execution, and it was therefore open to the appellant to have raised the plea that the suit was barred by section 47, and then, there could have been no question of waiver. We have, it is true, permitted the appellant to raise the contention that the present suit is barred by section 47, and one of the reasons therefor is that the allegations in the plaint are so vague that the appellant might have missed their true import. But that is not a sufficient ground for relieving him from the consequence which must follow on his failure to raise the objection in his written statement. We agree with the decision in Balakrishnayya vs Linga Rao(,), and hold that the objection to the District Court enter taining an application to execute the decree in 0. section No. 25 of 1927 is one that could be waived and not (1) Mad. 801. (2) I.L.R. (3) I.L.R. 954 having been taken in the written statement is not now available to the appellant. There is thus no legal bar to our treating the plaint presented by the respondents on 7 8 1939 as an execution application under section 47, and in the interests of justice, we direct it to be so treated. But this should be on terms. We cannot ignore the fact that it is the gross negligence of the respondents at all stages that has been responsible for all the troubles. They did not appear in the suit, and put forward their rights under Exhibit A. They intervened at the stage of execution, but their complaint was mainly that the ex parte decree had been obtained by fraud, a plea which has now been negatived. Even in this suit. they did not press the plea on which they have succeeded until they came to the High Court. Under the circumstances, we think it just that they should be dep rived of all claims for mesne profits down to this date. In the result, treating the plaint as I an execution application, we direct that the properties mentioned in schedule A to the plaint be partitioned and the respondents put in possession of 126 acres 33 cents in Kalavacherla village and of 10 acres 12 cents in Nandarada village in proceedings to be taken in execution of this order. The respondents will be entitled to their share of the net income attributable to 136 acres 45 cents aforesaid from this date down to the date on which they are put in separate possession thereof. Subject to the modification of the decree of the court below as stated above, this appeal will stand dismissed. The parties will, however, bear their own costs throughout.

Section 2(o) of the Restrictive Trade Practices Act, 1969 defines "restrictive trade practice" to be a trade practice which tends to bring about manipulation of prices or conditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or re strictions. Section 33 provides that any agreement relating to a restrictive trade practice falling within one or more of the categories (a) to (I) specified in sub s.(1) thereof shall be registered. Section 37 enacts that the Monopo lies and Restrictive Trade Practices Commission may inquire into any restrictive trade practice, whether the agreement relating thereto had been registered under section 35 or not. Under section 38 when the Commission finds that such re strictions are necessary or justified, in the circumstances mentioned in the section, it may permit such restrictions. The appellant is a manufacturer of heavy and medium commercial vehicles. The appellant enters into an agreement with dealers in regard to sale of its vehicles. Clause 1 (a) of the agreement provides that a dealer shall buy from the Regional Sales Office of the company a new Tata diesel truck for resale within the territory described in accord ance with the provisions of the agreement. Clause (b) provides that the agreement shall not preclude the company from entering into any dealership agreement with any other person or persons within the said territory. Clause 3 prohibits the dealer from selling the vehicles either di rectly or indirectly to any person outside the territory. Clause 6(a) provides that the dealer shall maintain an organisation for the sale of the vehicles in accordance with the directions of the appellant. Clause 14 prohibits the dealer from handling or selling vehicles manufactured or supplied by any other company. In a petition under section 10(a)(iii) of the Act, the Regis trar of the Restrictive Trade Practices alleged that cls. (1) and (3) of the agreement between the appellant and its dealers provided for territorial restrictions or allocation of areas or market, cl. (6) provided for resale price main tenance, cl. 14 provided for exclusive dealership and all these clauses of the agreement showed that the appellant was indulging in restrictive ' trade practices relating to allo cation of territories or areas among its dealers and that the appellant was not willing to abandon the restrictive trade practices. The Commission held inter alia. that cls. (1) and (3) of the agreement. constituted restrictive trade practices and, therefore, void. It was contended on behalf of the respondent that irrespec tive of the injurious or beneficial consequences of a trade practice which may restrict competition, an agreement may fall within the definition of that term in section 2(0) of the Act. An injurious or beneficial result Of the restriction is relevant only for purposes of section 37 and section 38 and not for the purposes of section 33. Allowing the appeal, HELD: The agreement in the present case was not within the vice of restrictive trade practice and was not registra ble. 686 (1) An agreement will be registrable when it will have both the effect of restricting competition within the meaning of section 2(0) and also deal with the subject matter described in sections 33(1)(a) to (I). A practice which is not restrictive under section 2(0) of the Act cannot be a restrictive 'trade practice only because of cls. (a) to (1) of section 33(1). Section 33 does not provide statutory illustrations to section 2(0) of the Act but only enumerates some types of trade practices which, if they are restrictive within section 2(0), require registration. [693 F G] (2) The definition of restrictive trade practice is an exhaustive and not an inclusive one. The decision whether a trade practice is restrictive or not has to be arrived at by applying the rule of reason and not on doctrine that any restriction as to area or price will per se be a restrictive trade practice. The question in each case is whether the restraint is such as regulates and thereby promotes competi tion or whether it is such may suppress or even destroy competition. To determine this question three matters are to be considered, namely, (1) what facts are peculiar to the business to which the restraint is applied, (2) what was the condition before and after the restraint was imposed, and (3) what was the nature of the restraint and what was its actual and probable effect. [693 D F] (3) When the authorities under the Act want to challenge any agreement or any practice as a restrictive trade prac tice, it has to be established that it is a restrictive trade practice within the definition of section 2(0). If it is found that it is a restrictive trade practice, it has to be registered under s 33. It is only after an agreement had been registered that there is an enquiry under Chapter VI of the Act. This enquiry under section 37 is to find out whether a restrictive trade 'practice is prejudicial to the public interest. [692 H, 693 A] (4) The two terms of restriction on dealers, namely, one confining sales within the territory and .t_he other confin ing dealers to dealing in only the appellant 's vehicles are not prejudicial to public interest. The territorial re striction is also in public interest and the Commission was in error in thinking that it was not so. [701 C D] In the instant case, the supply of commercial vehicles is far below the demand and the gap between supply and demand is growing. The vehicles of the appellant were in great demand not only in the country but outside the country as well. Clauses relating to territorial restric tion do not constitute 'restrictive trade practice because the domestic market is spread all over the country, to meet the needs of the users of vehicles the appellant has a countrywide network of dealers who maintain service sta tions, workshops, requisite equipment, machinery and trained personnel. The appellant ensures that the vehicles are only sold by dealers who have the requisite facilities and organisation to give after sales service. The appellant gives a warranty in respect of the vehicles. A geographical network is natural to the industry which the appellant has set up. The appellant has zonal offices throughout the country. If the territorial restriction is removed, there will be a tendency for person to book orders in all areas thus starving the consumers of a particular area of their equitable share and disrupting the flow of vehicles in both areas. If the dealer is not assumed of a steady demand in his territory he may have no incentive or may not find it economic to organise proper after sales service. Some of the dealers have even maintained mobile service vans. [694 H, 695 A] The exclusive dealings of the appellant do not impede competition but promote it. Such dealings lead to special isation and improvement in after salesservice. The exclu sive dealership agreements do not restrict distribution in any area or prevent competition. By making its dealers exclusive, it cannot be said that there is prevention, distortion or restriction of competition in the territory in which the dealer operates. Any manufacturer of vehicles similar to those of the appellant is also free to appoint dealers of its choice in the Same territory covered by the appellant 's dealers. The channels for outlet for vehicles have not been blocked. [699 F G] 687 When there is acute scarcity of the goods and there is no possibility of dealers selling the product at less than the permissible price, it would be irrational to talk of territorial limits restricting competition. Territorial restriction promotes competition between the different manufacturers in every part of India. [700 B C] Clauses (1) and (3) are in the interest of the consumer and ensure an equal distribution as far as possible of the goods at a fair price. Clauses (6) and (14) do not amount to a restriction in competition because other manufacturers could appoint other persons to deal in their commercial vehicles. It is also in public interest to see that vehi cles of other manufacturers are sold in the same territory by other dealers. [701 B C]

ivil Appeal No. 4447 of 1989. From the Judgment and Order dated 28.4. 1989 of the Delhi High Court in C.W.P. No. 3090 of 1987. Kapil Sibal, Manoj Prasad and Dalveer Bhandari for the Appellant. F.S. Nariman, Soli J. Sorabjee, H.N. Salve and K.J. John for the Respondents. The following Order of the Court was delivered by VENKATACHALIAH, J. The New Delhi Municipal Committee (NDMC) seeks special leave to appeal to this court from the order dated 28.4. 1989, of the High Court of Delhi in Civil Writ Petition 3090 of 1987. In the writ petition, Statsman Ltd., and its Managing Director, Respondents 1 and 2 respec tively herein, sought to impugn the decision of the NDMC dated 18.2. 1987, declining to sanction the Revised Plans for the construction of "Statesman House" a high rise building on plot No. 148, Barakhamba Road New Delhi, of which the first respondent is the lessee. The High Court allowed the writ petition and directed the NDMC to convey its formal sanction of the building plans on or before the 5th day of May, 1989. The NDMC assails the decision of the High Court on grounds, 596 principally, that the plans for the multi storeyed high rise building, as proposed by Statesman Ltd., did not, in the matter of the fire safety requirements, accord with the mandatory requirements of the Statutory Building Bye laws promulgated under the Punjab Municipal Act 1911, in relation to the Union territory of Delhi and that the proposed build ing did not also provide for a "podium/pedestrian walk way" made mandatory by the Zonal Development Plan for Zone D 1 (viz. Connaught Place Area) approved by the Central Govern ment on 30th April 1966 in No. 21023(7)66 UD under Section 9(2) of the Delhi Development Act 1957. We have heard Sri Kapil Sibal learned Senior Advocate for the NDMC and Sri Nariman and Sri Soli J. Sorabjee learned Senior Advocate for the Statesman Ltd and its Manag ing Director. Special Leave is granted. Respondent No. 1, a publisher of Newspapers, holds a lease in perpetuity from Government of the plot No. 148, Barakhamba Road, New Delhi. In the year 1980 Respondent No. 1 sought for, and obtained, permission from the Land Devel opment Officer, to erect a high rise building of an area of 1,62,000 square feet and paid Rs.63,40,918 as betterment levy. On 4.5.1982 it applied for, and on 29.8. 1980 ob tained, sanction from the NDMC of its building plans, valid for 2 years. The sanction was revalidated for a further period of two years. In June 1985, however, there was, it would appear, prohibition on high rise structures. But this prohibition, in relation to Connaught Place area, was lifted on 18.7. On 29.12. 1986 Respondent No. 1 submitted Revised plans incorporating therein substantial changes in the plans necessitated, as it was claimed, by the changing require ments of printing technology and the plans as earlier sanc tioned did not meet these altered requirements. The new building, as envisaged by the revised plans, would accommo date the printery of the Respondent 1, its offices and other offices and business accommodation. On 7.1. 1987 the appel lant forwarded the Revised plans to the Delhi Urban Art Commission (DUAC) in compliance with the requirements of Section 12 of the Delhi Urban Art Commission Act 1973 which envisages that, notwithstanding anything contained in any other law for the time being in force, every local body shall, before according approval in respect of any "building operations" or "development proposals" refer the same to the DUAC for its scrutiny. Section 12 further provides that the decision of the DUAC in that behalf shall be binding on such local 597 body. The DUAC did not promptly scrutinise the plans but engaged itself in some correspondence with the NDMC as also with the Ministry of Urban Development, Government of India, seeking what it referred to as the "requisite clarifica tions", "clear cut finalised policy" and "guidelines" for it to be able to process the plans. However, by communication dated 18.2. 1987, the NDMC in exercise of power under Section 193(3) of the Punjab Municipal Act, 1911, rejected the plans, assigning 28 rea sons for the rejection. On 14.5. 1987, the Architect of First Respondent claiming to have subsequently complied with or clarified the points on which the rejection was based, resubmitted the plans. On 26.5. 1987, the Architects wrote to NDMC to reconsider its decision dated 18.2. 1987, in the light of the rectifications effected. However, no positive response having emanated from the NDMC Respondents 1 & 2, on 27.10.1987, filed the Writ petition in the High Court for an appropriate order directing the DUAC and the NDMC to "forth with deal with the application for grant of sanction". Sometime in March 1988, the Chief Fire Officer, Delhi Fire Services, and the Deputy Commissioner of Police (Traf fic), New Delhi, were impleaded to the proceedings. During the pendency of the proceedings in the High Court, the DUAC which had earlier considered the plans to be 'conceptually unsatisfactory ' took a decision to approve the plans. So did the Chief Fire Officer who, by his communication dated 9.3.1988, gave clearance to the building plans in relation to the Fire safety precautions. The High Court considered the objection raised by the Deputy Commissioner of Police (Traffic) as unrelated to the bye laws as applicable to the situation and held that the objection from that source should not interdict the sanction of plans by the NDMC. During the pendency of the proceedings, the High Court required the parties to sort out their differences. On 9.12. 1988, the High Court had occasion to say: " . . We have no doubt that the NDMC will grant the final approval without wasting any further time. In case the meeting of the Building Plans Committee of NDMC is not sched uled to be held within two weeks, the NDMC will so arrange that a special meeting is held so that the matter is not delayed any further. Case to be listed before Court for final orders and disposal on February 3, 1989. In the course of the order dated 28.4.1989 finally dis posing of 598 the writ petition, the High Court after referring to what is considered to be a co operative attitude of the DUAC and other authorities, however, had this to say of the NDMC: "However, to our surprise on the final date of arguments, that is, on 31.3. 1989 the NDMC changed its counsel and the Standing Counsel for NDMC appeared instead of Mr. H.P. Sharma, advocate who had been appear ing throughout . . " "But surprisingly NDMC was not willing to take a decision and continued to raise frivo lous objections for reasons best known to it. Inspite of the fact the clearance had been granted by Urban Art Commission as also by all other Authorities the sanction was not con veyed and was withheld for no reasons. This attitude of NDMC is beyond our understanding. Since I have come to the conclusion that no objection remains from any Authority I am of the opinion that non sanction of the plans on the part of the NDMC is absolutely unjustified and cannot be supported by any reason whatso ever. " The High Court was persuaded to the view that NDMC 's disinclination to accord sanction to the plan was unjusti fied; that whatever reservations it had had as to the ade quacy of the fire safety measures, as envisaged in the Building designs, were allayed by the Chief Fire Officer 's clearance and held that, thereafter, there was no impediment to the sanction. The High Curt, accordingly, directed the NDMC: " . . to convey its formal sanction of the building plans and release the same to the petitioner Company on or before the 5th day of May, 1989 . . " 5. Before us, Appellant NDMC has aired a serious griev ance both against the validity of the reasoning of and conclusion reached by the High Court as also the manner of the conduct of proceedings which were, according to the appellant, initially more in the nature of efforts directed towards the resolution of the dispute by mutual negotiation than by adjudication, but acquired an adjudicative complex ion with such suddenness that appellant was denied a reason able opportunity of elaborating on the substantial issues, of serious public importance pertaining, as they did, to a vital area of fire safety precautions in highrise buildings as conceived in the Building Bye laws. It is submitted 599 that the High Court failed to consider submissions of the appellant on certain vital issues. In his affidavit dated 6.6. 1989, filed in this Court, Sri H.P. Sharma, learned Advocate who appeared for the NDMC before the High Court stated: " . . Again, it is clear from the order that the entire matter was being conducted in a spirit of compromise which shows that in stead of adjudicating upon the issues in the Writ Petition, parties to the petition were required to resolve the matter amicably. On March 31, 1989, Mr. S.D. Satpate, Chief Archi tect, NDMC and Mr. Karam Chand, Dy Architect, NDMC were present in Court. Counsel for NDMC informed to the Court of the presence of the said persons who were ready to assist the Court as certain objections were still outstanding. However, the Court did not ascertain from any of the Officers if they had any objections. Conse quently, the Hon 'ble Court was not informed of the details of the said objections of the NDMC. Instead, the Court issued Rule on the same date and proceeded with the matter. I, as counsel appearing on behalf of NDMC along with Mr. Bikramjit Nayyar, Advocate requested the Court that the NDMC wished. to file an Affida vit giving details of the outstanding objec tions. Time was sought to file the said affi davit. Counsel for NDMC also indicated that the normal practice of the Court is to issue Rule and thereafter fix the case for final disposal giving an opportunity to the parties to file additional affidavits, if any for the disposal of the petition. However, the Court declined the request and directed counsel for NDMC to proceed with the hearing on that very date. The matter was proceeded with and Judg ment was reserved on that date. During the course of the hearing the standing counsel for the NDMC raised the issue of the applicability of Bye law 16.4.8 of the applicable Building Bye laws of the NDMC and submitted that the clearance of the Chief Fire Officer did not prevent the NDMC from enforcing the applicable bye laws. Standing counsel for the NDMC also submitted to the Court that the approval of the DUAC was conditional. However, the Court in the light of the statement of counsel for the DUAC did not deal with the issue of the applicability of Bye law 16.4.8. " (Emphasis Supplied) 600 To similar purport and effect is the affidavit of Sri Sat pate the NDMC 's Chief Architect. Before we examine the specific contentions raised in the appeal, it is necessary to refer to certain basic fea tures of the proposed building in relation of its fire safety aspects. The eligibility of the proposed construction for sanction except on the point of adequacy of "Refuge areas" in the requirement of a "pedestrian walk way" and "Podium" is not otherwise disputed. The proposed "Statesman House" envisaged by the plans is a fifteen storey, 55.2 meter high structure its High rise portion being a cylindrical structure with a hollow core open to sky. On each of the floors above the 4th floor, commencing above the height of 15 meters, there is a 5 foot wide circular passage on the inner side of the circle over looking the central vacant area. These passages which are connected to the lift areas, provide access to the accommo dation on the respective floors. Only an arc of the circular passage in each of the floors is visible from and overlooks the front of the building. Respondent No. 1 claimed that these inner circular passages answer the description and serve the purpose, of "Refuge areas" required to be provided as fire safety measures. In so designing, the Architects seek to combine general utility and "Refuge areas". The question is whether this architectural and design resource fulness, which enables Respondent 1 to claim these, other wise essentially functional and utility areas, also as 'refuge areas ' for fire safety, really satisfies the re quirements of the Bye laws. We may now turn to the requirements of the Bye laws in this behalf. Fire protection requirements, generally are dealt with by bye law 17.1 and 17.2 which provide: "17.1 Buildings, shall be planned designed and constructed to ensure fire safety and this shall be done in accordance with part IV Fire Protection of National Building Code of India, unless otherwise specified in these bye laws. In the case of buildings (identified in Bye law No. 6.2.4.1), the building schemes shall also be cleared by the Chief Fire Officer, Delhi Fire Service" "17.2 The additional provisions related to fire protection of buildings more than 15m in height and buildings identified in 6.2.4.1, shall be as given in Appendix K." 601 The proposed building is over 15 meters in height and attracts Bye law 16.4.8 which, inter alia, provides: "Refuge Area For all buildings exceeding 15 m in height, refuge area shall be provided as follows: (a) For floors above 15m and upto 24m one refuge area on the floor immediately above 13m. (b) For floor above 24m and upto 36m one refuge area on the floor immediately above 24m. (c) For floor above 36m one refuge area per every five floors above 36m. This Bye law specifies the location, at various heights,, of the "refuge areas". The structural nature and basis of its calculation of the extent of these "Refuge areas" are dealt with by Bye law 16.4.8.1. which provides: "Refuge area shall be provided on the external walls as cantilever projections or in any other manner (which will not be covered in FAR) with a minimum area of 15 sq. and to be calculated based on the population on each floor at the rate of 1 sq. m. per person. " (Emphasis Supplied) The expression "External Wall" is a defined expression. Bye law 2.27 says: "An outer wall of a building not being a partition wall even though adjoining to a wall of another building and also means a wall abutting on an interior open space of any building." In the plans, the disposition of the 'refuge area ' is, admittedly, not in strict accord with the prescription of Bye law 16.4.8 which requires the location of 'refuge areas ' for a group of floors as specified therein. The Bye law does not contemplate one for each floor as now provided in the plans. The 'refuge areas ' are not provided on the outer "external" wall; but are on the wall abutting the inner circular vacant space forming the floor of the hollow care of cylindrical structure. As the entrance is now designed and conceived fire fighting and rescue 602 equipment cannot, it would appear, be carried into this inner area. But Respondent 1 claims that the walls on which these refuge areas are provided about the inner vacant space and are eligible to be called 'External ' walls within the meaning of Bye law 2.27. The NDMC by its communication dated 14.3.1989 to the Chief Fire Officer expressed its reservations as to the correctness and propriety of the clearance to the plans accorded by him on 9.3. By his reply dated 30.3. 1989, the Chief Fire Officer, in justification of the approval which he gave stated: "the consultants have proposed refuge area at each floor above 15m level, which is consid ered to be more convenient and reliable be cause there is hardly any scope of smoke logging due to centre core open to sky." (Emphasis Supplied) 8. The contentions urged by Sri Sibal in support of the appeal are: (i) Bye Law 16.4.8 prescribes that in respect of all buildings exceeding 15 metres in height there shall be provision for refuge areas at specific locations for a specific group of floors. The requirement is mandatory as it is guided by the considerations of the need to direct and concentrate rescue operations at particular, pre fixed locations. The Bye law is binding on the Chief Fire Officer who is not competent to relax the rigor of its pre scriptions. (ii) The 'external ' walls spoken of by Bye law 16.4.8.1, though so defined in Bye law 2.27 as to include a wall "abutting on an interior open space of any building", however, having regard to the purpose of the Bye law can only refer to an outer wall accessible to the rescue team. The definition is. as always, subject to the context requiring a different meaning. For purposes of Bye law 16.4.87 an "external" wall should be understood with reference to an open area from which rescue operations are possible. In the present case the construction of the Bye law suggested by the respondent company would be justified only if fire fight ing and rescue operations could be conducted from the inner open space. In the present case, 603 having regard to the lack of access to the inner vacant space for fire engines etc., the proposition of Respondent 1 is not even a statable possibility. (iii) The clearance from the Chief Fire Offi cer, Delhi Fire Service, envisaged in Bye laws 17.1 is in addition to the requirements of bye laws 16.4.8. and 16.4.8.1. The said clear ance is one of the conditions for eligibility of the plan to be considered for accord of sanction by the NDMC is not in substitution of the requirement of compliance with the objec tive prescriptions of those bye laws. The primacy to the Chief Fire Officer 's implicit in the approach of the High Court is erroneous and virtually renders the clearance of the Chief Fire Officer binding on the NDMC. It is the NDMC and NDMC alone that can decide wheth er the plans satisfy the Bye laws in any particular case. A reasonable construction bye laws 6.2.4.1, 16.4.8., 16.4.8.1, 17.1 and 17.2 would detract from the validity of the first respondent 's claim and establishes that the clearance from the Chief Fire Officer is one of the conditions and not the sole or conclusive test of the adequacy of fire safety measures in terms of the relevant Bye laws. (iv) The view of the Chief Fire Officer that the design of the Refuge areas in the plans is "more convenient and reliable" is factually and technically unsound as the very nature of the cylindrical structure with a hollow core would promote a "stock" or chimney effect. The Chief Fire Officer 's view is not final or conclusive on the point and, at all events, not binding on the NDMC. (v) The construction of a Pedestrian walk way and Podium are mandatory not under the bye laws but from the requirements of a zonal plan of zone D 1 in which plot No. 148, Barakhamba Road is located and that no relaxation of the requirement would be permissible except on a modification of the relevant Zonal Development Control Plans. The provision for "pedestrian walk way" and "podium" is, therefore, mandatory under the Zonal Development Plan and that no authority including the Chief Fire Officer could compel an abandonment of those statutory presumptions. 604 (vi) That in the manner in which the case before the High Court proceeded the NDMC was denied a reasonable and effective opportunity of presenting its case. Considerations of public safety underlying the stand of the NDMC was not properly appreciated and the NDMC should have been afforded an opportunity to substantiate its valid objections to the plans. (vii) The grant of relief in the writ petition in the form of a direction to the appellant to sanction the plan was not permissible and that, at best, the High Court could have directed the appellant to reconsider the question of according sanction to the plans in the light of the High Court 's order. Sri Nanman, for the respondent company however, submitted that the objection to the plans raised by the appellant on the basis that the refuge areas were not in accordance with the Bye laws was a classic after thought on the part of the Appellant. Bye laws 16.4.8 and 16.4.8.1 learned counsel urged, were merely prescriptive of certain minimal standards of fire safety precautions, it being always open to the owner to build into the designs better and more satisfactory standards of fire safety precautions and that in the present case the Chief Fire Officer who was a technical authority, had himself accepted the designs in that behalf as better and more reliable. Learned counsel urged that out of the 28 reasons put forward by the appel lant on 18.2. 1987 in support of the rejection of the plans, not even one referred to its present insistence that the refuge areas should be built only at the levels suggested in the Bye law or that the refuge area did not abut the "exter nal wall" Shri Nariman further pointed out that in the communication dated 18.2.1987 all that was sought to be said, with reference to the refuge areas in each floor, was that the same had not been taken into account in the calcu lation of the F.A.R. Shri Nariman said that bye law 16.4.8 in its language and content had been bodily lifted from the corresponding prescriptions in the "National Building Code of India" (1983), from the provisions of part IV relating to "Fire Protection". The said Code itself indicated that the norms in regard to fire protection referred to therein were only broad guide lines and were not to be construed to prohibit better arrangements. Shri Nariman referred to the following excerpts from part IV of the said Code at para 0.2 and 0.7: 605 " . . An indefinite combination of variable is involved in the phenomenon of fire, all of which cannot be quantified. The requirements of this Code should, therefore, be taken as a guide and an engineering design approach should be adopted for ensuring a fire safe design for buildings. It would also be necessary for this purpose to associate quali fied and trained fire protection engineers with the planning of buildings, so that ade quate fire protection measures could be incor porated in the building design fight from the beginning." (Emphasis Supplied) "0.7. Nothing in this part of the Code shall be construed to prohibit better types of building construction, more exits or otherwise safer conditions than the minimum requirements specified in this part." (Emphasis Supplied) It was, accordingly, urged that the prescriptions in bye law 16.4.8. and 16.4.8.1 were not inflexible and wherever more liberal and better standards of fire precautions were incor porated in the designs, the bye laws did not prevent such better measures being adopted by the licencing authority. It was further urged that the Chief Fire Officer was the au thority competent to decide questions whether the provisions incorporated in the designs were better and more liberal and that his decision in the matter ought to be conclusive and binding on the licencing authority. In regard to the adequa cy and acceptability of fire safety measures in the build ing design, it was urged, the bye law, recognised and ac corded a primacy of place to the decision of the Chief Fire Officer and that, indeed, para K 1 of Appendix K 'read with bye law 17.2 recognised the importance of, and finality, to the decision of the Chief Fire Officer. The said para K 1 Appendix K reads: "K 1 In addition to the provision of Part IV Fire Protection of National Build ing Code of India, the Chief Fire Officer, Delhi Fire Service may insist on suitable provisions in the building from fire safety and fire fighting point of view depending on the occupancy and height of buildings. " The decision of the Chief Fire Officer to accept the distribution of refuge areas in each of the floors, it was said, was referable to the general power of the Chief Fire Officer to issue such directions. In the 606 present case, it was urged, the designs providing for refuge areas in the ratio of one sq. metre per person on each floor was considered by the Chief Fire Officer as a better and more reliable fire safety measures than those envisaged by the bye laws and the Chief Fire Officer preferred to accept them. Shri Nariman sought to point out that in the Annexure B. 1 to the Affidavit dated 7.7.1989 of respondent No. 2 a list of six buildings had been set out respecting which the sanctions granted by the NDMC indicated that the local body had itself understood the prescriptions in the bye laws to be flexible and had further limited the extent of the Ref uge Areas to 0.3 sq. metre per person as against 1 Sq. metre per person set out in bye law 16.4.8.1. As to the requirement of bye law 16.4.8.1 that the refuge area shall be provided on the "external walls" is concerned, Shri Nariman relied upon the definition in Bye law 2.27 to say that a wall abutting an inner vacant space is also an "external wall" and the acceptance of the cor rectness of this position was implicit in the clearance given by the Chief Fire Officer. The words "in any other manner" in Bye law 16.4.8.1 it is urged, makes room for the requisite flexibility. In regard to the "pedestrian walk way and "podium" it was pointed out that the insistence upon these was again, a glaring instance of the inexhaustible resourcefulness of the appellant to thwart Respondent 's project. It was pointed out that none of the 28 objections raised in the NDMC 's communication dated 18.2.1987; nor the further objections raised on 6.2.1989; nor, indeed, the objections raised by NDMC on 14.3. 1989, to the clearance given by the Chief Fire Officer who, incidentally, had advised the deletion of podium in view of the obstruction it would present the fire brigade appliances, had the NDMC raised the question of the alleged infirmity in the plans for want of provision for the walk way and Podium. It was also pointed out that in none of the counter affidavits filed in the High Court nor in the memorandum of Special Leave Petition; nor in the written submissions filed before this Court had this question been agitated by the NDMC. It was pointed out that the committee constituted by the order No. 10(24) RN 83/731/7714 24 dated 13.6.1983 made by the Lt. Governor, Delhi, had in its report of 5.2.1986 suggested the doing away with the proposal to construct a raised pedestrian walk way on either side of Barakhamba Road as, in the view of the committee, the "head clearance under this proposed walk way will be such that cars 607 will be able to pass under it, but fire/rescue appliances will not be able to approach any where near the buildings beyond the raised walkway. " It was pointed out that the committee was also of the opinion that these walk ways, if and when constructed, would nullify all fire safety measures in the buildings on either side of the Barakhamba Road. Shri Nariman referred to the advice of the Chief Fire Officer with regard to the present plans themselves that the walk way and the podium be dispensed with. It was, therefore, urged that the insistence on the construction of the pedestrian walk way while being wholly undesirable, was also a glaring instance of how by these after thoughts appellant made manifest its determination to delay and defeat respondent 's project. On the contentions urged, the points that fall for consideration are: (a) Whether Bye law 16.4.8 as to the disposition and location of the "Refuge Areas" prescribes an inflexible, rigid standard and whether the location and distribution of the refuge areas in each floor is violative of the Bye law? (b) If point (a) is held in the nega tive, whether the clearance given to the plan by the Chief Fire Officer, on the view that distribution of the refuge areas in each floor is a better and more reliable fire safety measure is conclusive and binding on the NDMC. In other words, is it open to the NDMC to examine and decide the question independently of the Chief Fire Officer 's clearance? (c) Whether the Refuge Areas located on the walls abutting the inner vacant area be held to satisfy the requirements of Bye law 16.4.8.1? (d) Whether the extent of 'Refuge Area ' requires to be reduced from 1.0 sq. metre per person to 0.3 sq. metre per person? (e) Whether the NDMC is justified in insisting upon the erection of "Pedestrian Walk way" and a "Podium" in front of the proposed building? 13. Re: points (a) and (b): A number of affidavits and counter 608 affidavits are placed before us on the scope of the Bye laws. It is not necessary to examine all of them as the matter is essentially one of construction of the provision itself. The contents of Bye laws 16.4.8 and 16.4.8.1 are borrowed from Part IV dealing with "Fire Precaution" in the National Building Code of India, 1983. The Code conceives of these prescriptions as only broad guide lines. But the Building Bye laws in the present case which have drawn on these provisions from the Code have, however, assimilated them as part of the statutory prescriptions under the Bye laws. The NDMC says that once this is done the norms are no longer directory but assume statutory import and become mandatory. In the infinite variety of ways in which the problem of adequate fire safety measures to be incorporated in build ings present themselves, and having regard to the wide and complex range of situational variations in the location, character and design of buildings and their disposition in relation to the other factors influencing the evaluation of such safety measures, a view favoring flexibility of ap proach ought to commend itself. The National Building Code of India, from which the substance of the Bye laws are drawn, indicates that these are concerned with indicating certain broad minimal assurances for fire safety and that better and more reliable measures ought not to be excluded. We are not, however, impressed by the submission that the six instances cited in Annexure B 1 to Affidavit dated 7.7.1989 of respondent No. 2 are really instances demon strating departure, from the present stand of the appellant. indeed, appellant points out that out of the six buildings referred to in Annexure B 1, only two i.e. No. 23, Barakham ba Road and DLF Plaza, 21 22, Narendra Place, were dealt with by the NDMC and that the rest were dealt with by the D.D.A. The affidavit of Shri Karamchand, Architect, NDMC overs that no sanction was given in respect of No. 23, Barakhamba Road and that no departure from Bye laws 16.4.8, as understood by the NDMC, was involved in the case of the DLF Plaza building. The explanation offered is, in our opinion, acceptable and, nothing much turns upon the cases referred to in Annexure B 1. 14. But that is not to say that the rigid interpretation sought to be placed by the appellant on the bye law 16.4.8 and 16.4.8.1 is justified. It is, of course, wise in the interest of uniformity of administration of these Bye laws and of elimination of possible complaints of partisanship, that the NDMC should insist upon adherence to the require ments of the Bye law 16.4.8 on its own strict terms. That 609 should not, however, denude the power of the appellant to accept designs which, in the judgment of the appellant, offer and incorporate fire safety precautions of higher measure. When fast and sweeping changes are overtaking the fundamental ideas of building design and construction and new concepts of building material are emerging, it would be unrealistic to impute regidity to provisions essentially ' intended to promote safety in building designs. As suggested in the National Building Code Bye law, provisions such as Bye law 16.4.8 envisage certain minimal safety standards compliance with which should, generally, be insisted in order that there be uniformity and equal treatment and an elimination of imputations of favoritism and arbitrariness. If a building design incorporates fire safety measures in a measure promoting fire safety precautions far better than those suggested by the Bye laws, they should not fetter the hands of the licensing authority to accept them. Under the relevant statute and the Bylaws, the authority to grant or refuse the licence is the NDMC. It has the power to decide whether any proposals are an improvement on the prescrip tions contained in the Bye laws which, indeed, is a matter of some complexity and, in conceivable cases, one calling for expertise is the NDMC itself. From the way the National Building Code, from which the provision is borrowed, has treated such provisions, it is not unreasonable to presume that the requirements were incorporated in the Bye laws with a similar approach as to their import. The clearance from the Chief Fire Officer envisaged by Bye law 17.1 is an additional condition and not a limitation on the power of the NDMC to satisfy itself that the building plans provide for adequate fire safety precaution in accordance with its bye laws or in a better measure. The clearance by the Chief Fire Officer, which is expected to involve and follow a technical assessment and evaluation, obliges the NDMC to give due weight to it but, having regard to the scheme and language of the Bye laws the decision of the Chief Fire Officer is not binding on the NDMC. We accept the submis sions of Shri Sibal that clearance of the plans by the Chief Fire Officer would not render it obligatory on the part of the NDMC ipso facto to treat the plans as necessarily com plying with the requirements of relevant Bye laws. While the clearance by the Chief Fire Officer is an indispensable condition for eligibility for sanction, however, such clear ance, by itself, is not conclusive of the matter nor binding on the NDMC. On the material placed before us we are inclined to hold on points (a) and (b) that the requirements of Bye laws 16.4.8 are not inflexible and that in appropriate cases, where the plans and designs incorporate fire safety measures which, in judgment of the NDMC, are considered to provide for the safety in a measure better than those 610 envisaged by the Bye laws 16.4.8, the NDMC would not be precluded from accepting them. Whether the plans submitted by Respondent 1 distributing 'Refuge Areas ' in each floor provide such a better and more reliable fire safety measure is a matter for the decision of the NDMC. We also hold that the clearance from the Chief Fire Officer in this behalf though entitled to weight, would not be binding on the NDMC which can and is entitled to examine the question independ ently of such clearance from the Chief Fire Officer. Re: point (c): Bye law 16.4.8.1 requires that Ref uge Areas shall be provided on the "external walls" by means of cantilever projections or "in any other manner". In the present case the Refuge Areas are provided on the walls that open into an inner vacant space. They are provided on walls which respondents say are "external walls" having regard to the definition of that expression in Bye law 2.27. The definition is not conclusive; but is subject to the context indicating a contrary import. The purposes of refuge areas include that in the event of an out break of fire in the building, persons exposed to the hazard should be able to have immediate access to a place of safety which by its access to fresh air insulates them from heat and smoke and further that those persons could conveniently be extricated and rescued to safety by rescue operations. The word "exter nal wall" in Bye law 16.4.8.1 which is a provision intended to promote public safety, health and well being must receive a purposive construction which promotes those objects and purposes. Refuge area located on a wall though abutting an inner vacant space would not, by itself, promote the object if the vacant space is such that no rescue operations are possible to be conducted therefrom. If the fire fighting and rescue equipment cannot have access to such inner vacant space, then, in the context of the specific objectives of bye laws 16.4.8.1, the wall abutting such inner vacant space would not be an "external" wall for purposes of the said bye law. Having regard to the very purpose of providing for "Refuge Areas" intended, as it is, to secure protection to persons in the event of an out break of fire in a high rise building, the expression "external wall" must be held to be one which abuts a vacant space to which fighting and rescue equipment can have access and from which rescue operations are feasible. We find it difficult to accept the submissions of Sri Nariman based purely on the definition in Bye law 2.27. The definition is subject to the context suggesting or requiring a different meaning. The context here does suggest such a different import. Having regard to purpose Bye law 16.4.8.1 is intended to serve "Refuge Areas" must be located on walls which open into vacant space from which rescue operations are possible. NDMC should decide this question and examine whether such rescue 611 operations are feasible from the inner circular vacant space. This is an exercise individual to each case and to be judged on case to case basis. The words 'in any other man ner ' in Bye law 16.4.8.1 are not intended to envisage a totally different idea of the location of 'Refuge Areas ' but, prima facie, intended to suggest some feasible alterna tive to the technical design of the construction of the Refuge Area Whether it should be a cantilever projection or designed in some other way. Point (c) is held and answered accordingly. Re: point (d): One of the contentions raised by Sri Nariman was that the insistence of 1 sq. m. per person for calculating the extent of the Refuge Areas is discriminatory as the NDMC had reduced the requirement only to 0.3 sq. m. per person in many other similar highrise buildings. In the course of the counter affidavit filed by Sri Karam Chand, Architect of NDMC, this claim that the extent of refuge area could be calculated at 0.3 sq. metre per person instead of 1.0 sq. metre per person is not disputed. Indeed, it is stated in the said affidavit: " . . The NDMC does not have any objection to the provision of 1.0 sq. metre per person as required by by law 16.4.8.1. In the event the Statesman Limited wish to provide only 0.3 sq. metre per person in accordance with the resolution of August 4, 1988, the NDMC would have no objection to the same and the States man Limited in this regard be directed to amend their building plans in accordance with their desires . . " Respondents are therefore at liberty to limit the Ref uge Areas to 0.3 sq. metre per person as against 1.0 sq. metre per person. Re: point (d): This relates to the insistence on construction of a "pedestrian walk way" and a "podium" parallel to Barakhamba Road in front of the proposed build ing. Though the zonal development plans envisaging a raised pedestrian walk way on either side of Barakhamba Road and the provision for podia connecting the building with the walk way were accepted and an appropriate notification issued way back in 1966, no steps appear to have been taken to give effect to them in a uniform manner. In the very nature of the concept of a pedestrian walk way on either side of the road, the insistence for provision of such a walk way in an individual case without the integration and continuation of the walk way along the whole of the road, 612 would indeed, be purposeless. Several authorities, including a committee constituted by the Lt. Governor of Delhi in 1983 and the Chief Fire Officer, have advised against the imple mentation of the proposal. In the instant case the Chief Fire Officer has, it is not disputed, expressly opined against the desirability of such a 'walk way '. The NDMC has to bestow serious re consideration on its insistence to have such a pedestrian walk way for the building, if such walk ways do not already obtain in other buildings on the Road. The only way in which, perhaps, the zonal developmental requirements in this behalf and the difficulties and prob lems inherent in the insistence upon construction of such pedestrian walk way in an isolated particular case, could be reconciled is to direct the NDMC, in the event of its ap proving the plans otherwise, to keep the requirement of the pedestrian walk way and the podium in abeyance for the present, subject to a written undertaking to be lodged with it by the respondent 1 and 2 to the effect that whenever the policy to implement the Zonal Developmental requirements in this behalf is finally decided upon, the respondent 1 and 2 would undertake to put up such a pedestrian walk way and Podium. The NDMC also, if it so chose, could secure the requisite financial guarantees for the construction of such a pedestrian walk way by the NDMC itself at the expense of the respondent if Respondent 1 and 2 fail to do so whenever so required. This course would, while ensuring the prospect of compliance with the Zonal Development prescriptions, if they are decided to be put into effect, also allay the apprehension of Respondent 1 and 2 that Governmental author ities are dealing with the Statesman 's project with 'an evil eye and an uneven hand. Point (d) is answered accordingly. We might advert here to the grievance of Respondent 1 and 2 that the NDMC did not raise, at the appropriate stage, any specific objections to the plans on the ground that either they were not in conformity with Bye law 16.4.8 or 16.4.8.1 or that the plans were .defective for want of pedestrian walk way. Objection based on bye law 16.4.8.1, it was urged, was never in mind of the NDMC. These objections, it was urged, were developed from stage to stage leaving the inference inescapable that the NDMC was pre determined to decline the sanction for the 'Statesman House ' on one ground or another. We are afraid, the way NDMC has developed its stance from time to time incurs and perhaps justifies this griev ance. Indeed, at no stage of the proceedings before the High Court, or even in important 613 communications bearing on the question of the sanction, did the NDMC refer to the specific objection based on the lacuna that Refuge Areas were not located on the "external" walls, as interpreted by the NDMC and the lack of a provision for the pedestrian walk way. Sri Nariman urged that we should not permit the NDMC to raise these belated and laboured objections. We have considered these submissions. We have proceeded to consider the contentions of the NDMC even on these points on the merits in view of the fact that they are matters of some general public importance, though we are not unmindful that the NDMC has not been business like in the way it has dealt with the question from time to time. It is for this reason that though in view of the findings recorded on the various contentions, the order dated 24.4. 1989 of the High Court requires to be and is hereby set aside, however, we keep this appeal pending for such final orders and directions as may become necessary to be issued. In the meanwhile. We permit Respondent 1 and 2 to effect such rectifications to the plans in regard to the Refuge Area as may be necessary in the light of the observa tions in this order. The refuge areas could be located in each of the floors separately, provided that it could be shown to the satisfaction of the NDMC that such a measure would better promote fire safety in the building and, pro vided further, that they are located on external walls "by cantilever projection or in any other manner" abutting a vacant space from which rescue operations are rendered possible. If such rectifications to the plans are made and submitted within 3 weeks from today, the NDMC will consider and decide the question of according sanction to the plans in the light of the observations in this order and without insisting upon any fresh clearance from DUAC or the Chief Fire Officer within 3 weeks thereafter and report to this Court the decision taken upon such re construction. This appeal shall be kept pending and be taken up for final disposal after the submission of the report from the NDMC in this behalf. If respondents 1 and 2 are aggrieved by such fresh decision of the NDMC, those grievances shall be considered in the further proceedings in the appeal. It was also submitted to us that pending final decision, respondents 1 and 2 should be permitted to com mence the construction as delays had entailed serious cost and time over runs. We permit 614 respondents, at their option, to commence the construction work according to the plans submitted by them, on the condi tion that they file a written undertaking before the NDMC that the construction would be at the risk of the Respond ents 1 & 2 and it would not progress beyond a height of 15 metres and in the event of an ultimate rejection of the plans, they would have no claim against the NDMC for any loss occasioned to respondent 1 and 2. 22. The appeal is directed to be called after 6 weeks to await the further report of the NDMC referred to in para 20 supra. Ordered accordingly.

Section 10(1) of the , does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose. Nor can section 21 of the , vest such a power by necessary implication. It is well settled that the rule of construction embodied in section 21 of the can apply to the provisions of a statute only where the subject matter, context and effect of such provisions are in no way inconsistent with such application. So judged it is clear that that section cannot apply to section 10(1) of the . Minerva Mills Ltd. vs Their Workmen, ; , held inapplicable. 1192 Strawboard Manufacturing Co. Ltd. vs Gutta Mill Workers ' Union, ; , explained. The Textile Workers ' Union, Amritsar vs The State of Punjab and others, A. I. R. 1957 pun. 255 and Hayendranath Bose vs Second Industrial Tribunal, , overruled. South Indian Estate Labour Relations Organisation vs The State of Madras, , distinguished. Consequently, where the appropriate Government by two notifications, issued one after the other, referred two industrial disputes between two batches of workmen and their employer for adjudication to the industrial tribunal constituted for that purpose and, thereafter, by a third notification superseded the two earlier notifications and the High Court, on the applications of both the workmen and the employer under articles 226 and 227 of the Constitution, issued a writ of certiorari quashing that notification and by a writ of mandamus required the tribunal to proceed expeditiously with the two references and the State Government appealed: Held, that the impugned notification was invalid and ultra vires 'and the finding of the High Court must be affirmed. Held, further, that since a reference under section 10(1) of the was in the nature of an administrative act, the more appropriate writ to issue would be one of mandamus and not one in the nature of certiorari. The State of Madras vs C. P. Sarathy, , referred to.

No. 5222 of 1985. Under Article 32 of the Constitution of India. R.K. Garg, R.S. Singh and S.K. Verma for the Petitioner. K. Parasaran, Attorney General, B. Datta, Additional Solicito General, A.K. Ganguli, Dr. Y.S. Chitale and Dr. Shankar Ghosh 1218 P.P. Singh, Ranjit Kr. Pramod Dayal, D. Goburdhun, K. Swamy, Ms. Sushma Suri, Probir Mitra. A.K. Ghose, M.M. Gangadeb, Dhanjay Chandrachud, P.R. Seetharaman, D.K. Sinha, K.R. Narnbiar and A.K. Sil for the appearing parties. The Order of the Court was delivered by OZA, J. Heard learned counsel for the petitioners as well as the respondent, the various financial institutions including the Banks and also counsel for the State of Bihar. By orders of this Court dated 5.2.86 it was directed that all salaries and wages due to the workers from May 1984 onwards shall be paid to them in 'three instalments: It appears that they have not yet been paid inspite of the directions from this Court. It was also brought to our notice that notwithstanding that order of this Court, the State of Bihar has issued a Notification dated December 12, 1986, wherein this industry has been declared to be a sick industry under Section 3 of the Bihar Relief Undertakings (Special provisions) Act, 1981 (Bihar Act No. 12 of 1982) and by this Notification the Bihar Government has declared the said Industrial :Undertaking shall be and remain a relief undertakings for one year from the date of issue of the Notification. On ;the basis of this an attempt was made to suggest that the liability of the industry for payment to the workers can not be enforced. However, learned counsel appearing for the State of Bihar frankly conceded that so far as the liability of payment of wages to the workers is concerned the State Government wants that it should be paid. As directed by this Court a report had been submitted by the Official Liquidator in the case of this industry. This report shows that the products produced by this industry which are lying in stocks are of the value of Rs.91,77,000. This report also discloses that from the month of May, 1984 till 8th July, 1984 when this industry closed down an amount of Rs.89,00,000 remains to be paid to the workers as their salaries and emoluments. The learned counsel appearing for the State Bank of India ' and other financial institutions attempted to contend that these goods which are the finished products lying in stock are pledged with these Banks and, therefore, they have a prior claim over the sale proceeds of these stocks and it was, therefore, contended that this could not be sold and the workers could not be paid off. On the other hand it was suggested that in fact a scheme has been drawn up to review the industry in the interests of the workers and the society in general and in that scheme of starting the industry again financial problems may arise and if this stock is sold out and the money collected therefrom are 1219 paid out to the workers then it may create difficulties. It is no doubt true that these ' products the stock of which have been shown ' in the report and the value of which has been shown by the Liquidator as Rs.91,77,000 is pledged with Banks, is a priority in law in favour of the Banks but: lit also; could not be disputed that these stocks were the products of this industry before its closure and, therefore, the workers also contributed their labour and it is the result of their hard work that these stocks could be pro duced and in our opinion therefore, it could not be said that the wages and emoluments for the period upto closure would not rank in priority. It is also significant that after the closure in July, 1984,. till today in spite of the order passed by this ' Court the workers have not been paid. Their subsistance and living is also perhaps of paramount importance and has to rank with highest priority. It is in view of this as it appears, that the Government of India is keen to have a scheme for revival of this industry. Learned counsel for:the State of Bihar also frankly conceded that so far as payment to the workers is concerned the State Govern ment also desires that they should be paid their salaries. It is no doubt true that at present there are no assets available out of which the whole payment of all the dues to the workers from May 1984 till today could be done but from out of these assets the products which are lying in stocks valued at Rs.91.77,000 the salaries and the dues of the workers from May 1984 tilt the date of closure could be made. It was contended that in case these stocks are liqui dated and the amount collected are paid off to the workers, difficulty may arise as this asset which has been taken into account will not be available for the scheme of re starting the industry. Looking to all the circumstances and taking a broad and humane view of the situation we are of the opin ion, that it would be just and proper that these goods which are lying in stock should be sold and out of the sale pro ceeds the workers should be paid their dues upto the date of closure (from May 1984 to July 1984 i.e. 8th July, 1984) so that at least they will get something for subsistance. Learned counsel for the State Bank of India pointed out that his client has paid for the insurance of certain assets and for loss thereof in whole or in part, the insurance has paid for the loss. The Official Liquidator may keep that amount separately and allow the State Bank to adjust the same against its insurance. So far as the pledge and the priority of the financial institutions are concerned, we have no doubt that they have other sufficient securities and proper ties of the Company and, therefore, if this stock of fin ished products are sold to meet the basic requirements of the workers, their interests would not be in jeopardy. Apart from it, we also hope and trust that if the loss of this amount of Rs.91,77,000 1220 somehow comes in way of the scheme of re starting of the industry, the Government of India would find funds to save the situation and help early revival of the Company. We therefore direct that these stocks which are lying with the industry valued at Rs.91,77,000 shall immediately be dis posed of and out of this the wages and other dues of the workers for the period from May 1984 till 8th July, 1984, shall be met. The balance, if any, will be utilised for meeting other pressing demands in the discretion of the Official Liquitator subject to orders of the Court. We are sure that the Official Liquitator will ensure that the disposal fetches the best of rates. We may also make it clear that issuance of the notification by the Bihar State Government will not come in the way of sale of these assets and payment to the workers. We direct that this shall be completed within two months from today. The case may come for further directions in third week of July. We expect that by then with the lead taken by the Cen tral Government, the scheme of revival would have made sufficient headway and everyone would be in a position to have an optimistic view of the situation.

By order dated 5.2.1986 this Court had directed that all salaries and wages due to the workers from May 1984 onwards shall be paid to them In three instalments. They have not yet been paid. It was brought to the notice of the Court that the State of Bihar has issued a Notification dated December 12, 1986 declaring the respondent industry a sick industry under section 3 of the Bihar Relief Undertakings (Special Provisions) Act, 1981 and that the said Industrial Undertaking shall be and remain a relief undertaking for one year. On behalf of the industry it was contended that the liability of the industry for payment to the workers cannot be enforced. However, counsel for the State conceded that the State Government wants that the wages to the workers should be paid. According to the Report of the Official Liquidator finished products of the value of Rs.91,77,000 are lying in stocks and that from May, 1984 till 8th July, 1984 an amount of Rs.89,00,000 remains to be paid to the workers as their salaries and emoluments. On behalf of the financial institution it was contended that the products lying in stocks are pledged with them and they have prior claim over the sale proceeds of these stocks and, therefore, the products could not be sold and the workers could not be paid off. It was suggested that a scheme has been drawn up to revive the industry and finan cial problems may arise if the stock is sold out and wages paid to the workera out of sale proceeds. Issuing directions the Court, 1217 HELD: 1. Though the stock of products is pledged with Banks and they have a priority in law, but it is the result of the hard work of the workers that these stocks could be produced. Therefore, it could not be said that the wages and emoluments for the period upto closure would not rank in priority. Their subsistance and living is also of paramount importance and has to rank with highest priority. For this reason the Government of India is keen to have a scheme for revival of this industry and the State Government also desires that the workers should be paid their salaries. [1219A D] 2. Looking to all the circumstances and taking a broad and humane view of the situation it would be just and proper that these goods which are lying in stock should be sold out and out of the sale proceeds the workers should be paid their dues upto the date of the closure (from May 1984 to 8th July, 1984). The Official Liquidator will ensure that the disposal fetches the best rates. This shall be completed within two months. [1219F] 3. The financial institutions have other sufficient securities and properties of the Company and if the stocks of finished products are sold to meet the basic requirements of the workers, their interests would not be in jeopardy. [1219G H] 4. The balance out of the sale proceeds, if any, will be utilised for meeting other pressing demands in the discre tion of the Official Liquidator subject to orders of the Court. [1220B] 5. The Official Liquidator may keep the amount of insur ance claim separately and allow the State Bank to adjust the same against its insurance. [1219G] 6. Issuance of the Notification by the Bihar State Government will not come in the way of sale of these assets and payment of the workers. [1220C]

l Appeal No. 11 14 of 1976. From the Judgment and Order dated 22nd September 1976 of the Kamataka High Court in Election Petition No. 1 of 1974. L. N. Sinha, K. R. Karanah & B. P. Singh for the Appellant. K. N. Bhat and (Miss) section Pramila for the Respondent No. 1 Y. section Chitley and Narayan Nettar for Respondent No. 2 The Judgment of the Court was delivered by KRISHNA IYER, J. Four heavy volumes of case records confron ted us in this appeal, as counsel opened the arguments, but some, Socratic processing seemed to condense the controversy and forensic prolixity so much so we first thought the case had shrunk to such small dimensions as to be disposed of in a short judgment. But what we initially felt, when the brief narration of facts was given, proved a 195 snare. For, when we read out in court our opinion on the only crucial aspect of the case, counsel for the 1st respondent hopefully insisted that the factual grounds, requiring our ploughing through ponderous tomes of testimonial collection, pleadings and what not, should be investigated as he expected to sustain the invalidation of the election by the High Court on the score of corrupt practice and the consequential disqualification of the rival candidate i.e., the appellant before us. He was entitled to press that part of his case and so we agreed to hear both sides extensively thereon. However, hours of argument after, we were back to square one. At this stage, some relevant facts and circumstances need narration. The Karnataka Legislative Council has, in its composition, some members elected from the local authorities constituencies. One such member is elected by the local bodies of Bidar district and the specific election that falls for decision was held on May 12, 1974. According to the calendar for the poll contemplated in s.30 of the Representation of the People Act, 1951 (hereinafter called the 1951 Act), the last date for presenting the nominations was appointed as April 17, 1974. Section 33(1) requires that each candidate shall deliver to the returning officer a nomination paper as set out in the section 'between II o 'clock in the forenoon and 3 o 'clock in the after noon '. The appellant and the first respondent did file their nomi nations in conformity with the law; their scrutiny over, they entered the fray and, after the poll was over, the appellant was declared elected, having secured 64 votes as against the 1st respondent 's 54 votes. The frustrated 1st respondent found 16 illegitimate votes having been cast in favour of the successful candidate and further discovered that these 16 electors were ineligible to figure on the electoral roll but had been surreptitiously introduced therein by collusion, fraud and other improper machinations in which the returned candidate and the returning officer were collaborative actors. The purity of the election was polluted. The result of the poll was materially affected. The electoral process was vitiated by 'corrupt practice ' in which the appellant and the 2nd respondent were particeps criminis. He ventured on an election petition with the prayer to set aside the poll verdict inter alia under section 123(7) of the 1951 Act and also sought a declaration 'that he was duly elected on the score that the exclusion of the invalid votes, very probably cast in favour of the appellant, led inevitably to his arithmetical success as the one who had secured the larger number of valid votes. Such was his case. The petitioner had made somewhat vague, sweeping and speculative allegations about government, higher and lower echelons of officialdom and the rival candidate but, if an apology for specificity is partially present in the petition, it is about the charge of corrupt practice roping in the returning officer cum electoral registering officer (2nd respondent) and the successful candidate (appellant). No issue was originally framed on the critical question of corrupt practice but the learned judge permitted evidence thereon to be adduced a procedure difficult to appreciate. After the trial was virtually closed and the arguments finished, the Court discovered the need for framing this decisive issue. On objection as to the absence of material facts and 196 or material particulars, the learned Judge framed an issue also on the actual vagueness and legal flawsomeness of pleadings on corrupt practice. Naturally, this latter question demanded prior decision but, curiously, the Court delivered all its findings, on the day of judgment, a faux pas which we must point out. Processual proprieties are designed to ensure fair play in adjudications and while such prescriptions are not rigid punctilios, their observance serves to help the judge do, effective justice between parties and the disputants have faith in the intelligent impartiality and full opportunity so necessary for the success of the rule of law. In election proceedings where the whole community is silently present and the controversy is sensitive and feelings suspicious, the principles of procedural rectitude apply a fortiori. The judge is the guardian of processual justice and must remember that judgment on judgment belongs, in the long run, to the people. We state this stern proposition here not merely because a forensic stitch in time saves cassational nine but because courts are on continuous trial in a democracy. In this case we are not satisfied that either party has suffered in substance and procedural breaches, unless they spell unmerited prejudice, may be brushed aside at the appellate level. Having said this, we hasten to add that had not the learned judge uncovered the suspect happenings sinisterly hovering around the last day for finalising the electoral roll, the dubious doings of the political government in a seat hungry setting might not have been ventilated for public edification. The electoral events brought out in evidence are 'power ' portents 'to be prevented preemptively by law and this prompts us to deal with the testimonial circumstances surrounding the inviolable roll of voters having been adulterated after the final hour, zealous officers frantically exerting themselves in what seems at first sight to be a series of belated circus operations geared to inclusion of additional names in the rolls before 17th mid night drew the curtain. Caesar 's wife must be above suspicion and wielders of public power must fill this bill. A moral matrix and administrative culture must nurture the power process if democracy is not to commit suicide. We will make good the relevance of these critical statements with reference to the incontrovertible facts of this case. However, we do not delve into the minutiae of evidence or span the entire factual range, that being otiose. A catalogue of circumstances, fair to both sides, will tell its own moral tale and so we set it out. The last date for completing the electoral roll was April 17, 1974. The rival candidates (the appellant and the 1st respondent) belonged to opposing political parties but the appellant"s party was in power. Both the candidates had semi V.I.P. status in their respective parties. One member more in the Legislative Council would, pro tanto, strengthen the Ministry. This political backdrop be lights some of the things which occurred on the, dates proximate to the completion of the electoral roll. The administrative locomotion and the human motivation behind what the trial judge had described as 'manouvres ' is simple to understand, although, as will be shown below, we do not agree 197 wholly with all the deductions of the High Court. A particular party is in office. The strength of its members in both Houses is therefore of political significance, especially if fluid Politics turns out to be the field of all possibilities. Karnataka has a bicameral legislature, and it is reasonable to suppose that the political government has an understandable concern in the election of a member of the Legislative Council, who will be of their party. Bidar district in Karnataka has a local authorities constituency seat, to be elected by the members of the local bodies there. It follows that the potential electors who are likely to favour their candidate must be brought on the rolls to ensure his victory. Inevitably there was therefore keen interest in incorporating in the electoral roll the members of the Taluk Development Board, Bidar (for short, the Bidar Board). The election to the Bidar Board had taken place years ago, 11 of them having been elected way back in 1968 and 8 later. The election of the 11 members had been duly notified in 1968 but the Board itself stood suspended, an Administrator having been appointed to run its affairs. 8 members who had been later elected to the Board landed up in the High Court on account of writ petitions filed by their rivals. Stay had been granted by the High Court and this led to an absence of 2/3 of the total members being able to function, statutorily necessitating the appointment of an Administrator. Long later the High Court disposed of the writ petitions whereby 3 returns were set aside and 5 upheld. The arithmetical upshot of these happenings was that there were 16 members duly elected to the Bidar Board, and the High Court having disposed of the writ petitions in June 1972, the local body could have been liberated from the bureaucratic management of an Administrator and allowed to function through elected representatives. All that was needed to vivify this body of local self government was a notification under the Mysore Village Panchayats Act X of 1959, terminating the Administrator 's term, and perhaps another extending the terms of some members. Elections to local bodies and vesting of powers in units of self government are part of the Directive Principles of State Policy (article 40 of the Constitution) and, in a sense, homage to the Father of the Nation, standing as he did for participative democracy through decentralisation of power. Unfortunately, after holding elections to the Bidar Board and making people believe that they have elected their administrative representatives at the lowest levels, the State Government did not bring to life the local board even long after the High Court had disposed of the challenges to the elections in June 1972. A government, under our Constitution, must scrupulously and energetically implement the principles fundamental to the governance of the country as mandated by article 37 and, if even after holding elections Development Boards are allowed to remain moribund for failure to notify the curtailment of the Administrator 's term, this neglect almost amounts to dereliction of the constitutional duty. We are unhappy to make this observation but power to the people, which is the soul of a republic, stands subverted if decentralisation and devolu tion desiderated in article 40 of the Constitution is ignored by executive inaction even after holding election to the floor level administrative 198 bodies. The devolutionary distance to ideological Rajghat from power jealous State capitals is unwillingly long indeed, especially in view of the familiar spectacle of long years of failure to hold elections, to local bodies, supersession aplenty of local self government units, and gross inaction even in issuing simple notifications without which elected bodies remain still born. 'We, the people ' is not constitutional mantra but are the power holders of India from the panchayat upward. Back to the main trend of the argument. It became now compulsive for the party in power to de notify the Administrator and revive the elected body if they wanted the members of the Bidar Board to vote perhaps in favour of their candidate. The 11 members elected long back in 1968 could not vote, on account of the expiry of the 4year term unless in view of section 108 of Act 10 of 1959, the government issued another notification extending the term of office of these members. So the elective interest of the candidate of the party in power could be promoted only if three or four quick administrative steps were taken. Firstly, there was to be a notification ending the Administrator 's term over the Bidar Board. Secondly, there was to be a notification extending the term of the 11 members elected in 1968. Thirdly, there was to be a notification of the election of the 5 members whose return had been upheld in the High Court in June 1972. Fourthly, the electoral roll had to be amended by inclusion of these 16 names. If these steps were duly taken, 16 additional members would become electors and the party in power (if these electors be longed to that party or were under its influence) could probably expect their votes. The poll results show that the contest was keen and these 16 votes would have been of great moment. In this high risk predicament, long bureaucratic indolence in issuing notifications and political indifference to the functioning of local bodies produced a situation where the elected roll did not contain the names of the 16 members of the Bidar Board. Only a few days prior to April 17, 1974 the D day the affected candidate, i.e., the appellant, moved the government for initiation of the steps mentioned above ' but nothing happened. On April 16, the day before the crucial date for closing the electoral roll, i.e., the last date for making nominations, the appellant moved the Minister concerned who was in Bidar to get the necessary administrative steps taken quickly. He also moved the returning officer, RW 2. We find the Minister making an endorsement on the petition. We notice the returning officer seeking telegraphic instructions from government. We see government sending an Under Secretary, PW 3, by air from Bangalore to Hyderabad and onward by car to Bidar with some orders. This PW 3 probably apprised the returning officer RW 2 about orders having been passed raving the way for inclusion of the 16 names in the electoral roll. PW 3, the Under Secretary, for reasons not known, makes a bee line the same evening to Gulbarga where be meets the Minister. The returning officer does not have with him any gazette ' notifications. as we see that under section 2(20) of Act X of 1959, a notification must possess the inalienable attribute of publication in the official gazette. Admittedly, the returning officer did not come by any 199 of the necessary notifications before the evening of the 17th. Admittedly, he did not have any gazette notifications before April 25th. Under section 27 of the Representation of the People Act, 1950, the electoral registration officer who, in this case, is also the returning officer, had to have before him gazette notifications which clearly he did not have till the 25th, i.e., 8 days after the relevant date. Nevertheless he, obligingly enough including the 16 names which was in breach of the legal provisions. Frenzied official movements on and after April 16 are visible in this case. The scenario excites suspicion. The candidate meets the Minister of his party on the 16th. The returning officer takes the unusual steps of sending a telegram for instructions from government for inclusion of names in the electoral roll. The Secretariat despatches an Under Secretary to reach Bidar by air dash and long car drive. A meeting between the Under Secretary and the electoral registration officer follows and then the Under Secretary winds up the day by meeting the Minister, presumably to report things done, and the registration officer supplements the electoral roll by including 16 more names, without getting the gazette notification. We have no doubt, as we will presently explain, that this inclusion is invalid, but what we are presently concerned with is the protracted inaction for years of the State government in issuing simple notifications to resuscitate the Bidar Board and the sudden celerity by which a quick chase and spurt of action resulting in a Minister 's endorsement, the regis tration officer 's telegram, Secretariat hyper busyness, the unusual step of an Under Secretary himself journeying with government orders to be delivered to the registration officer, the electoral registration officer hastening to amend the, electoral roll slurring over the legal require ment of a gazette notification and making it appear that everything was done on the 17th before mid night, and a few other circumstances, make up a complex of dubious doings designed to help a certain candidate belonging to the party in power. The officers had no, personal interest as such and, in fairness, we must state the High Court has exonerated them of any oblique conduct to further their own interests. We wish to state clearly that having taken a close look at the developments we are not inclined to implicate any of the officers and there are quite a few involved with mala fide conduct or collusion with the returned candidate. Legal peccadilloes are not fraud or collusion without more. However, the performance of the political government and the pressurization implicit in the hectic activities we have adverted to, read in the light of the likely political gains accruing to the party in power, generate apprehensions in our minds about the peril to the electoral process if poli tical bosses in office rubberise the public services to carry out behests which are contrary to the law but non compliance with which might be visited with crypto punitive consequences. We would have taken a harsher view against the public servants bad we something more than what may even be a rather strong suspicion of obliging deviance. Sometimes they are transfixed between Scylla and Charybdis. Even 200 strong suspicion is no substitute, for proof. It has often been said that suspicion is the Upas tree under whose shade reason fails and justice dies. There is, a core of truth in this caveat. Shri Bhat, counsel for the 1st respondent, argued his case strenuously but could not make out that vital nexus between the candidate who stood to gain and the officers whose action he impugned. over, the movements of the Minister at about that time raises doubts and the huge expenditure involving in rushing an Under Secretary from Bangalore by air and road to Bidar were a drain on the public exchequer which could have been avoided if action had been taken in time by a few postal communications. But the trial judge erred in substituting suspicion for certitude and drawing untenable inferences where paucity of evidence snapped the nexus needed for collusion. A court must, as usual, ask for proof beyond reasonable doubt from the party setting up corrupt practice even when there is a veneer of power politics stooping to conquer and officers thereby becoming vulnerable to 'higher displeasure. The faith of the people in the good faith of government is basic to a republic. The administrative syndrome that harms the citizens ' hopes in the State often manifests itself in callously slow action or gravely suspicious instant action and the features of this case demonstrate both. Pi Admittedly, the Bidar Board elections were substantially over in 1968 and were more or less complete in 1972 and yet the necessary notifications in the gazette, which are the statutory precondition for the local body to be legally viable, were, for years, not published and, when the critical hour for the electroal list to be finalised fell at 3 p.m. on April 17, 1974, the government and its officer,,, went through exciting exercises unmindful of legal prescriptions and managed the illegitimate inclusion of 16 names in the electoral roll. We hope that the civil services in charge of electoral processes which are of grave concern for the survival of our democracy will remember that their masters in statutory matters are the law and law alone, not political superiors if they direct deviance from the dictates of the law. It is never to be forgotten that our country is committed to the rule of law and therefore functionaries working under statutes, even though they be government servants, must be defiantly dedicated to the law and the Constitution and, subject to them, to policies, projects and directions of the political government. "Be you ever so high, the law is above you" this applies to our Constitutional order. Shri Bhat, counsel for the 1st respondent ultimately argued these aspects of the case. But, when we were more than half way through, it became clear that the material link to make out invalidation of the election on account of 'corrupt practice under section 123(7) of the 1951 Act was missing because it had not been made out in the evidence that there was collusion between the 2nd respondent and the appellant. At that stage, taking a realistic stance, counsel acceded to our view that while there was sufficient room for the 1st respondent to be 201 disturbed about the electoral verdict on the score of the inclusion of 16 names there was not any telling material, other than speculation or weak suggestion, that there was corrupt participation on the part ,,of the officers. If this position were right and we hold it is what remains to be done is to ascertain the legal effect of the inclusion in the electoral roll of the new names after the expiry of the appointed ,hour and date. According to the calendar for the poll contemplated in section 30 of the 1951, Act the last date for making the nominations was appointed as April 17, 1974. Section 33(1) of the 1951 Act requires that each , candidate shall deliver to the Returning officer a nomination paper as set out in the section : "between 11 o 'clock in the forenoon and 3 o 'clock in the afternoon". The appellant and the 1st respondent did ,file their nominations in conformity with sections 30 and 33 of the 1951 Act but the electoral registration officer 2nd respondent in the appeal), included the names of 16 persons representing the Bidar Board after 3 p.m. of April 17, 1974. There is a dispute between the parties as to whether such inclusion was directed on the 17th (after 3 p.m.) or on the 18th, the former being the case of the appellant as well as the 2nd respondent, the latter being the case of the 1st respondent and upheld by the High Court. The Court held that, in law, any inclusion of additional names in the electoral roll of a constituency after 3 p.m. on the last date for making nomination fixed under section 30(a) of the 1951 Act was illegal. Consequently. it arrived at the follow up decision that the 16 votes which had been cast by those objectionably added, had to be ignored. On a further study of the evidence, the Court concluded that these 16 votes had been cast in favour of the elected candidate and should therefore be deducted from his total tally. The appellant, who had secured 64 votes as against respondent no. 1 's 54, had only a lead of 10 votes. He slumped below the 1st respondent when 16 votes were deducted from his total. The necessary result, in the view of the High Court, was that not only had the appellant 's election to be set aside but the 1st respondent deserved to be declared duly elected. This was done. An appreciation of the evidence bearing on the question as to whether the 2nd respondent i.e., the Registration officer bad acted under the appellant 's oblique influence in including the additional names after the last date for such inclusion, has led us to overturn the affirmative answer from the learned trial judge. The holding that a 'corrupt practice ', within the ambit of section 123, had been committed by the appellant who was therefore disqualified under section 8A led to two consequences. The appellant, who had won the election at the polls, lost the election in the court and, worse still, suffered a six year disqualification. The doubly aggrieved appellant has challenged the adverse verdict and the wounded 2nd respondent (electoral registration officer) has separately appeared to wipe out the damaging effect of the obliging inclusion of names of electors after the time set by the law was over. We have already set aside the finding under section 123(7) of the 1951 Act, of corrupt practice and with it falls the disqualification. 2 768 SCI/77 202 The short point, whose impact may be lethal to the result of the election, is as to whether section 23 of the 1950 Act should be read down in conformity with sections 30 and 33 of the 1951 Act. The proposition,, which has appealed to the High Court, has the approval of the ruling in Baidyanath(1). The Court, there, observed: "in our opinion cl. 23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date before the completion of that election. It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. Therefore it is not a question of irregular exercise of power but a lack of power. (p.842 We have earlier come to the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27, 1968. Therefore votes of the electors whose names were included in the roll on that date must be held to, be void votes." (p. 843) There is a blanket ban in section 23(3) on any amendment, transposition or deletion of any entry or, the issuance of any direction for the inclusion of a name in the electoral roll of a constituency 'after the last date for making nominations for an election in that constituency. This prohibition is based on public policy and serves a public purpose as we will presently bring out. Any violation of such a mandatory provision conceived to preempt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity and we have, therefore, no doubt that if in flagrant violation of section 23(3), names have been included in the electoral roll, the bonus of such illegitimate votes shall not accrue, since the vice of avoidance must attach to such names. Such void votes cannot help a candidate win the contest. Why do we say that there is an underlying public policy and a paramount public purpose served by section 23(3) ? In our electoral scheme as unfolded in the 1951 Act, every elector ordinarily can be a candidate. Therefore, his name must be included in the list on or before the date fixed for nomination. Otherwise he losses his valuable right to run for the elective office. It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. There is another equally valid reason for stressing the inclusion of the names of all electors before (1) [1970] 1.S.C.R. 839. 203 the hour for delivering to the returning officer the nomination paper. Section 33(4) of the 1951 Act reads "(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the Candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : x x x x" In the light of this provision the returning officer, on receipt of the nomination paper, satisfies himself that the candidate 's name and electoral roll number are correctly entered. Necessarily, this is possible only if the electoral roll contains the names of all the electors. Likewise, section 33(5), which deals with a candidate who is an elector from a different constituency, requires of the candidate the production of a certified copy of the relevant entry showing his name in such a roll. The inference is inevitable that there must be a completed electoral roll when the time for filing the nomination paper expires. The argument is therefore incontrovertible that the final electoral roll must be with the returning officer when the last minutes for delivering the nomination paper ticks off. Subsequent additions to the electoral register will inject confusion and uncertainty about the constituents or electors, introduce a disability for such subsequently included electors to be candidates for the election and run counter to, the basic idea running through the scheme of the Act that in the preponderant pattern of elections, viz., for the legislative assemblies and parliament, the electors shall have the concomitant right of being candidates. The cumulative effect of these various strands of reasoning and the rigour of the language of section 23(3) of the 1950 Act leaves no doubt in our minds that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency, must be visited with fatality. Such belated arrivals are excluded by the talons of the law, and must be ignored in the poll. It is appropriate to quote from Baidyanath(1) here : "The object of the aforesaid provision is to see that to the extent possible, all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls all those who are not qualified to be registered. Sub section (3) of section 23 is not an important exception to the rules noted earlier. It gives a mandate to the electoral registration officers not to amend, transpose, or delete any entry in the electoral roll of a constituency after the last date for making nominations for election in that constituency and before the completion of that election. If there was no such provision, there would have been room for considerable manipulations, particularly when there are only limited number of electors in a constituency. But for that (1) ; ,842. 204 provision, it would have been possible for the concerned authorities to so manipulate the electoral rolls as to advanced the prospects of a particular candidate. " A more trickly issue now arises, Assuming April 17, 1974 to be the last date for filing nominations (and it is so in the case), can the electoral roll be amended on that date to include additional names, but after the hour set for presenting the nomination paper ? Section 33(1) specifies inflexibly that the nomination paper shall be presented between the hours of 11 o 'clock in the forenoon and 3 o 'clock in the afternoon '. That means that the duration of the day for presentation of nomination papers terminates at 3 o 'clock in the afternoon. If an elector is to be able to file his nomination paper, his name must be on the electoral roll at 3 p.m., on the last day for filing nominations. So the temporal terminus adquem is also the day for finalisation ofthe electoral register and by the same token, that day terminates atjust that hour when the returning officer shuts the door. The day is truncated to terminate with the time when reception of nominations closed. Section 23 of the 1950 Act does state that the inclusion of the names in the electoral roll can be carried out till the last date for making nominations for an election in the concerned constituency. What, then, is the last date? When does the last date cease to be? If the purpose of the provision were to illumine its sense, if the literality of the text is to be invigorated by a sense of rationality, if conscionable commonsense were an attribute of 'statutory construction, there can hardly be any doubt that the expression 'last date for making nominations ' must mean the last hour of the last date during which presentation of nomination papers is permitted under section 33 of the 1951 Act. In short, section 23 (3) of the 1950 Act and section 33(1), (4) and (5) of the 1951 Act interact, fertilise and operate as a duplex of clauses. So viewed, the inclusion of the names in the electoral roll after 3 p.m., on April 17, 1974, is illegitimate and illegal. At this stage, it may be appropriate to make reference to Ramji Prasad Singh(1) to which one of us was a party. Indeed, attention of counsel was invited to this decision by the Court. That case turned on the inclusion of 40 voters in contravention of section 23(3) of. the 1950 Act. By incorporating in the electoral roll new names after the last date for filing nomination, this Court held that such inclusion of new names would be clearly in breach of the mandate contained in section 23(3) of the 1950 Act and, therefore, beyond the jurisdiction of the electoral registration officer. This view is precisely what we have taken in the present case. In that case this Court, on fact, took the view that the communication from the Chief Executive Officer of the local authority to substitute certain new names in the electoral roll could not have been acted upon (1) ; 205 before April 6, 1972, the last date of nomination being April 5, 1972.This is clear from the following observation in the judgment : "In fact the letter was 'diarised ' by Shri Bose 's office on the 6th. The fact of the matter seems to be that the notifications of the 4th April came too late for being acted upon before the dead line, which was the 5th. The red tape moved slowly, the due date expired and then every one awoke to the necessity of curing the infirmity by hurrying with the implementation of the notifications. But it was too late and the law had already put in seal on the electoral roLL as it existed on the 5th April. It could not be touched thereafter, until the completion of the election. " This Court, in that case, observed that it was 'impossible to accept the half hearted claim of Shri Bose that he passed orders for inclusion of the new names on the 5th itself '. This Court was not called upon to go into the question as to what would be the legal position if the electoral rolls were actually amended at 11.30 p.m. on 5th April after the last hour for the nomination, viz., 3 p.m. on that day. This finer facet which falls for consideration in the present appeal viz., whether the 'last day ' contemplated in section 23(3) of the 1950 Act ends at 3 p.m. on that day for the purpose, or continues until mid night did not actually arise for judicial investigation in Ramji Prasad 's Case(supra). The upshot of the above interpretation is that the 16 names which have been brought into the electoral register subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to determine the returned candidate. The learned Judge has declared the 2nd respondent duly elected on the strength, mainly, of inference drawn from the oral evidence of the rival candidates. The ballots are alive, and available and speak best. Why, then, hazard a verdict on the flimsy foundation of oral evidence rendered by interested parties ? The vanquished candidate 's apse digits or the victor 's vague expectations of voters ' loyalty the grounds relied on are shifting sands to build a firm finding upon, knowing how notorious is the cute art of double crossing and defection in electoral politics and how undependable the testimonial lips of partisans can be unless authenticated by surer corroboration. Chancy credulity must be tempered by critical appraisal, especially when the return by the electoral process is to be overturned by unsafe forensic guesses. , And where the ground for recount has been fairly laid by testimony, and the ballot papers, which bear clinching proof on their bosoms, are at hand, they are the best evidence to be looked into. No party can run away from their indelible truth and we wonder why the learned judge avoided the obvious and resorted to the risky. May be thought reopening and recount of ballots may undo the secrecy of the poll. We are sure that the correct course in the circumstances of this case is to send for and scrutinize the 16 ballots for the limited purpose of discovering for whom, how many of the invalid sixteen have been cast. Secrecy of ballot shall be maintained when scrutiny is conducted and only that part which reveals the vote (not the persons who voted) shall be open for inspection. 206 What, then, is the result of the reasonings which have prevailed with us ? It is simply this, viz., that the 16 votes of the members of the Bidar Board should be excluded and the consequential tilting of the result re discovered. We are, therefore, constrained to direct the High Court to send for the ballot papers and pick out the 16 ballots relating to the Bidar Board members, examine them without exposing the identity of the persons who have voted and to whom they have voted and record a rectally excluding these 16 tainted votes from the respective candidates. It the resultant balance sheet shows that the appellant has polled less valid votes than the 1st respondent, his election will be set aside and the 1st respondent declared duly elected. If, on the other hand, despite these deletions the appellant scores over the 1st respondent, his return will be maintained. Any way, counsel on both sides agree that the best course will be to call for a report from the High Court in the light of the operations above indicated. The learned Single Judge who heard the case will examine the 16 ballots as directed above consistently with natural justice, record the number of votes out of the 16 each has got and forward to this Court a comprehensive and correct statement with the necessary particulars. This report shall be made within 3 weeks from the receipt of the records from this Court and the appeal shall be posted for disposal immediately the report reaches. With these directions we dispose of the appeal pro tempore. By way of post script, we may state that counsel for the 1st respondent submitted, after we crystallized the directions indicated above, that he was not too sure whether the 16 ballot papers could be identified. The appellant 's counsel, however, asserted that there were numbers indelibly imprinted on the reverse of the ballot papers and, as such, the identification of 16 impugned votes may not present a problem. In the event of impossibility of fixing identity, a report to. that effect will be forthcoming from the High Court and we may, notwithstanding the observations about the oral evidence made above, rehear the case with a view to record our finding as to which way the voting went, out of the offending 16, so that we may determine whether the result of the election has been materially affected. If it is not possible, further suitable directions will be considered. We may also mention that at one stage of the arguments Shri L.N. Sinha drew our attention to a designedly wide amendment to the Act of 1951 made in the wake of the election case of Smt. Indira Gandhi. Its validity, for our provisions, has been upheld by this Court in Smt. Indira Nehru Gandhi vs Raj Narain(1). It was pressed before us that with the re definition of 'candidate ' in section 79(b) and the addition of a proviso to section 127(7), by Act XL of 1975, the present election petition had met with its statutory Waterloo. But Shri Bhat urged that his averments of officials ' abetment of promotion of the appellant 's candidacy related also to a point of time after the nomination paper was filed. He also submitted that the imputations against the electoral registration officer were so far beyond his duties that the blanket proviso could not protect the acts. Since we have taken the view that corrupt practice, even under the amended section 123(7), has not been established, (1) 207 the pronouncement on the exonerative efficacy of the amended Act does not arise. But officials must realise and so too the highest in Administration that the proviso to section 123(7) does not authorise ,out of the way doings which are irregular. A wrong does not become right if the law slurs over it. We part with this case with an uneasy mind. There is a finding by the High Court that an influential candidate had interfered with officials to adulterate an electoral roll. We have vacated the finding but must warn that the civil services have a high commitment to the rule of law, regardless of covert commands and indirect importunities of bosses inside and outside government. Lord Chesham said in the House of Lords in 1958 : "He is answerable to law alone and not to any public authority.". A suppliant, obsequious, satellite public service or one that responds to allurements promotional or pecuniary is a danger to a democratic polity and to the supremacy of the rule of law. The courage and probity of the hierarchical election machinery and its engineers, even when handsome temptation entices or huffy higher power browbeats, is the guarantee of electoral purity. To conclude, we are unhappy that such aspersions against public servants affect the integrity and morale of the services but where the easy virtue of an election official or political power wielder has distorted the assembly line operations, he will suffer one day. Be that as it may, we express no final opinion beyond what has already been said. P.B.R. Appeal allowed in part.

Article 171(3) of the Constitution of India provides that of the total number of members of the Legislative Council of a State one third shall be elected by electorates consisting of members, among others, of local authorities in the State as Parliament may by law specify. Part IV of the Representation of the People Act, 1950 which deals with electoral rolls for council constituencies provides in section 23(3) that no amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section after the last date for making nominations for election in that constituency. Section 33(1) of the Representation of the People Act, 1951 requires that each candidate shall deliver to the Returning Officer a nomination paper "between 11 o 'clock in the forenoon and 3 o 'clock in the afternoon. " By a notification issued under section 30 of the Representation of the People Act, 1951 the Electoral Registration Officer appointed April 17, 1974 as the last date for presenting nomination papers from the local authorities constituency. In the election that ensued the appellant was declared elected with 64 votes polled by him as against 54 polled by respondent No. 1. In his election petition the respondent alleged that the appellant, in collusion with the electoral officer, surreptitiously introduced names of 16 persons representing a taluk board after 3 p.m. on April 17, 1974 and that this act of his constituted a corrupt practice within the meaning of section 123 of the 1951 Act and that the election was void. The High Court set aside the election on the ground that any inclusion of additional names in the electoral roll of a constituency after 3 p.m. on the last date for making nominations fixed under section 30(a) was illegal, and after deducting the 16 votes cast by those persons from the total votes polled by the appellant, declared the respondent duly elected. Allowing the appeal in part and remitting the case to the High Court. HELD : (1) There was no telling material other than speculation or weak suggestion that there was corrupt participation on the part of the officers. The material link to make out invalidation of the election on account of corrupt practice under section 123(7) was missing because it had not been made out in the evidence that there was collusion between the second respondent and the appellant. [201A] 2. (a) The expression 'last date for making nominations ' must mean the last hour of the last date during which presentation of nomination papers is permitted under section 33 of the 1951 Act. In short section 23(3) of the 1950 Act and section 33(1), (4) and (5) of the 1951 Act interact, fertilise and operate as a duplex of clauses. So viewed the inclusion of the names in the electoral roll after 3 p.m. on April 17, 1974 is illegitimate and illegal. [204F] The sixteen names brought into the electoral register subsequent to 3 p.m. of April 17, 1974 must be excluded from the reckoning to determine the returned candidate. [205E] 194 Baidyanath ; and Ramji Prasad Singh ; referred to. (b)The prohibition contained in section 23(3) of the 1950 Act is based on public policy and serves a public purpose. Any violation of such a mandatory provision conceived to pre empt scrambles to thrust into the rolls, after the appointed time, fancied voters by anxious candidates or parties spells invalidity and there can be no doubt that if, in flagrant violation of section 23(3), names have been included in the electoral roll, (he bonus of such illegitimate votes shall not accrue, since the vice of viodance must attach to such names. [202F] (c)In our electoral scheme as unfolded in the 1951 Act every elector ordinarily can be a candidate. Therefore, his name must be included in the list on or before the date fixed for nomination. Otherwise he loses his valuable right to run for the elective office. It is thus vital that the electoral registration officer should bring in the names of all the electors into the electoral roll before the date and hour fixed for presenting the nomination paper. [202G H] (d)Section 33(1) specifies that the nomination paper shall be presented "between the hours of 11 o 'clock in the forenoon and 3 o 'clock in the afternoon". That means that the duration of the day for presentation of nomination papers terminates at 3 o 'clock in the afternoon. If an elector is to be able to file his nomination paper, his name must be on the electoral roll at 3 p.m. on the last day for filing nominations. So the temporal terminus ad quem is also the day for finalisation of the electoral register and by the same token, that day terminates at just that hour when the returning officer shuts the door. [204C] (e)The inference that could be drawn from section 33(4) is that there must be a completed electoral roll when the time for filing the nomination paper expires. Therefore, the final electoral roll must be with, the returning officer when the last minute for delivering the nomination paper ticks off. Subsequent additions to the electoral register will inject confusion and uncertainty about the constituents or electors, introduce a disability for such subsequently included electors to be candidates for the election. [203D] (f)The cumulative effect of the various strands of reasoning and the rigour of the language of s.23(3) of the 1950 Act leaves no doubt that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency, must be visited with fatality. [203E] [The case had been sent to the High Court for scrutinising the 16 ballots for the limited purpose of discovering for whom, bow many of the invalid sixteen had been cast.]

Civil Appeal No. 2533 of 1969. Appeal by special leave from the Award dated the 25th June, 1969 of the Central Government Industrial Tribunal, Calcutta, in Reference No. 35 of 1968. M. K. Ramamurthi, Ramesh Pathak, Vineet Kumar for the Appellants. G. P. Pai, o. c. Mathur, D. N. Mishra and J. B. Dadachanji & Co. for Respondent. The Judgment of the Court was delivered by BHAGWATI, J. This appeal by special leave is directed against an award made by the Industrial Tribunal, Calcutta in a reference between the National and Grindlays Bank Ltd. (hereinafter referred to as the Bank) and its workmen represented by the All India National & Grindlays Bank Employees Federation. The Bank is a banking company within the meaning of section 5 of the Banking Companies Act, 1949 and has its Head office in London and branch offices in different parts of the world, including India. The principal office of the Bank in India is situate in Calcutta. The Bank maintains its accounts according to the calender year and it brings out not only a consolidated balance sheet and profit and loss account for its world business, but also a separate balance sheet and profit and loss account for its Indian business. There was an industrial dispute between the Bank and its workmen in regard to bonus for the years 1956 to 1964 and as a result of negotiations, this industrial dispute was settled between the parties on an ad hoc basis under a Memorandum of Settlement dated 28th r. December, 1965. The material terms of the settlement were: "1. The Bank will pay and the workmen and non work men staff will receive a sum of Rs. 27 lakhs (Rupees twenty seven lakhs only) in full and final settlement of all bonus claims covering the periods from 1st January 1956 to 31st December 1964, including any claims relating to Centenary Bonus. 134 2. The above sum of Rs. 27 lakhs will be allocated as to one third thereof to Award staff only and as to the remaining two thirds to both the Award and non Award staff, in both cases based on the basic salary paid over the period, namely, 1st January, 1956 to 31st December, 1964, and unrelated to any particular year. The parties agree that this Settlement shall not be taken as the basis or govern the principle for this determination of bonus in future, but nevertheless this Settlement shall be final and binding on the parties as regards bonus claims for the years 1956 to 1964 (both inclusive) and any claim relating to Centenary Bonus, as also regards qualifications for eligibility and procedures as set out above. It may be noted that this Settlement was arrived at between the parties after the came into force on 25th September, 1965. This Act provided a statutory formula for computation and payment of bonus and it was admittedly applicable in respect of the accounting year 1964, but no separate computation of bonus for that year was made in accordance with this statutory formula and it was settled on an ad hoc basis as a part of an omnibus settlement for the accounting years 1956 to 1964. So far as the claim for bonus for the accounting year 1965 was concerned, computation was made in accordance with the statutory formula provided in the and the maximum 20% of the salary or wage earned during that accounting year was paid by way of bonus to the workmen. The claim for bonus for the accounting year 1966, however, could not be settled between the parties and, though the Bank paid , 18% of the wage or salary earned by the workmen during that accounting year as bonus, the workmen were not satisfied and the industrial dispute arising from their claim had to be referred for adjudication. There were different aspects of this industrial dispute which required consideration and the Central Government, therefore, formulated each aspect as a separate question and referred those questions for adjudication to the Industrial Tribunal, Calcutta. The Industrial Tribunal made an award holding that, on an application of the statutory formula, the amount available for payment of bonus was Rs. 22.17 lakhs and The workmen were, therefore, entitled to a little over 9% of their salary or wage as bonus, but since they had already been paid by the Bank bonus at the rate of 18% of their salary or wage, which was much more than what they were entitled to receive, nothing further remained to . be paid and they were not entitled to any relief. This award is impugned in the present appeal brought by the workmen with special leave. There are only certain items in the computation of bonus which are now in dispute in the appeal before us and we shall confine our attention to them. But before we deal specifically with these items, it could be convenient to refer to some of the relevant provisions of the . We will refer only to those provisions which have a bearing on the items in dispute between the parties. Section 2 is the definition section and cl. (13) of that section defines 'employees 135 to mean any person employed on a salary or wage not exceeding one thousand and six hundred rupees per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward. The mode of computation of gross profits in the case of a banking company is laid down in section 4, cl. (a) which provides that the gross profit shall be calculated in the manner specified in the First Schedule. The First Schedule sets out in items 2, 3 and 4 various amounts which are to be added and in item 6, various amounts which are to be deducted from the net profit as shown in the profit and loss account. We are concerned in this is appeal only with items 2, 3(a) and 6(e) which read as follows: Item No. Particulars Amount of Amount of Remarks sub items main items 2. Add back provision for (a) Bonus to employees (b) Depreciation (c) Development Rebate Reserve. (d) Any other reserves Total of Item No. 2 Rs. 3. Add back also (a) Bonus paid to employees in respect of previous accounting years. 6 Deduct: (e)In the case of foreign ; banking companies proportionate administrative (overhead) expenses of Head, office allocable to Indian business The concept of 'available surplus ' is defined in section 2, cl. (6) to mean available surplus computed under section 5 and that section lays down that the available surplus in respect of any accounting year shall be the gross profit of that year after deducting therefrom the sums referred to in s 6 Clauses (a) and (d) of section 6 provide that the following sums shall be deducted from the gross profits as prior charge, namely: "(a) any amount by way of the depreciation admissible in accordance with the provisions of sub section (1) of section 32 pf the Income Tax Act, or in accordance with the provisions of the agricultural income tax law, as the case may be:" "(d) such further sums as are specified in respect of the employer in the Third schedule The Third Schedule is rather material as it bears on one item in dispute between the parties. Clauses (ii) and (iii) of the proviso to item 2 . in the Third Schedule enact that in case of a banking company which is a foreign company within the meaning of section 591 of the Companies 10 390SCI/76 Bank in the present case being such banking company the amount to be deducted shall be the aggregate of "(ii) 7.5 per cent. Of such amount as bears the same pro r portion to its total paid up equity share capital as its total working funds in India bear to its total world working funds; (iii) 5 per cent of such amount as bears the same proportion to its total disclosed reserves as its total working funds r in India bear to its total world working funds;" Then we come to the concept of allocable surplus which is defined in section 2, cl. (4) and under that clause, 60% of the available surplus is to be taken to be the allocable surplus and it is this allocable surplus which is to be distributed by way, of bonus to the workmen, subject to a limit of 20 per cent. Of the total salary or wage of the employees employed in the establishment. 10, sub sec. (1) provides for payment of a minimum bonus of 4 per cent. Of the salary or wage earned by the employees, irrespective whether or not there are profits in the accounting year, and sub sec. (1) of section 11 lays down that where the allocable surplus exceeds the amount of minimum bonus payable under section 10, sub section (1) "the employer shall, in lieu of such minimum bonus, be bound to pay to every employee in the accounting year bonus which shall be an amount in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of twenty per cent of such salary or wage". 15 is the next material section and it provides, inter alia: " (1) Where for any accounting year the allocable surplus exceeds the amount of maximum bonus payable to the employees in the establishment under sec. 11, then, the excess shall, subject to a limit of twenty per cent, of the total salary or wage of the employees employed in the establishment in that accounting year, be carried forward for being set on in the l succeeding accounting year and so on up to and inclusive or the fourth accounting year to be utilised for the purpose of payment of bonus in the manner illustrated in the Fourth t Schedule. (2) Where for any accounting year, there is no available surplus or the allocable surplus in respect of that year falls short of the amount of minimum bonus payable to the employees in the establishment under sec. 10, and there is no amount or sufficient amount carried forward and set on under sub sec. (1) which could be utilised for the purpose of payment of the minimum bonus, then, such minimum amount or the deficiency, as the case may be, shall be carried forward for being set off in the succeeding accounting year and so on up to and inclusive of the fourth accounting year in the manner illustrated in the Fourth Schedule. (4) Where in any accounting year any amount has been carried forward and set on or set off under this section, then, in calculating bonus for the succeeding accounting year, the ` u, 137 amount of set on or set off carried forward from the earliest A accounting year shall first be taken into account. ' Sec. 34, sub section (3) enables employees employed in any establishment or class of establishments to enter into agreement with their employer for grant of bonus under a formula which is different from that under the , so long as it does not deprive them of the minimum bonus payable under section 10, sub sec. It is in the light of these provisions that we have to consider the various points arising For determination in the appeal. We will first take us for consideration question No. 2 referred to the Industrial Tribunal. That question` raises the issue whether any amount is liable to be carried forward for being set on in the accounting year 1956 and if so, what amount. The claim of the workmen was that there was excess of allocable surplus over the amount of maxi mum bonus in both accounting years 1964 and 1965 and the excess in respect of both these years was, by reason of section 15, sub section (1), liable to be carried forward for being set on in the succeeding accounting year 1966. Now, so far as the claim in respect of the accounting year 1965 was concerned, the amount to be carried forward and set on was settled at the figure of Rs. 10.23 lacs under an agreement arrived at between the parties and no dispute, therefore, survived in respect of that claim. But the claim in respect of the accounting year 1964 was strongly resisted on behalf of the Bank and a preliminary objection was raised that the question whether any amount was liable to be carried forward and set on out of the profits of the accounting year 1964 did not form the subject matter of the reference and hence this Court, in appeal from the Industrial Tribunal, had no jurisdiction to adjudicate upon this question. We do not think there is any substance in this preliminary objection. Question No. 2, referred to the Industrial Tribunal, in terms raises the issue "whether any amount is to be carried forward for being set on in the accounting year 1966", and this issue is wide enough to cover the question in regard to carry forward and set on of an amount out of the profits of the accounting year 1964. The Bank then contended that since the bonus payable for the accounting year 1964 was settled on an ad hoc basis, it was not possible to say that the allocable surplus exceeded the maximum bonus payable for that year and hence there could be no question of any excess to be carried forward and set on in the succeeding year. There is great force in this contention. Sec. 15, sub section (1) provides for carry forward and set on and, on its plain terms, it comes into operation only when, in a given accounting year, the allocable surplus exceeds the maximum bonus pay able under the Act, so that after payment of the maximum bonus there is surplus left which can be carried forward and set on, subject, of course, to the limit of 20 per cent. Of the total salary or wage. It is clear from the scheme of the Act and the context in which this sub section occurs, following closely upon sections 4 to 10, that the basic condition for the applicability of this sub section is that bonus is computed in accordance with the statutory formula provided in the preceding sections of the Act and as a result of such computation, it is found that the allocable surplus is more than sufficient . to cover the maximum bonus payable under the Act and where such is the case, the sub section provides that the excess over the amount of the maximum bonus 138 shall, to the extent of 20 per cent. Of the total wage or salary, be carried forward and set on in the succeeding year. This sub section can have no application where no computation is made under the Act and bonus is paid, not in accordance with the statutory formula, but on an ad hoc basis. Then it is not possible to say what was really the bonus payable under the Act. It may be less or more than the bonus in fact paid. That inquiry being rendered irrelevant by the ad hoc settlement, there can be no question of carry forward and set on of any amount, unless specifically agreed upon as part of the settlement. The workmen in the present case were, therefore, not entitled to contend that, though the claim for bonus for the accounting year 1964 was settled on an ad hoc without making computation under the provisions of the Act, such computation must now be made, not for the purpose of determining the bonus payable to them, which is the only purpose for which such computation is contemplated to be made, but for the purpose of determining whether there is any amount liable to be carried forward and set on. The claim of the workmen for carry forward and set on in respect of the accounting year 1964 must accordingly stand rejected. We now, proceed to consider the items in dispute in the computation of 'available surplus ' for the accounting year 1966, which fall within question No. 1 referred to the Industrial Tribunal. The first item to which we must refer is the item of provision for bonus to employees made in the profit and loss account. This item figures as item 2(a) in the First Schedule to the Act and it is required to be added back in the computation of the gross profits under section 4(a). Now, so far as the profit and loss account of the Bank in respect of its Indian business was concerned, the provision for bonus to employees did not figure in it as a separate item, but, according to the Bank, it was included under the heading "Salaries and Allowances" or "other Expenditure" and it came to Rs. 19.52 lakhs. The Bank thus agreed to an add back of Rs. 19.52 lakhs in respect of provision for bonus to employees. The workmen, however, contended that the provision for bonus made by the Bank was for a much larger amount and the amount of Rs. 19.52 lakhs represented provision for bonus only in respect of those workmen who were 'employees ' within the meaning of section 2, cl; (13) and the Bank had failed to take into account the provision for bonus in respect of those workmen who were not such 'employees '. The argument of the workmen was that the word 'employees ' in item 2(a) of the First Schedule was not limited to 'employees ' as defined in section 2, cl. (13), but covered all employees, because the object of adding back provision for bonus to employees was to arrive at the figure of profit available for distribution of bonus and that required that the entire amount set apart as provision for bonus `should be added back, for in determining what is the available fund with reference to which bonus should be paid, one cannot ' exclude the amount already paid or provided as bonus, whether to employees drawing more than Rs. 1600/ or to employees drawing less. It is true, said the workmen, that the word 'employees ' is defined in section 2, d. (13), but they contended that every definition is subject to the requirement of the context and here the context clearly showed that the word 'employees ' was not used in the restricted sense, but in a wider sense, including all employees. Now, this argument of the workmen would have required serious consideration by us, but we do not 139 think we can permit the workmen to raise it, as it does not appear to have been advanced by them before the Industrial Tribunal. The award of the Industrial Tribunal does not show that this argument was at any time urged by the workmen. The only argument raised by the workmen before the Industrial Tribunal was that the amount of bonus payable to them for the accounting year 1966 was Rs. 38.66 lacs representing 18 per cent. Of their wage or salary and this amount of Rs. 38.66 lacs was liable to be added back and not the amount of Rs. 19.52 lacs this argument was rightly rejected by the Industrial Tribunal because what is liable to be added back under Item 2(a) of the First Schedule is not the amount of bonus payable to the workmen, nor the amount of bonus in fact paid, but the provision for bonus made in the profit and loss account. We cannot, therefore, permit the workmen to raise a new contention for the first time in this Court that the provision for bonus liable to be added back was not merely the provision for bonus to 'employees ' as defined in section 2 cl. (13), but also the provision for bonus to workmen who were not such 'employees '. The next item in dispute relates to the amount liable to be deducted from the gross profits under section 6, cl. What is required to be deducted under this clause is the amount of depreciation admissible in accordance with the provisions of sub section (1) of section 32 of the Income Tax Act. Now, depreciation represents the diminution in value of a capital asset when applied to the purpose of making profit or gain. There are various methods known to accountancy practice for measuring such diminution in value and a banking company, like any other firm or company, may follow any one of these methods in maintaining its accounts and the amount of depreciation calculated according to such method would be reflected in its profit and loss account. But, though such amount of depreciation shown in the profit and loss account may be unexceptionable from the point of view of commercial accountancy principles, it would not necessarily be admissible as a deduction from gross profits under section 6,. d. (a). What is allowable as a deduction from the gross profits under that clause is not depreciation calculated according to any recognised method of accountancy followed by a banking company, but only such depreciation as is admissible in accordance with the provisions of sub section (1) of section 32 of the Income tax Act. The profit and loss account of the Bank for the accounting year 1966 showed an amount of Rs. 22.40 lacs debited against the composite item "Depreciation and Repairs to the Banking Company 's Property" and according to the Bank, this file included an amount of Rs. 1.89 lacs by way of depreciation. Now, there would be no difficulty if the Bank claimed to deduct only the amount of Rs. 1.89 lacs by way of depreciation under section 6, cl. (a), as that was the amount of depreciation debited in the profit and loss account. But the Bank claimed that, though it had debited by way of depreciation in the profit and loss account only an amount of Rs. 1.89 lacs, the amount of depreciation actually admissible in accordance with the provisions of sums. (1) of section 32 of the Income tax Act was Rs. 12.79 lacs and in support of this claim, the Bank produced a certificate issued by the Income Tax officer which was marked exhibit 12 in evidence. The Industrial Tribunal relying solely on the certificate exhibit 12 held that "depreciation admissible in accordance with the provisions of sub section (1) of s; 32 of the Income tax Act" 140 was Rs. 12.79 lacs as evidenced by the certificate exhibit 12 and the Bank was, therefore, entitled to deduct that amount from the gross profits under section 6, cl. This decision of the Industrial Tribunal was assailed before us and it was contended on behalf of the workmen that the burden of showing what was the amount of depreciation admissible in accordance with the provisions of sub section (1) of section 32 of the Income tax Act was on the Bank and this burden, the Bank had failed to discharge by producing proper evidence. The only evidence produced on behalf of the Bank, said the workmen, was the certificate exhibit 12 issued by the Income tax officer, but that certificate was no evidence and could not be taken into account for the purpose of holding that the depreciation admissible under sub section (1) of section 32 of the Income tax Act was Rs. 12.79 lacs. The Bank, however, contended that the workmen did not at any time dispute that the depreciation admissible under sub section (1) of section 32 of the Income tax Act was Rs. 12.79 lacs nor did they at any time challenge the correctness of the certificate exhibit 12 issued by the Income tax officer and in the circumstances, this certificate was sufficient to establish the claim of the Bank. Now, in the first place, it is not correct to. say that the workmen did not at any time dispute the correctness of the figure of depreciation claimed by the Bank. Both the workmen and the Bank filed their respective computations of bonus before the Industrial Tribunal and while the Bank, in its computation, claimed to deduct the amount of Rs. 12.79 lacs as depreciation, the workmen agreed to deduction only of the amount of Rs. 1.89 lacs as appearing in the profit and loss account. The workmen did not at any time accept the position that the correct amount of depreciation admissible under section 32, sub section (1) of the Income tax Act came to Rs. 12.79 lacs as claimed by the Bank. They seriously disputed it before the Industrial Tribunal and hence the Industrial Tribunal had to go into that question and come to a finding upon it. Even prior to the making of the reference, when the calculation sheet regarding bonus payable for the accounting year 1966 was sent by the Bank to the` workmen with its letter dated 26th July, 1967, the workmen by their letter dated 3rd August, 1967 called upon the Bank to furnish particulars in regard to the amount of Rs. 12.79 lacs claimed by the Bank as depreciation and the only reply given by the Bank to this demand was that the information required by the workmen went "far beyond any legal requirements" and the Bank was not in a position to accede to the same. Vide Bank letter dated 8th August, 1967. This circumstance would also show that the workmen did not accept the figure of depreciation claimed by the Bank. It is true that in the application made by the workmen to the Industrial Tribunal for certain clarifications on 8th January, 1969, the workmen did not ask for any clarification in regard to the amount of Rs. 12.79 lacs claimed by the Bank by way of depreciation, but if we look at this application, it will be clear that the clarifications sought by the workmen were 'on various aspects of the published balance sheet of the company for the accounting years 1 1 1966 to 31 12 1966 and other figures ' and there was no attempt at seeking clarifications in respect of the various items in the computation sheet filed by the Bank. Moreover. when these clarifications were sought by the application dated 8th January, 1969 the 141 controversy between the parties was already crystalised in their pleadings and it was clear from the computation sheets filed by them that there was real dispute in regard to the amount of depreciation and, therefore, mere failure on the part of the workmen to ask for clarification in respect of the amount of Rs. 12.79 lacs claimed by the Bank, could not justify an inference that the workmen had conceded the claim of the Bank and abandoned the dispute. There can be no doubt that the dispute in regard to the amount of depreciation was very much there between the parties and it had to be resolved by the Industrial Tribunal. It was not seriously disputed on behalf of the Bank, and indeed having regard to the well settled position in law it could not be so disputed, that since the Bank claimed the deduction of depreciation at a figure higher than that appearing in the profit and loss account, the burden of proving that the depreciation claimed by it was the correct amount of depreciation admissible under section 32, sub section (1) of the Income tax Act was on the Bank and that burden had to be discharged by the Bank by producing proper and satisfactory evidence. Though the Industrial Tribunal relied solely on the certificate exhibit 12 issued by the income tax Officer for the purpose of holding that that, the correct amount of depreciation admissible under section 32, sub section (1) was Rs. 12.79 lacs, the Bank in the course` of its arguments before us, placed reliance not only on this certificate but also on the oral evidence of A. K. Basu who was the Officer examined on behalf of the Bank. We will first consider the oral evidence of A. K. Basu and then examine how far the certificate exhibit 12 helps to establish the claim of the Bank. The statement in the 'oral evidence of A. K. Basu which was strongly relied upon on behalf of the Bank, was: "Under the Heading 'Prior Charge ', the figure against 'depreciation ' was collected from the income tax assessment order" and it was contended that since there was no cross examination of A. K. Basu in regard to this statement, it must be accepted as correct and that was sufficient to prove that the depreciation admissible under section 32 sub section (1) was Rs. 12.79 lacs. This contention is wholly fallacious and it proceeds upon a misreading of the statement made by A. K. Basu. It is no doubt true that A. K. Basu stated that the figure against depreciation was collected from income tax assessment order, but this statement was made in reference to the figure against depreciation appearing in the First Enclosure to Annexure (C) to the written statement of the workmen, which was the computation sheet containing calculation of bonus for the accounting year 1965. That is evident from the context in which this statement occurs. This statement finds place in the paragraph which contains answers given by the witness to the Industrial Tribunal and the six sentences preceding this paragraph as also the first sentence of this paragraph clearly show that the answers were in reference to the accounting year 1965. We have carefully scanned through the entire evidence of A. K. Basu, but we do not find in it any statement in regard to the amount of depreciation shown in the Second Enclosure to Annexure (C) to the written statement of the workmen, which contained the computation in regard to bonus for the accounting year 1966. There was no evidence given by A. K. Basu in regard to the amount of Rs. 12.79 lacs claimed by the Bark by way of depreciation in the computation sheet submitted by it. Not a word 142 was said about it by A. K. Basu in his evidence and apart from A. K. Basu, no other witness was examined on behalf of the Bank. There was therefore, clearly no oral evidence to support the claim of the Bank. Even if the statement of A. K. Basu that the figures against depreciation were collected from the income tax assessment order be construed as referring to the computation sheet in respect of the accounting year 1966, it does not advance the case of the Bank. The income tax assessment order for the accounting year 1966 admittedly did not show depreciation at the figure of Rs. 12.79 lacs and that figure could not, therefore, have been collected by M. A. K. Basu, from the income tax assessment order. Even if the words Income tax assessment order ' as appearing in his statement be read so as to include the income tax return, it was admitted that the relevant income tax return was not produced on behalf of the Bank, and moreover, A. K. Basu admitted in his cross examination that he did not prepare the income tax return and consequently it must follow that he had no personal knowledge of the correctness or veracity of the income tax return and what he stated had no probative or evidentiary value. That leaves for consideration the certificate exhibit 12 issued by the Income tax officer which was strongly relied upon on behalf of the Bank and on which the Industrial Tribunal rested its decision on this part of the case. It is clear on a plain natural reading of the language of section 6, cl. (a) that what is deductible under that clause is "depreciation admissible in accordance with the provisions of sub section (1) of section 32 of the Income tax Act" and not "depreciation allowed by the Income tax Officer in making assessment on the employer". It is the Industrial Tribunal which has to find for itself what is the amount of depreciation admissible under sub s.(1) of section 32 and it cannot abdicate its duty and surrender its judgment to what has been done by the Income tax officer while making assessment under the Income tax Act. Since depreciation . may be computed according to various methods recognized by accountancy principles, section 6, clause (a) while providing for deduction of depreciation, had to specify the method according to which depreciation to be deducted shall be calculated and it adopted the method specified in sub section (1) of section 32. But the calculation of depreciation in accordance with this method would necessarily have to be done by the Industrial Tribunal which is entrusted with the task of determining the amount of bonus by applying the statutory formula. Therefore, it is the industrial Tribunal which must in the exercise of its quasi judicial duty calculate the amount of depreciation by adopting the method set out in sub section (1) of section 32. The Industrial Tribunal cannot say that it will Blindly accept the figure of depreciation arrived at by another authority charged with the function of determining depreciation under a different statute. The determination of the Income tax officer in regard to depreciation admissible under section 32, sub section (1) can be taken into account as evidence only if there is some provision of law which provides to that effect. We do not find anything in the Income tax Act or in the or in any other pro vision of law which attaches presumption of accuracy to the determination of the Income tax officer in this matter or invests it with probative or evidentiary value in the proceedings before the Industrial Tribunal. And the reason for this is obvious because the workmen, who are sought 143 to be bound by the determination of the Income tax officer, would not be parties to the income tax proceedings and they would have no opportunity of putting forward their point of view before the determination is arrived at by the Income tax officer. Moreover, the possibility cannot be ruled out that the determination made by the Income tax officer may be wrong and he might have made a bona fide mistake in arriving at the figure of depreciation. If the workmen were to be held bound by the figure of depreciation determined by the Income tax officer, they would have no opportunity of challenging its correctness or showing that it is wrong, nor would they be able to verify the figure of depreciation by cross examination of the employer or his witnesses who may have calculated the same. That would be contrary to the established principles of judicial procedure. There can, therefore, be no doubt that the certificate issued by the Income tax officer was not admissible in evidence to prove the depreciation admissible under sub section (1) of section 32 and ordinarily we would have refused to rely upon it and directed the Industrial Tribunal to arrive at a fresh decision after giving opportunity to the Bank to prove its claim for depreciation by leading evidence, but we find that the certificate of the Income tax officer was admitted in evidence without any objection on the part of the workmen and at no stage of the hearing before the Industrial Tribunal, it was contended on behalf of the workmen that it was an inadmissible piece of evidence. If the workman had contended before the Industrial Tribunal that the certificate of the Income tax officer was not admissible in evidence, the Bank could have led other evidence to substantiate its claim for depreciation, but since no objection was raised on behalf of the workmen, the Bank contented itself by producing and tendering in evidence only the certificate of the Income tax officer. We do not, in the circumstances see why reason to interfere with the decision of the Industrial Tribunal in regard to the amount of depreciation deductible under section 6, clause (a). We then come to item 3(a) of the First Schedule which requires bonus paid to the employees in respect of the previous accounting years to be added back in computing gross profits. The amount paid to the employees in the accounting year 1965 was Rs. 13.27 lacs and the work men claimed that this amount of Rs. 13.27 lacs should be added back under item 3(a) of the First Schedule. The Bank, in the computation sheet filed by it, also showed this amount of Rs. 13.27 as an add back and, therefore there should really have been no dispute about it. But the Industrial Tribunal refused to permit the Bank to add back this amount of Rs. 13.27 lacs on the ground that "a sum out of 1965 account must not be allowed to adulterate the account of 1966". This was an obvious error committed by the Industrial Tribunal. The amount of Rs. 13.27 lacs paid to the employees in respect of bonus for the accounting year 1965 was clearly, on the plain terms of Item 3(a) of the First Schedule, liable to be added back and we direct the Industrial Tribunal to do so when the case goes back to it. The item which then requires to be considered is that under cl. (iv) of the proviso to Item 2. Of the Third Schedule. That clause provides that in the case of a banking company, any sum which, in 144 respect of the accounting year, is deposited by it with the Reserve Bank of India under section 11(2)(b)(ii) of the Banking Regulation Act, 1949 not exceeding the amount required under the said provision to be so deposited, shall be deducted from the gross profits. The Bank claimed to deduct under this item a sum of Rs. 13.48 lacs on the ground that it represented the amount deposited by the Bank with the Reserve Bank of India under section 11(2)(b)(ii) of the Banking Regulation Act, 1949 and produced in support of this claim, a certificate of the Reserve Bank of India dated 3rd February, 1969 confirming that the Bank had deposited security adequate to fulfil the requirements section 11(2)(b)(ii) of the Banking Regulation Act, 1949 in respect of the accounting year 1966. This certificate was produced by A. K. Basu on behalf of the Bank without ally objection by the workmen and it was marked exhibit 11. The Industrial Tribunal accepted the claim of the Bank on the strength of this certificate and permitted deduction of the amount of Rs. 13.38 lacs. The workmen impugned this decision of the Industrial Tribunal on the ground that the balance sheet of the Bank for the accounting year 1966 showed that the amount deposited by the Bank with the Reserve Bank of India during that accounting year was only Rs. 70,000/ being the difference between Rs. 99.10 lacs and Rs. 98.40 lacs and it was therefore, only this amount which was liable to be deducted in respect of this claim. But this contention of the workmen is clearly fallacious. The balance sheet of the Bank for the accounting year 1966 would not show the amount deposited by the Bank with the Reserve Bank of India in respect of that accounting year, for, on a plain reading of section 11(2)(b)(ii) of the Banking Regulation Act, 1949, that amount would ordinarily be deposited only after the expiration and not during the currency of that accounting year. No reliance can, therefore, be placed on behalf of the workmen on the balance sheet of the Bank for the accounting year 1966 for the purpose of repelling the claim of the Bank. On the other hand, the evidence given by A. K. Basu on behalf of the Bank clearly showed that the Bank had deposited with the Reserve Bank of India securities adequate to fulfil the requirements of section 11(2)(b)(ii) of the Banking Regulation Act, 1949 and this statement made by the witness was sought to be supported by the certificate issued by the Reserve Bank of India. The workmen did question A. K. Basu on this point, but he clearly stated that the deposit was made in securities. Having regard to this evidence of A. K. Basu supported by the certificate of the Reserve Bank of India, we must hold that the claim of the Bank to deduction of the amount of Rs. 13.48 lacs was well founded and it was rightly allowed by the Industrial Tribunal. That takes us to the last item in dispute which is Item 6(e) of the First Schedule. That item requires that in the case of foreign banking companies, Proportionate Administrative (over Head) Expenses of Head office allocable to Indian business shall be deductible in computing gross profits. The Bank claimed that a sum of Rs. 43.40 lacs was Liable to be deducted under this item, while according to the workmen, the claim for deduction was admissible 145 Only to the extent of Rs. 43.10 lacs. The Industrial Tribunal, however, did not accept the figure of either party but made its own calculations and came to the conclusion that the proportionate administrative expenses allocable to Indian business amounted to Rs. 23.88 lacs and hence that was the amount deductible under this item. This decision of the Industrial Tribunal was challenged on both sides. In order to appreciate the grounds of challenge, it is necessary to understand how the Industrial Tribunal actually calculated the proportionate administrative expenses of Head office allocable to Indian business. Foot Note 3 of the First Schedule provides that proportionate administrative expenses of Head office allocable to Indian business should be calculated "in the proportion of Indian Gross profit (Item No. 7) to total world gross profit (as per consolidated profit and loss account, adjusted as in Item No. 2 above only)". Now, the administrative expenses of Head office were admittedly Rs. 120.52 lacs and if X was the amount of proportionate administrative expenses allocable to Indian business, X/120 would be equal to Indian gross profit under Item No. 7/total world gross profit adjusted as in Item No. 2. The Indian gross profit for the purpose of working out this proportion was calculated by the Industrial Tribunal by taking the figure of Rs. 67.39 lacs which was the net profit shown in the profit and loss account and adding to it Rs. 19.52 lacs representing bonus to employees and Rs. 1.89 lacs representing depreciation and it was, thus, determined at Rs. 88.80 lacs. Here there was a manifest error committed by the Industrial Tribunal. The net profit of Rs. 67.39 lacs shown in the profit and loss account was admittedly arrived at after deducting from the profit of the Bank a sum of Rs. 43.10 lacs in respect of actual head office administrative expenses allocable to India. This amount of Rs. 43.10 lacs was obviously required to be added back, since Item 6(e) provided for deduction of proportionate Head office administrative expenses allocable to Indian business and the same item could not be deducted twice over in arriving at the Indian gross profit. It is true that Item 1 of the First Schedule requires the Industrial Tribunal to take as the starting point of computation "net profit as shown in the profit and loss account after making usual and necessary provisions". But the fact that Item 6(e) provides for deduction of proportionate administrative expenses of Head office allocable to Indian business in arriving at the gross profit for the purpose of bonus under Item 7 shows that the net profit contemplated in Item 1 is net Profit arrived at without deducting proportionate administrative expenses of head office allocable to Indian business. That is not regarded by the Legislature as usual and necessary provision should be deducted for the purpose of ascertaining net profit under Item 1. This position was indeed not disputed by the learned counsel appearing on behalf of the Bank and it is therefore, obvious that the amount of Rs. 43.10 lacs should be added back in arriving at the figure of net profit for the purpose of Item 1. Then again, it is clear from the calculation made by the Industrial Tribunal that in computing the Indian gross Profit at the figure of Rs. 88.80 lacs, the Industrial Tribunal added black only the amounts representing bonus to employees and depreciation as set out in Item 2 of the First Schedule. But Foot Note 3 146 requires that the Indian gross profit should be determined as shown in Item 7 and, therefore, it was necessary to add back not only amounts under item 2 but also amounts under items 3 and 4 and to deduct amounts under item 6 for the purpose of arriving at the Indian gross profit under item 7. This, the Industrial Tribunal clearly failed to do. We would, therefore, direct the Industrial Tribunal. When the case goes back to it, to determine the figure of Indian gross profit as set out in item 7 after adding back the amount of Rs. 43.10 lacs the figure of net profit under Item 1. The workmen also pointed out another error in the calculation made by the Industrial Tribunal and that was in regard to computation of total world gross profit. Foot Note 3 requires that the total gross profit should be as per consolidate profit and loss account after adjustment as in Item 2. That means that the provision made in the consolidated profit and loss account for bonus to employees, depreciation, development rebate reserve and any other reserves should be added back to the net profit as shown in the consolidated profit and loss account for the purpose of arriving at the total world gross profit. What the Industrial Tribunal, however, did in the present case was to add back merely the provision made in the profit and loss account of the Indian business for bonus to employees and depreciation. The Industrial Tribunal did not examine what was the provision made in the consolidated profit and loss account of the Bank for bonus to employees, depreciation, development rebate reserve and other reserves. If any provision were made in the consolidated profit and loss account for bonus to employees, which would mean employees of the Bank throughout the world, depreciation on world assets and development rebate and other reserves, such provision would have to be added back to the net profit as shown in the consolidated profit and loss ' account. This would have to he done by the Industrial Tribunal when the matter goes back to it on remand. The Industrial Tribunal will, thus, after calculating the Indian gross profit above, apply the proportion of Indian gross profit/total world gross profit to the amount of Rs. 120.52 lacs representing the administrative expenses of Head Office and determine the proportionate administrative expenses of head office allocable to Indian business for the purpose of deduction under Item 6(e) of the first Schedule. We must also refer to one other ground of challenge put forward on behalf of the Bank against the decision of the Industrial Tribunal in regard to the amounts deductible under cls. (ii) and (iii) of the proviso to Item 2 of the Third Schedule. This ground of challenge was urged on behalf of the Bank in support of the ultimate award of the Industrial Tribunal determining the bonus payable to the workmen at a little over 9 per cent. Of their salary or wage. It was clearly open to the Bank to urge this ground of challenge since the Bank was entitled to support the award of the Industrial Tribunal 147 even on a ground decided against it. Vide J. K. Synthetics Ltd. vs A J. K. Synthetics Mazdoor Union(1) and Management of I.C.C. vs Workmen(2). The controversy arising out of this ground of challenge turned on the true interpretation of the works 'working funds ' in clauses (ii) and (iii) of the proviso to Item 2 of the Third Schedule. The Industrial Tribunal interpreted the words 'working funds ' to mean "paid up capital, reserves and deposits" and rejected the contention of the Bank that they also included borrowings from other banking companies, bills payable and balance of profit and loss account. This view taken by the Industrial Tribunal was assailed on behalf of the Bank at the hearing of the appeal before us. The Bank contended that borrowings from other banking companies, the amounts of bills issued by the Bank and balance of profit and loss account constituted part of the working funds of the Bank and were, therefore, within the expression "working funds". This contention, plausible though it may seem at first sight, is, in our opinion, not well founded. The words "working funds", when used in relation to a banking company, are not to be construed in their ordinary popular sense by reference to a dictionary. They have a history of their own and they have acquired a definite meaning. These words were first defined in the award made by Mr. K. C. Sen in 1949 in regard to banks and the definition he gave was that 'working funds ' consisted 1 of "paid up" capital, reserves and deposits". So also in the Sastri Award made in 1953 in regard to Industrial desputes between certain banking companies and their workmen, the words 'working funds ' were defined to mean "paid up capital, reserves and the average of the deposits for 52 weeks of each year for which weekly. returns of deposits are submitted to the Reserve Bank of India under the provisions of the Reserve Bank of India Act". So far as banking companies are concerned, the words 'working funds ' have always been understood in this sense and that is the sense in which they must be deemed to have been used by the Legislature when it enacted cls. (ii) and (iii) of the proviso to Item 2 of the Third Schedule. It is a well settled rule of interpretation that when the Legislature uses certain words which have acquired a definite meaning over a period of time, it must be assumed that those words have been used by the Legislature in the same sense. The words 'working funds ' in cls. (ii) and (iii) of the proviso to Item 2 of the Third Schedule must, therefore, be construed to mean Paid up capital, reserves and average of the deposits for 52 weeks of each year for which weekly returns of deposits are submitted to the Reserve Bank of India. It could hardly be disputed that borrowings from other banking companies the amounts of bills issued by the Bank and the balance of profit and loss account are neither reserves nor deposits and they are not liable to be shown in the weekly returns of deposits submitted to the Reserve Bank of India. The Industrial Tribunal was, therefore right in excluding them from the category of 'working funds ' and this round of challenge urged on behalf of the Bank must be rejected. (1) [1972]1 S.C.R. 651 (2) ; 148 We accordingly set aside the award made by the Industrial A Tribunal and remand the case to the Industrial Tribunal with a direction to dispose it according to law in the light of the decisions given and observations made in this judgment. Since the workmen have partly succeeded and partly failed, we think that the fair order of costs would be that each party should bear and pay its own costs of these proceedings. P.B.R Appeal allowed in part.

As a result of negotiations between the respondent Bank and its employees (appellants) an industrial dispute with regard to bonus for the years 1956 to 1964 was settled on an ad hoc basis. By the time of the settlement however the came into force. In respect of the accounting year 1964, though the bonus formula was applicable, no separate computation was made in accordance with that formula since it was settled on an ad hoc basis as a part of an omnibus settlement. The Bonus Act provides a statutory formula for the computation of bonus. Section 2(13) defines an 'employee ' to mean any person employed on a salary or wage not exceeding one thousand and six hundred rupees per mensem. Section 4(a) provides that the gross profits shall be calculated in the manner specified in the First Schedule. Item 2 of the First Schedule deals with "add back" in respect of (a) bonus to employees, (b) depreciation (c) development rebate reserve and (d) any other reserves. Item 3(a) deals with "add back" of bonus paid to employees in respect of previous accounting years. Item 6(e) deals with deduction in the case of foreign banking companies of proportionate administrative (overhead) expenses of head office allocable to Indian business. The concept of "available surplus" is defined in section 2(6) to mean available surplus computed under section 5 and that section lays down that the available surplus in respect of any accounting year shall be the gross profit for that year after deducting therefrom the sums referred to in section 6 which, under clause (a) include "any amount by way of depreciation admissible in accordance with the provisions of section 32(1) of the Income Tax Act" and under clause (d) "such further sums as are specified in respect of the employer in the Third Schedule. " Clause (iv) of the proviso to item 2 of the Third Schedule provides that in the case of a banking company any sum which, in respect of the accounting year, is deposited by it with the Reserve Bank of India under section 11 (2)(b)(ii) of the Banking Regulation Act, 1949 not exceeding the amount required under this provision to be so deposited shall be deducted from the gross profits as prior charge. Section 15 provides for what is liable to be carried forward for being set on and set off out of allocable surplus in the succeeding year or years. An industrial dispute having arisen between the parties in regard to the computation of bonus for the accounting year 1966, it was referred to an Industrial Tribunal for adjudication. The Tribunal 's award was assailed by the workmen on the following grounds: (a) that there was an excess of allocable surplus over the amount of maximum. bonus for the accounting years 1964 and 1965, which, by reason of section 15(1), was liable to be carried forward for being set on in the succeeding accounting year 1966; (b) that while the object of "add back" was that the entire amount set apart as provision for bonus should be added back in determining the available surplus. in spite of making a provision of a much larger amount as bonus, the Bank had added back only a small amount representing the bonus of those workmen who were employees falling within the meaning of section 2(13) and there by failed to take into account bonus in respect of those workmen who are not such employees; the word 'employee ' in items 2(a) of the First Schedule was not limited to employees as defined in section 2(13) but was used, in a wider sense to include all employees, that is, employees drawing more than 1600 rupees or less; 131 (c) that the Tribunal was wrong in allowing the Bank to deduct a much A higher sum by way of depreciation than was shown in the profit and loss account, that the burden of showing what the amount of depreciation admissible under section 32(1) of the Income Tax Act was, was on the Bank which it had failed to discharge and that, at any rate the certificate issued by the Income Tax officer was no evidence and could not be taken into account; (d) that the balance sheet of the Bank for the year 1966 showed a much lesser amount than what the Bank claimed to have deposited with the Reserve Bank under section 11 (2)(b) (ii) of the Banking Regulation Act, 1949 and it was this sum which was liable to be deducted under this head and not the larger sum which it actually deducted. The Industrial Tribunal 's calculation of proportionate administrative (over head) expenses of head office allocable to the Indian business which are deductible in computing the gross profits, both the Bank and the employees assailed it as being incorrect, For the bank, it was contended, (a) that borrowings from other banking companies, the amount of bills issued by the bank and the balance of profit and r loss account constituted part of its "working funds" and that the Industrial Tribunal was wrong in rejecting this interpretation of "working funds" and in limiting it to 'paid up capital, reserves and deposits only". (b) that the Tribunal was wrong in refusing to permit the Bank to add back the sum falling under item 3(a) of the First Schedule. ^ HELD. 1. The workmen are rot entitled to contend that though the claim for bonus for the year 1964 was settled on an ad hoc basis without making computation under the provisions of the Act, such computation must now be made, not for the purpose of determining the bonus payable to them, but for the purpose of determining whether there is any amount liable to be carried forward and set on. Section 15(1) can have no application where no computation is made under the Act and bonus is paid, not in accordance with the statutory formula, but on an ad hoc basis. Then it is not possible to say what was really the bonus payable under the Act. It may be less or more than the bonus in fact paid. That enquiry being rendered irrelevant by the ad hoc settlement, there can be no question of carry forward and set on of any amount, unless specifically agreed upon as part of the settlement. [137 F 138 G] 2. The workmen cannot be permitted to raise a new contention for the first time in this Court that the provision for bonus liable to be added back was not merely the provision for bonus payable to employees as defined in section 2(13) of the Act but also the provision for bonus payable to workmen who are not such employees. What is liable to be added back under item 2(a) of the First Schedule is not the amount of bonus payable to the workmen nor the amount of bonus in fact paid, but the provision for bonus made in the profit and, loss account, 3(a) Though the amount of depreciation calculated in accordance with account. [139 B C] 3. (a) Though the amount of depreciation calculated in accordance with methods known to accountancy practice may be unexceptionable from the point of view of commercial accountancy, it would not necessarily be admissible as a deduction from gross profits under section 6(a). What is allowable as a deduction from the gross profits under that clause is not depreciation calculated according to any recognised method but only such depreciation as is admissible in accordance with the provisions of section 32(1) of the Income Tax Act, 1961. [139 E F] (b) The burden of providing that the depreciation claimed by the Bank was the correct amount admissible under section 32(1) of the Income Tax Act, 1961 was on the Bank and that burden had to be discharged by the Bank by producing proper and satisfactory evidence. [141 C] (c) A certificate issued by the Income Tax officer was not admissible in evidence to prove the depreciation admissible under section 32(1). It is the Industrial Tribunal which must, in the exercise of its quasi judicial duty, calculate the amount of depreciation by adopting the method set out in section 32(1). The Tribunal cannot say that it would accept the figure of depreciation arrived at br another authority charged with the function of determining depreciation under 132 a different statute. There is nothing in the Income Tax Act or in the or in any other provision of law which attaches a presumption of accuracy to the determination of the Income Tax officer in ' this matter or invests it with probative or evidentiary value in the proceedings before the Industrial Tribunal. [142 F 143 C] In the instant case, however, there is no reason to interfere with the decision of the Tribunal in regard to the amount of depreciation deductible under section 6(a). The certificate of the Income Tax officer was admitted in evidence without any objection by the workmen. Had the workmen objected to its admissibility before the Tribunal the Bank could have led other evidence to substantiate its claim for depreciation. Since no such objection was taken before the Tribunal the Bank contented itself by tendering in evidence only the certificate of the Income Tax officer. [143 C D] 4. No reliance can be placed by the workmen on the balance sheet for 1966 for repelling the Bank 's claim to deduct from the gross profit the amount deposited with the Reserve Bank of India under section 11(2) (b)(ii) of the Banking Regulation Act, 1949. The balance sheet for the accounting year 1966 would not show the amount deposited by the Bank with the Reserve Bank in respect of that accounting year, because that amount would ordinarily be deposited only after the expiration, and not during the currency of that accounting year [144C F] 5. (a) The Industrial Tribunal had committed a manifest error. in regards to the calculation of Proportionate Administrative (overhead) Expenses of head office allocable to Indian business. Although item 1 of the First Schedule requires the Industrial Tribunal to take as the starting point of computation "net profit as shown in the profit and loss account after making usual and necessary provisions", The fact that item 6(e) provides for deduction of proportionate administrative expenses of head office allocable to Indian business in arriving at the gross profit for the purpose of bonus under item 7 shows that the net profit contemplated in the item 1 is the net profit arrived at without deducting proportionate administrative expenses of head office allocable to India business. The amount in respect of the actual head office administrative expenses allocable to Indian business should be added back in arriving at the figure of net profit for the purpose of item 1. [145 D 146 B] . (b) In computing the Indian gross profit the Industrial Tribunal added back only the amounts representing bonus to employees and depreciation as set out in item 2 of the First Schedule. Foot note 3 requires that the Indian gross r profit should be determined as shown in item 7 and, therefore, it was necessary to add back not only amount under item 2 but also item 3 and 4 and to deduct amounts under item 6 for the purpose of arriving at the Indian gross profits under item 7. [146 A B] (c) In calculating the total gross profits the Industrial Tribunal committed an error by adding back merely the provision made under the profit and lass account of the Indian business for bonus to employees and depreciation. Foot note 3 requires that the total world gross profit should be as per consolidated profit and loss account after adjusting as in item 2 which means that the provision made in the consolidate profits and loss account for bonus to employees; depreciation, development rebate reserve and any other reserves should be added back to the net profit as shown in the consolidated profit and loss account for the purpose of arriving at the total world gross profit. The Industrial Tribunal did not explained what was the provision made in the consolidated profit and lost; account of the Bank under this head. If any provision were made in the consolidated profit and loss account for bonus to employees, which would mean employees of the Bank throughout the world, depreciation on world assets and development rebate and other reserves such provision would have to be added back to the net profit as shown in the consolidated profit and loss account 6 (a) The Industrial Tribunal was right in its interpretation of the term "working funds" occurring in cl. (ii) and (iii) of the proviso to item 2 of the Third Schedule. The term must be construed to Mean paid up capital, reserves 133 and average deposits for 52 weeks of each year for which weekly returns of deposits are submitted to the Reserve Bank of India. It could hardly be disputed that borrowings from other banking Companies, the amounts of bills issued by the Bank and the balance of profit and loss account are neither reserves nor deposits and they are not liable to be shown in the weekly returns of deposit submitted to the Reserve Bank of India. [147 F H] (b) The term "working funds" was first defined in the award of Mr. K. C. Sen in 1919 in regard to Banks, and it was also used ill the Shastri award made in 1953 in regard to industrial disputes between certain banking companies and their workmen. These words have always been understood in the above sense and that is the sense in which they must be deemed to have been used by the legislature when it enacted clauses (ii) and (iii) of the proviso to item 2 of the Third Schedule. [147 D F] 7. The Industrial Tribunal was wrong in refusing to permit the Bank to add back the sum of Rs. 13.27 lacs on the ground that "a sum out of 1965 account must not be allowed to adulterate the amount of 1966. " This sum paid to the employees in respect of bonus for the accounting year 1965 was, on the plain terms of item 3(a) of the First Schedule, liable to be added back. [143 F H]

Appeal No. 542 of 1967. Appeal from the judgment and decree dated January 24, 1964, of the Kerala High Court in Appeal Suit No. 368 of 1959. Manual T. Paikeday, S.K. Sabharwal and Ganpat Rai, for the appellant. A. R. Somanatha Iyer and M. R. K. Pillai, for the respondent. The Judgment of the Court was delivered by Sikri, C.J. By judgment dated May 26, 1970, this Court (Sikri J., as he then was, and Ray J.) allowed Civil Appeal No. 542 of 1967, set aside the judgment of the High Court and passed a decree in favour of the appellant after modifying the decree passed by the Trial Court. The respondent subsequently filed Review Petition No. 35 of 1970 for review on the ground that they had failed to 978 bring to the notice of the Court the provisions of Travancore Regulation IX of 1094 and the fact that the loans were. granted under the above Regulation. We allowed review on February 1, 1971. This judgment is, however, in continuation of our earlier judgment dated May 26, 1970, The only new point which needs discussion is the effect of the provisions of Travancore Regulation IX of 1094 on our conclusion on the fourth point in that judgment. We had inter alia held that the "fourth point raised by the learned counsel for the plaintiff is fatal for the respondent. " We observed that "the bonds do not give power to the Government to sell the properties other than mentioned in the bond. The properties mentioned in plaint A schedule items 2 to 5, B Schedule items 1 and 3 to 8, and C schedule items were not given as security under the bond and the Government had no authority to sell them. It is conceded on behalf of the respondent that all the properties were sold in one lot. This, in our opinion ' vitiates that the sale of all the properties was void. " The fourth point raised before us was that "the Government had no authority to attach and sell plaint A schedule items 2 to 5 and B schedule items 1 and 3 to 8 and C schedule items, which were not given as security under the bonds; and if the Government had no authority then the sale of all the properties is void. " We had while dealing with the third ground also observed that "no other regulation has been brought to our notice which makes dues under this bond to be recoverable as arrears of public or land revenue. " It now transpires that Regulation IX of 1094 Travancore Land Improvement & Agricultural Loans Regulation provides for recovery of land improvement loans from the borrower as if they were arrears of land revenue due by him. Section 7 of the above Regulation provides "7. (1) Subject to such Rules as may be made under Section 10, all loans granted under this Regulation, all interests (if any) chargeable thereon and costs (if any) incurred in making the same shall, when they become due, be recoverable in any of the following modes : (a) from the borrower as if they were arrears of land revenue due by him; (b) from his surety (if any as if they were arrears of land revenue due by him; (c) except as regards the loans referred to in Section 4, out of the land for the benefit of which 979 the loan has been granted as if they were arrears of land revenue due in respect of that land; (d) out of the property comprised in the collateral security according to the procedure for the realisation of land revenue by sale of immovable property other than the land on which the revenue is due : Provided that no proceeding in respect of any land under Clause (c) shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgagees of, or persons having cha rges on, that interest, and, where the loan is granted under Section 3 with the consent of another person, the interest of that person, and of mortgagees of, or persons having charges on, that interest. (2) When any sum due on account of any such interests or costs is paid by a surety or an owner of property comprised in any collateral security, or recovered from a surety or out of any such property, such sum shall on the application of the surety or the owner of such property, be recovered on his behalf from the borrower or out of the land for the benefit of which the loan has been granted, in manner provided in this Section. " From these provisions it is quite clear that the loans granted under the Regulation, interest and charges, etc. can be recovered in any or all of the four modes described in the section. They can be recovered from the borrower under clause (a); they can be recovered from recovered from a surety under clause (b); the, land for the benefit of which the loan had been granted can be proceeded. against under clause (c) ; and under clause (d) property comprised in the collateral security can be proceeded against. The fact that the properties which had been sold were not mentioned in the bond as collateral security or were not expressly hypothecated does not make any difference because the Travancore Revenue Recovery Act 1 of 1068 provides under section 5 that "when Public Revenue due on land may be in arrear, such arrear, together with interest, if any, and costs of process. may be recovered by the sale of the defaulter 's movable or immovable property or both, in the manner hereinafter provided. " The learned counsel for the appellant contends that neither the Travancore Revenue Recovery Act 1 of 1068 nor the Land improvement and Agricultural Loans Regulation IX of 1094, and 980 the rules made thereunder, confer any power or jurisdiction on the State Government or its officers to sell through the machinery of the Revenue Recovery Act any other property of the borrower than what he has specifically given by his bond as security for the loan. It is further contended that the borrower does not incur any personal liability. unless he has specifically so covenanted in the bond and hence the sale of all the 12 out of the 13 items of land sold one item alone having been a security property under the loan agreement was unauthorised, illegal and void. We are unable to agree with this contention. It is not necessary for the borrower to specifically so convenant in his bond that he would be personally liable because section 7 (1 ) (a) of Regulation IX of 1094 makes the borrower personally liable. This is also made clear by sub section Under sub section (2), if a surety pays the loan he can request that the money be recovered from the borrower on his behalf. The learned counsel relied on the decision in Ulahannan Quseph vs Koohitti Kochukiimari(1) where reference was made to an earlier judgment in the Dewan of Travancore vs Eravi Narayanan(2) in which it was held that "though under section 59 of the Revenue Recovery Regulation, moneys due to Government under written agreements and all sums declared by other Regulations to be realisable as arrears of public revenue may be recovered under this Regulation, that section only makes the machinery or procedure prescribed in the Regulation applicable to such cases, and it would not follow that the incidents of a Revenue sale held under section 39 would also attach to sales held under the authority conferred by the provisions of section 59. " The Court held that the property in the case remained subject to the plaintiff 's prior charge. We are unable to appreciate how this case assists us on the question whether there is any personal liability of the appellant or not. The learned counsel also due our attention to Birendra Nath Raha vs Mir Mahabubar Rahaman (3). In this case it was held that according to the provisions of the Bengal Land Revenue Sales Act, 1868, the properties in question could not be sold because they were neither an estate nor a tenure within section 5 of the Act. No such question arises in this case but it may be mentioned that at page 336 the Court interprated cl. (a) of section 7 of the Land Improvement Loans Act to mean that it imposed a personal liability on the borrower. (1) , 54. (2) 29 Travancore Law Reports 37. (3) A.I.R. 1947 Cal. 981 There is, however, authority against the contentions of the appellant. The Madras High Court observed in Gonjalada Bhojarajappa vs Korlahalli Halappa(1) as follows : "It is clear from section 5, Revenue Recovery Act, that for the recovery of a loan advanced under the Agriculturists Loans Act it is open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy is not confined to that particular property in respect of which or for whose improvement the loan had been taken. " It may be noted that Section 5 of the , provides : "Every loan made in accordance with such rul es, all interest (if any) chargeable thereon, and costs (if any) incurred in making or recovering the same, shall, when they become due, be recoverable from the person to whom the loan was made, or from any person who has become surety for the repayment thereo f, as if they were arrears of land revenue or costs incurred in recovering the same due by the persons to whom the loan was made or by his surety." In interpreting this section, the Madras High Court, in the above mentioned case clearly held that it was open to the Collector to sell any part of the immovable property belonging to the defaulter, and the remedy was not confined to that particular property in respect of which or for whose improvement the loan had been taken. We may also mention that in Lakshman Venkatesh Naik vs Secretary of State(2), while dealing with section 7 of the , which is in terms similar to sec. 7 of Travancore Regulation IX of 1094, it was observed that "it was therefore open to the Collector to adopt all or any of the four different methods which the Section provides for the recovery of the taqavi arrears. " In the result the appeal is dismissed. The parties will bear their own costs throughout. Our order dated February 1, 1971 awarding Rs. 1,500 to the appellant as thrown away costs shall however, stand. K.B.N. Appeal dismissed. (1) A.I.R. 1946 Mad. 226. (2) A.I.R. (1939) Bom.

The loans granted under the Travancore Land Improvement and Agricultural Loans Regulation IX of 1094 together with interest and charges etc. can be recovered from the borrowers under cl. (a) of section 7(1) of the Regulation, as arrears of land revenue due by him or in any of the other modes prescribed by cls. (b), (c) and (d) of the section. The fact that the properties which had been sold were not mentioned in the bond as collateral security or were not expressly hypothecated does not make any difference, because, Travancore Revenue Recovery Act 1 of 1068 (M.E.) provides under section 5 "when public revenue due on loan may be in arrear, such arrear, together with interest if any and cost and process may be recovered by the sale of the defaulter 's movable or immovable property or both in the manner hereinafter provided." Further, it is not necessary for the borrower to specifically so covenant in his bond that he would be personally liable, because, section 7(1) (a) of the Regulation makes the borrower personally liable. This is also made clear by sub section (2) under which if a surety pays the loan he can request that the money be recovered from the borrower on his behalf. [979 F] Ulahannan Quseph vs Koohitti Kochukumari, 23 Tr. L. J. 1051, 54 and Birendra Nath Raha vs Mir Mahabubar Rahaman, A.I.R. 1947 Cal. 332, held inapplicable, Gonjalada Bhojarajappa vs Korlahalli Halappa, A.I.R. 1946 Mad. 226, Lakshman Venkatesh Naik vs Secretary of State A.I.R. 1939 Bom. 183 Hand Birendra Nath Raha vs Mir Mahabubar Rahman, A.I.R. 1947 Cal. 332, referred to.

Civil Appeal No. 8244 of 1983. From the Judgment and Order dated 22.7.1980 of the Kerala High Court in Second Appeal No. 171 of 1976. E.M.S. Anam of the Appellants N. Sudhakaran for the Respondents. The Judgment of the Court was delivered by R.M. SAHAI, J. Whether a junior member of the Tarwad, in Kerala, who redeems the mortgage and is in possession for more than 50 years is a `mortgagee holding the land comprised in a mortgage ' so as to acquire rights of tenant of tenant under Section 4(A) of the Kerala Land Reforms Act, is the legal issue that arises for consideration in this appeal, by successors of other members of the Tarwad who suit for partition was dismissed in second appeal by the High Court. In the year 1045 (1870) a mortgage was executed by the Karnavan (akin to Manager) of the Tarwad, (somewhat like a joint family). Two junior members, of the Tarwad, paid the amount in the year 1061 (1886), got the property released, obtained possession and they or their descendants continued in possession as such. In 1967 a suit for partition was filed by sucessors, of other member of the Tarwad, in whose favour equity of redemption, of the land in suit, was transferred in a family partition in 1962. The suit was resisted amongst others on acquisition of right of tenant under Section 4(1)(a) of the Land Reforms Act. Since there was no dispute on basic facts, namely, redemption of mortgage by two junior members and their continuance in possession for more than fifty years on the date Section 4(1)(a) was added to the Land Reforms Act the rights of parties were decided, more, as a matter of law. According to the trial court and first appellate court the junior members, as a result of getting the property released, were holder of special right under Marumakkathayam Law. They could not be held to be mortgagee, therefore, they did not acquire any right under the Land Reforms Act. But the High Court held otherwise, mainly because in 1962 when the Tarwad was partitioned the property was treated as under mortgage since equity of redemption for the same was given to the plaintiff appellant. It was found that, even, in the plaint it was averred that in consequence of release the mortgagee right vested in the predecessor of defendants who were junior members of the Tarwad. The High Court, therefore, held that the defendants being assignee of mortgage in possession for fifty years, on the date the Land Reforms Act was amended and Section 4(1)(a) was added by Act XXXV of 1969, were entitled to rights as tenants. The High Court, thus, accepted the claim of defendants because the member of the Tarwad treated the mortgage to be continuing on the date the suit was filed. This, apart, it was held that junior member of the Tarwad paying off the debt of Tarwad becomes a mortgagee of the excess share in his own right. But this enunciation, of law, was not accepted, as correct by a division bench of the Kerala High Court itself in Raghavan Nair vs Anandavally Amma, The question, therefore, is if a junior member of the Tarwad who redeems the properly, and gets release, is holder of special right only or he steps into the shoes of mortgagee. Nature of right of a junior member in the Tarwad, a family corporation, in which every member male or female possesses equal right has been explained by this Court in Kochuni vs States of Madras & Kerala, ; at 1099, thus: " The incidents of a tarwad are so well settled that it is not necessary to consider the case law, but it would be enough if the relevant passages from the book "Malabar and Aliyasanthana Law" by Sundara Aiyar are cited. The learned author says at p.7 thus: "The joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the karnavan. The individual members are not entitled to enforce partition, but a partition may be effected by common consent. The rights of the junior members are stated to be (1) if males, to succeed to management in their turn, (2) to be maintained at the family house, (3) to object to an improper alienation or administration of the family property, (4) to see that the property is duly conserved, (5) to bar an adoption, and (6) to get a share at any partition that may take place. These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights. " One of the rights according to this decision which vests in the junior member is to see that the property is duly conserved. Such a right, obviously, includes a right to redeem the property by paying the debts outstanding against the Tarwad. It is an incidence of co ownership or co proprietorship which flows from the nature of Tarwad. But whether the person who thus conserves the property steps into shoes of mortgagee and holds the same rights and interests or he is a surety holding the property on behalf of the Tarwad subject to right of contribution has to be decided on general principles of mortgage as the customary law of Tarwad does not throw any light on it. Mortgage has been defined in Section 58 of the as transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced. The definition brings out clearly the nature of mortgage. It was understood and followed in same sense, even, before the Act came into force. In Gopal vs Parsotam 1883 5 All. 121. 137 F.B. it was observed : "Mortgage as understood in this country cannot be defined better than by the definition adopted by the Legislature in section 58 of the (IV of 1882). That definition has not in any way altered the law, but, on the contrary, has only formulated in clear language the notions of mortgage as understood by all the writers of text books on Indian mortgages. Every word of the definition is borne out by the decisions of lndian Courts of Justice. " It was not different where customary law prevailed. Even in customary Marumakkathayam Law, governing section of people inhabiting the West Coast, the law of mortgage was understood in no different sense. Since the transfer in a mortgage is, only, of interest and not of the entire right and title, as takes place in sale, the mortgagor and the mortgagee can transfer or assign their interest. A mortgagor may assign or transfer the equity of redemption or may even create second mortgage. Similarly a mortgagee may assign his interest or create another mortgage. What happens when a mortgagee assigns his interest in favour of another person? Since an assignor can pass interest that he has, the assignee becomes holder of the same interest that a mortgagee has. In other words, he steps into the shoes of the mortgagee. Can the same be said where a co mortgagor or anyone on behalf of mortgagor authorised under law, pays the amount and brings to an end the interest the mortgagee had? Mortgage is creation of an interest in the property for payment of debt. Once the mortgage debt is discharged by a person beneficially interested in equity of redemption the mortgage comes to an end by operation of law. Consequently the relationship of mortgagor and mortgagee cannot subsist. What then is the status of a person paying off debt to secure the property either with consent of others or on own volition? In law he becomes the owner, entitled to hold and possess the property. But in equity the right is to hold the property till he is reimbursed. In other words, he may hold the property in surety or he may bring the claim for contribution. In Ganeshi Lal vs Joti Pershad, ; , it was held; ". Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it and it is well recognised that where there are several joint debtors, the person making the payment is a principal debtor as regards the part of the liability he is to discharge and a surety in respect of the shares of the rest of the debtors. " Similarly the co mortgagor whose share has been got redeemed is entitled, in equity, to get possession over his share of property on payment of the amount of his share. In Valliamma Champaka Pillay vs Sivathanu Pillay & Ors., [1980] I SCR 354 the principle was explained thus: "From what has been said above it was clear that where the is not in force and a mortgage with possession is made by two persons, one of whom only redeems discharging the whole of the common mortgage debt, he will, in equity, have two distinct rights: Firstly, to be subrogated to the rights of the mortgagee discharged, vis a vis the non redeeming co mortgagor, including the right to get into possession of the latters portion or share of the hypotheca. Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca, which belonged not to him but to the other co mortgagor. It follows that where one co mortgagor gets the right to contribution against the other co mortgagor by paying off the entire mortgage debt, a co related right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the ' non redeeming ' co mortgagor, to pay his share of the liability and get possession of his property from the redeeming co mortgagor, subsists as long as the latter 's right to contribution subsists " But these rights in equity, either in favour of the person 2who discharges the debt or the person whose debt has been discharged, do not result in resumption of relationship of mortgagor and mortgagee. Even under subrogation, a legal concept, meaning substitution, applied, on English Law principle, even earlier, inserted now as Section 92 in since 1929, the rights that are created in favour of a co mortgagor as a result of discharge of debt are 'so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems '. What is the meaning of expression 'right as mortgagee '? Does a person who, in equity, gets subrogated becomes mortgagee? Or his rights are confined to foreclosure or sale? A plain reading of the section does not warrant a construction that the substitutee becomes a mortgagee. The expression is, 'right as the mortgagee ' and not right of mortgagee. The legislative purpose was statutory recognition of the equitable right to hold the property till the co mortgagor was reimbursed. And not to create relationship of mortgagor and mortgagee. The section confers certain rights on co mortgagor and provides for the manner of its exercise as well. The rights are of redemption, foreclosure and sale. And the manner of exercise is as mortgagee. The word, 'as ' according to Black 's Legal Dictionary means, 'in the manner prescribed '. Thus a co mortgagor in possession, of excess share redeemed by him, can enforce his claim against non redeeming mortgagor by exercising rights of foreclosure or sale as is exercised by mortgagee under section 67 of the . But that does not make him mortgagee. Therefore, a co mortgagor or a Junior member of the Tarwad who continued in possession over the excess share, got redeemed by him, could not be deemed to be mortgagee so as to acquire right under Section 4A(1)(a) of the Kerala Land Reforms Act. Legal position explained above does not alter either because during partition equity of redemption in respect of property redeemed by junior members was transferred or because in the plaint it was claimed that mortgage subsisted. None of these actions could effect the operation of law. In the result this appeal succeeds and is allowed. The judgment and order of the High Court is set aside and the order of the trial court decreeing the suit for partition is restored. Parties shall bear their own costs. N.P.V. Appeals allowed. STATE bank of india and anr. vs V. PARTHASARATHY ETC. NOVEMBER 9, 1992 [KULDIP SINGH AND P.B. SAWANT, JJ.] Civil Services: State Bank of India Promotion to the post of Head Clerk Circular No. 42 Clause Three options Outside the city within city and within the same office Debarment on refusal of third and final offer Local Head Office and five other offfices to be considered as one Unit Final offer made in one such office Whether valid and debars the optees permanently on refusal to accept. The appellant Bank issued Circular No. 42 containing an understanding reached with the Staff union laying down the policy for promotion of clerks to the post of Head Clerks. As per clause 1(d) of the Circular the employees who decline to accept Head Clerk s post at a branch office outside the city in which they work, will have a further option when a vacancy arises at any one of the Bank 's offices within that city. However, this was subject to the condition that at the material time there was no other senior employee who had similarly declined the post outside his branch office, in which case the senior most would have the first choice. It was further provided that if an employee declines to accept the post of Head Clerk at an office within the same city, his case would be considered only when a vacancy arises at his office. This was also subject to the condition that there was no senior employee similarly situated at the material time. If the third and final offer is declined, there would be a permanent debarment of promotion. Since there were six offices at the Madras Local Head Office, a common seniority was maintained and all the six offices were considered as one office, viz. local Head Office of which the other five offices were only parts. The Respondents declined their first, second and final offers, though indisputably the final offer was made to them for being posted in an office forming part of the local Head Office. Both the Respondents moved the High Court by way of Writ Petitions and the High Court took the view that the final offer made was not in the same office and so they were entitled to be posted as Head Clerks in the same office. Being aggrieved by the said two decisions of the High Court, the appellant Bank preferred the present appeals. On the question of interpretation of clause 1(d) of the circular in question: Allowing the appeals, this Court, HELD :1. The High Court 's interpretation of cl. 1(d) of the Circular that the third offer made was not in the office where the Respondents were working and therefore their refusal to accept the post did not exhaust the third option and they were entitled to be posted as Head Clerks in the Office where they were working is incorrect in view of the fact that the local Head Office was split into six different offices which together constituted one unit. By refusing to accept the third and final offer, the Respondents had clearly exhausted all the three options and had become permanently debarred from seeking promotion to the post of Head Clerk. [366 E G] 2. This Court does not intend to interfere with the appointment of the respondents to the post of Head Clerk in the Regional Office in the facts and circumstances of these matters which show that in one case a fortuitous appointment had arisen due to death of an employee within almost a month of the Respondent 's refusal to accept the offer, and in the other case, the Respondent has already been accommodated in the post of Head Clerk in the Regional Office itself. However, this would not be treated as a precedent and this would not affect the interpretation of clause 1(d) of the Circular, placed by this Court. [366 H; 367 A] CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4799 4800 of 1992. From the Judgments dated 4.3.1992 and 8.4.1992 in Madras High Court in W.P. No. 246/92 and W.A. No. 349 of 1992. G. Ramaswamy Attorney General, K. Sankaran, A. Rangananthan and A.V. Rangam for the Appellants. M.K. Ramamurthi, M.A. Krishnmoorthy, M.A. Chinnaswamy, H. Subramaniam and Ms. C. Ramamurthi for the Respondents. Rajendra Sachhar, Ambrish Kumar and M.D. Pandey for the Inter vener. The Order of the Court was delivered: Intervention application is allowed. Leave granted. Civil Appeal No. 4799 of 1992. The controversy in this case is in a narrow compass. The appellant Bank issued Staff Circular No. 42 containing an understanding reached with the Bank staff union laying down the policy for promotion of clerks to the post of Head Clerks. Clause 1(d) of the said circular states as follows: Employees who decline to accept Head Clerk 's post at a Branch Office outside their place of service, i.e., outside their city, will again be offered the appointment only when a vacancy arises at any one of the offices within that city, provided that at the material time there is no other senior employees at that office who had earlier declined a posting outside his Branch, as a Head Clerk in which case the senior most employee will first be offered the appointment. Also, if an employee declines to accept the post of a Head Clerk at an office within the same city, his case for appointment as Head Clerk will be considered only when a vacancy arises at his office, in the order of his seniority. His case cannot be considered for a vacancy at any of the other offices in the city. It will be apparent from the above provision of the said clause that those employees who decline to accept the Head Clerk 's post at a branch office which is outside the city in which they work will have a further option. Such employees would be offered the post of Head Clerk again but only when a vacancy arises at any one of the Bank 's offices within that city. This is of course subject to the condition that at the material time, there is no other senior employee who had similarly declined the post outside his branch office, in which case, the senior most would have the first choice. The further provision of this rule and with which we are concerned in the present case is as follows. If an employee declines to accept the post of Head Clerk at an office within the same city his case for appointment as Head Clerk would be considered only when a vacancy arises at his office. This is also subject to the condition that there is no senior employee similarly situated at the material time. If the third and the final offer for the post of Head Clerk is declined, there is a permanent debarment of the promotion. One more thing necessary to be stated before we come to the facts of the present case is that the appellant Bank has a local Head Office at Madras. In 1972, it was split into two the local Head Office and Madras Main Branch. In 1976 77, there was a further splitting up of the local Head Office and the Main Branch and ultimately in 1979, the Madras Local Head Office was divided into following six offices as part of the same Head Office: "(i) Local Head Office (ii) Madras Main Branch (iii) Overseas Branch (iv) Regional Office, which is called Zonal Office (v) The Commercial Branch (vi) Siruthozhil Branch" 4. There is no dispute that as far as the Clerks and the Head Clerks in all the six parts of the same local Head Office are concerned, a common seniority list is maintained. The effect of the aforesaid arrangements for the purposes of the clause 1(d) is that "the employees" in the said clause means the employees in all the said six parts of the local Head Office. In other words, if a vacancy for a Head Clerk occurred at any of the said six offices, it was considered to be a vacancy in one office, viz. ,the local Head Office of which the other five offices were only parts. It appears that respondent Parthasarathy was working as a clerk in the Madras Regional Office (now called Zonal Office) which is, as will be clear from above, a part of the Local Head Office itself. On 21st August, 1973, he was offered the post of Head Clerk at Deva Kottain which is outside Madras city. This offer was declined by him. On 1st July, 1980, he was offered the post of Head Clerk in the Sowkarpet branch office in the same city which was less than 2 kms, from his Regional office where he was working. He declined the said offer too. He was then entitled to be considered for posting as Head Clerk only in his office which meant in any of the six parts of the local Head Office, that being the third and the final offer that could be made to him. The third offer was made to him for the post of Head Clerk at the Overseas branch, and that being part of the same local Head Office, he was bound to accept it. However, he declined the third and the final offer also, and issued a lawyer 's notice to the Bank contending that the Overseas branch was different from the Regional office where he was working and, therefore, the offer given to him was contrary to the said clause 1(d). The allegations made in the notice were of course denied by the bank. On 6th September, 1983, one A. Nizamuddin who was working as Head Clerk in the Regional office passed away and that post became vacant. On 24th September, 1983, the respondent filed a writ petition before the High Court for quashing the third and the final offer made to him on 4th August 1983, and for a direction for posting him in the Regional office where the vacancy had occurred. The High Court took the view that the third offer made was not for the post of the Head Clerk in the same office where the respondent was working and, therefore, his refusal to accept the post did not exhaust the third option and he was entitled to the vacancy created by Nizamuddin 's death in the Regional office where the respondent was working. We are afraid this interpretation is incorrect in view of the position explained above with regard to the local Head Office which was split into six different offices which together constituted one unit. The respondent, when he was offered the third option in the Overseas branch, was offered the post in the same office where he was working, the Regional office being as much a part of the Head Office as the Overseas branch. By refusing to accept the said third and the final offer, the respondent had clearly exhausted all his three options and had become permanently debarred from seeking promotion to the post of Head Clerk. We, however, do not interfere with the appointment of the respondent to the post of Head Clerk in the Regional office in the facts and circumstances of the case which show that a fortuitous appointment had arisen within almost a month of his refusal to accept the offer. This, however, will not be treated as a precedent nor does it affect the interpretation that we have placed on the clause 1(d) as above. Civil Appeal No. 4800 of 1992 In this case also, the respondent Sampath was working as a Clerk in Madras Regional Office. The first offer of the post of Head Clerk was made to him on 6th August, 1973 at Mudukulathur branch which is in Madras city. This was declined by him. On 12th May, 1980, he was given the second offer for the post of Head Clerk at Air Force Station branch, Tambaram which was in Madras city. The third and final offer was made to him on 4th August, 1983 to the post of Head Clerk in the Stationery department of the Madras Local Head Office. There is no dispute that Stationery department of the Local Head Offfice and the Regional Office form part of one unit, viz., Madras Local Head Office. The respondent declined this offer as well, and on 23rd January, 1984 filed a writ petition in the High Court for quashing the third offer and for posting him in his office, viz., Regional Office as the Head Clerk. The learned Single Judge of the High Court quashed the order making the third offer and allowed the petition following the earlier decision in Parthasarathy 's case with which we have dealt with earlier. The Division Bench of the High Court also confirmed the order. For the reasons we have given in C.A.No. 4799 of 1992, we are unable to accept the interpretation given by the High Court on clause 1(d) of Staff Circular No. 42. However, if in the present case, the respondent has already been accommodated in the post of Head Clerk in the Regional Office itself, we do not intend to interfere with the same. It is nonetheless made clear that it is the interpretation that we have placed on the said clause that will prevail and not the interpretation placed by the High Court. With these observations, the appeals are allowed only to the extent that the interpretation placed by the appellant Bank on clause l(d) of the Staff Circular No. 42 is correct and the decision of the High Court on the point is incorrect. There will be no order as to costs.

The Respondent University invited applications for appointment to 10 posts of Assistant Professors. Out of 112 applications received, the Screening Committee recommended 106 candidates for being Interviewed and found the remaining 6 applicants ineligible. However, only 65 candidates appeared for the interview. 6 candidates were selected from the general category , and 2 from the Reserved Category. 5 candidates Including the petitioner were placed on the waiting list. As per the advertisement, a candidate should have a doctorate degree or research work of equally high standard, and good academic record with atleast a Second Class Master 's Degree. The lack of doctorate degree could be made up by either research work of equally high standard or M.Phil with two years research work. Except in the case of Respondent No.10, who had a doctorate degree as on the last date for submission of applications, the qualifications of other selected candidates had to be relaxed by the Scrutiny Committee. The petitioner challenged the appointment of the six selected candidates from the general category, before the High Court, but was not successful. Being aggrieved by the High Court 's judgment, the petitioner preferred the present Special Leave Petition. On behalf of the Respondent University it was contended that since at the time of selection Respondent Nos. 5 and 4 had obtained their doctorate degrees they could be said to have fulfilled the qualifications; 187 that since respondent Nos. 6 and 7 were registered for Ph. D. in 1982, by the time of the selection they had put in research work connected with their thesis and on the date of selection, they had about 3 years ' experience in research work; that respondent No.8 had good academic record both in MA and B.A. and the Scrutiny Committee could under the Ordinance relax the qualifications as admittedly sufficient number of candidates with doctorate degrees were not available; and that even the petitioner did not have the doctorate degree; that the candidates had already been appointed in February 1985 and they have been working since then and some of them were also due for promotion to the higher posts in the near future; and that their record of teaching so far has been excellent and unblemished and so their selection need not be interfered with at this late stage. Dismissing the Special Leave Petition and laying down the guidelines for future selection process, this Court, HELD : 1. In the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. Therefore, when the Selection Committee took into consideration the requisite qualifications as on the date of selection rather than on the last date for preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. However, the selected candidates have been working in the respective posts since February 1985. Almost eight years have elapsed. 'Mere is also no record to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some candidates in exercise of the discretionary powers vested in it under the University Ordinance. If the considerations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected. For these reasons, this Court is not inclined to set aside the selections made by the Screening Committee. [195H, 196A E] A.P. Public Service Commission, Hyderabad & Anr. vs B. Sarat Chandra & Ors., and The District Collector Society) Vizianagaram & Anr. vs M. Tripura Sundari Devi, (1990) 4 SLR 237, relied on. 188 2. It is necessary to emphasise and bring to the notice of the Respondent University that the illegal practices in the selection of candidates which have come to light and which seem to be followed usually at its end must stop forthwith. For this purpose the following guidelines are laid down for the future selection process: (i) The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes. [196F] (ii) The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose. The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better than those who apply, can have a legitimate grievance since they are left our of consideration. [196G,H, 197A B] (iii) When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.

ION: Criminal Appeal No. 120 of 1961. Appeal by special leave from the judgment and order dated March 17, 1961 of the Punjab High Court in Criminal Writ No. 2 of 1961. WITH Petition No. 147 of 1961. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. The appellant/petitioner in person. H. section Doabia, Additional Advocate General, Punjab, Gopal Singh and P. D. Menon. for respondent (in the appeal and the petition.) 1961. November 2. 'The Judgment of Sinha, C. J., Subba Rao, Shah and Mudholkar, JJ, was delivered by Subba Rao, J. Dayal, J. delivered a separate Judgment. SUBBA RAO, J. Both these matters are connected and raise the same questions, and they may be disposed of together. Ranbir Singh Sehgal, the petitioner in the writ petition, is now a prisoner in the Central Jail Ambala, in the State of Punjab. He was prosecuted for committing offence in different places. On June 13, 1961, he was convicted by the Additional District Magistrate, Ambala, under section 5 of the Indian Explosive Substances Act and sentenced to 298 5 years rigorous imprisonment and to pay a fine of Rs. 2,000/ . The petitioner has preferred an appeal against the said conviction and sentence, and the said appeal is now pending the High Court of Punjab. On January 30, 1961, the Additional Sessions Judge (II), Ambala, convicted the petitioner under sections 120 B and 399 of the Indian Penal Code and sentenced him to 7 years rigorous imprisonment and a fine of Rs. 2,000/ under the former section, d to 5 years rigorous imprisonment and a fine of Rs. 2,000/ under the latter section. The petitioner preferred an appeal against this conviction and sentence to the High Court of Punjab and the same is now pending there. The other eases are not disposed of and they are still pending in various courts. The petitioner was arrested by the Ambala, police on September 11, 1958, and was detained in police custody for a period of about 8 months, and on May 7, 1959, he was transferred to judicial custody at Ambala. On June 13,1960, he was convicted under the Indian Arms Act, and from that date he is in the Central Jail, Ambala,, as a convicted prisoner. On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a 'B ' class prisoner. On February 9, 1961, he filed a petition under article "26 of the Constitution in the High Court of Punjab at Chandigarh, questioning inter alia his confinement in that prison on the ground that para. 575 of the Punjab Jail Manual where under he was confined to a separate cell in the prison, offended article 14 of the Constitution, and that in fact discriminatory treatment was meted out to him not for the maintenance of discipline but for extraneous reasons. That petition was dismissed by the said High Court on March 17, 1961, and Criminal Appeal No. 120 of 1961 was filed against the said order by special leave granted by this Court. That apart he also filed the present writ petition (Writ Petition No. 147 of 1961) in this Court under article 32 of the Constitution covering the same ground. The prisoner 299 argued his own case. He raised before us two points, namely, (1) para. 575 of the Punjab Jail Manual offends article 14 of the Constitution in as much as it confers arbitrary power on the Superintendent of Jail to deal with a prisoner under the colour of the said provision in a brutal way circumventing other stringent provisions of the Prisons Act and other paragraphs of the Punjab Jail Manual conceived in the interest and fair treatment of prisoners, (2) the Superintendent of Jail, for extraneous reasons on the pretext of disciplinary action, gave him solitary confinement in a cell since the date he was transferred to that Jail, and thus acted with mala fide. that apart, he discriminated him in the matter of treatment from other prisoners and even from the co accused, who were convicted along with him, and thus offended article 14 of the Constitution. The first question falls to be decided on the relevant provisions of the Indian Penal Code, the Prisons Act, and the Punjab Jail Manual. There are three types of punishment, namely, (i) solitary confinement,(ii) cellular confinement, and (iii) separate confinement. Solitary Confinement means such confinement with or without labour as entirely secludes the prisoner both from sight of, and communication with, other prisoners. The punishment of solitary confinement can be imposed by a Court only, and, in view of its dangerous potentialities stringent conditions are imposed thereon. No person can be sentenced to undergo solitary confinement for more than three months. There is a limit prescribed on the punishment of solitary confinement that can be imposed on a prisoner: it shall not exceed (a) one month, if the term of imprisonment does not exceed six months, (b) two months, if the term of imprisonment exceeds six months, but does not exceed one year, and (c) three months if the term exceeds one year: (vide section 73 of the Indian Penal Code). Section 74 of the Indian Penal Code says, 300 In executing a sentence of solitary confinement, such confinement hall in no case exceed fourteen days at a time with intervals between the periods of solitary confinement of not less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods. " Section 29 of the Prisons Act reads, "No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty four hour, whether as a punishment or otherwise, shall be visited at least once a day by the Medical officer or Medical Subordinate." Cellular confinement is a punishment which can be imposed on a prisoner by a Superintendent of Jail. A Superintendent of Jail can punish in a suitable case a prisoner by imposing on him cellular confinement for a period not exceeding fourteen days, provided that after each period of cellular confinement an interval of not less than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement. Cellular confinement in defined to mean such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners. Separate confinement is defined to mean such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and allows him not less than one hour 's exercise per diem and to have his meals in association with one or more 301 other prisoners. Separate confinement for a period not exceeding three months can be imposed on prisoner in a suitable case by the Superintendent of Jail. (Vide section 46(8) of the Prisons Act). Section 47 of the Prisons Act prohibits the combination of cellular confinement with separate confinement so as to prolong, the total period of seclusion to which a prisoner shall be liable. Solitary confinement can he given only by a court and the other two by a Superintendent of Jail for jail offences. The provisions conceived in the interest of the physical, moral and mental health of prisoners impose stringent conditions in carrying out those sentences in order to prevent their abuse. But in the interest of maintaining discipline among the inmates of jail, the Prisons Act and the Jail Manual prescribe rules for a separation of prisoners. The separation of prisoners depends upon the nature of the prisoner, the class to which he belongs and the availability of adequate number of cells. Section 27 of the Prisons Act provides that, (1) in a prison containing female as well as male prisoners, the females shall be imprisoned in separate buildings, or separate parts of the same building, in such manner as to prevent their seeing, or conversing or holding any intercourse with the male prisoners (2) in a prison where male prisoners under the age of twenty one are confined, means shall be provide for separating them altogether from the other prisoners and for separating those of them who have arrived the age of puberty from those who have not (3) unconvicted criminal prisoners shall be kept apart from convicted Criminal prisoners; and (4) civil prisoners shall be kept apart from criminal prisoners. Section of the said Act says, "Subject to the requirements of the last foregoing section, convicted criminal prisoners may be confined either in association or 302 individuals in cell or partly in one way and partly in the other". Presumably in exercise of the power conferred on the State Government by section 59 of the Prisons Act, certain rules were framed for the separation of prisoners and they are contained in the Jail Manual. Under para. 571 of the Jail Manual, 'shall convicts shall, so far as the requirements of labour and the cell accommodation of the Jail will allow, be kept separate both by day and by night. " Paragraph 572 deals with the occupation of vacant cells, and para. 573 says that " 'convicts of the habitual class shall be subjected to the system of separation prescribed in the preceding rules, in rotation. " Paragraph 574 provides. If, at any time, there are more cells in any jail than suffice for the separation of all convicts of the habitual class, prisoners of the casual class shall be confined in cells, both by day and night, in rotation. " Then comes the impugned provision, namely, para. 576, which reads: "A convict who would ordinarily came under the operation of any of the preceding rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some jail service, shall be confined in a cell by night. " There rules, along with the provisions of the Prisons Act, form an integrated scheme conceived for the maintenance of discipline of prisoners, and the preferential treatment in the allotment of cells is based upon sex, age, nature of the crime committed and the nature of the prisoners, and also the availability of cells. The question is whether para. 575 of the Jail Manual offends Act. 14 of the Constitution. The said provision is only in a group of rules providing for the separation of prisoners and it only says that if a prisoner to whom any of the prison rules 303 applies cannot be confined to a cell by day shall be confined in a cell by night. It pre supposes that the prisoner concerned belongs to the category to whom a separate cell is allotted and, by reason of his being required for jail service, cannot be confined to the cell by day: in such a case it says that he shall be confined to the cell by night. It is only a rule providing for a contingency when a prisoner who should be so confined in a cell both by day and night cannot be confined by day in such a cell. But the objection may be taken to mean that the other rules, along with this rule enable a Superintendent of Jail to put a prisoner in a cell offends article 14 of the Constitution. It is settled law that article 14 of the Constitution permits classification, and the said classification must bear just and reasonable relation to the object of the legislation. The object of the said provision is to maintain discipline among the inmates of jail. The classification is made on the basis of sex and the nature of the prisoners and also on the availability of cells. The classification has certainly a reasonable relation to the object sought to be achieved by the legislation nor can the power conferred on the Superintendent to separate prisoners be said to be arbitrary. The object of the conferment of the said power is very limited, and the provisions clearly lay down the conditions for separation. The power to separate is entrusted to the highest officer in the jail premises, who may ordinarily be expected to not reasonably, objectively and without bias. In these circumstances, we must hold that para. 575 of the Jail Manual in it setting does not offend the provisions of article 14 of the constitution. The next question is whether in purported exercise of the said power the Superintendent in the present case acted with mala fide and meted out discriminatory treatment to the petitioner and thus offended article 14 of the constitution the 304 affidavit filed in the Writ Petition, the petitioner made certain allegations against the Superintendent in respect of his treatment in jail. The said allegations may be summarized thus: The petitioner was transferred to the judicial custody at the Central Jail Ambala, on May 7, 1959, after protracted police custody of over eight months. On the very day of his arrival in the Jail, the petitioner was looked up in solitary confinement in a cell in the condemned prisoners block and lock up period of 24 hours inside the cell was clamped." Though several representations were made by the relatives of the petitioner to the higher authorities, no redress was given to him. He was sought to be kept in the cell for 13 months till June 13, 1 when he was convicted in one of the cases filed against him. On June 14, 1960, the Superintendent of the Jail again ordered the petitioner to be looked up in complete solitary confinement under para. 575 of the Punjab Jail Manual, and again a confinement of 24 hours inside the cell was "clamped". On December 15, 1960, the Governor of Punjab ordered that the petitioner should be treated as a 'B ' class prisoner, and even thereafter he was not transferred to the general ward of the prison where others ' class prisoners were kept confined, but he was kept in the same condemned prisoners wards Though the look up period of 24 hours inside the cell was considerably reduced the ban imposed on his association with other prisoners had not been relaxed. The petitioner was not allowed even to meet his co accused who were in the general ward of the prison. While the other prisoners in the jail including the petitioner 's co accused were given numerous facilities i.e. of association work and recreation he was completely segregated in a cell without any such facilities. The jail authorities adopted this method of torture for ulterior purposes, 305 The Superintendent of the Jail filed a counter affidavit. His answer to the grave allegations may be stated thus: on the very day of his arrival in the jail the petitioner behaved rudely and impertinently towards the jail staff and in a defiant way tried to undermine jail discipline. he was not kept in solitary cell for ulterior motives. He committed 12 jail offences and he was punished for them. After he was convicted he was put in a separate cell and that he was allowed one hour in the morning and one hour in the evening for exercise and also to have his bath outside the courtyard. After he was classified as a 'B ' class prisoner, he was given amenities to which a 'B ' class prisoner was entitled under the rules, but in the interest of jail discipline he was segregated from other prisoners. The cell in which the petitioner was kept was one of the cells in block of 32 cells out of which only were allocated for condemned prisoners and the rest were utilized for separate confinement for the segregation of hardened and troublesome convicted criminal prisoners. The petitioner was confined in the cell only for the night and he could move about in the open compound of the cell throughout the day. The affidavit and the counter affidavit disclose the following admitted facts: The cell in which the petitioner was and is confined is one of the cell in the block of 32 cells out of which 8 cells are used for condemned prisoners. The cell has a small separate enclosure of its own. From the date the petitioner entered the prison, that is, on May. 7, 1959, till he was convicted, that is, on June 13, 1960, when he was an under trial prisoner, he was separately confined to a cell. though the superintendent vaguely says that the petitioner was not looked up in a solitary cell, he practically admits that the petitioner was given separate confinement in a cell as punishment for jail offences committed by him. Though he 306 denies that the petitioner was kept in a cell for 24 thee hours, he does not say what facilities were provided for him to move about or mix with other prisoners. The statement of offences committed by the J. petitioner and the punishments inflicted on him filed by the Superintendent does not contain any details and is thus vague. Section 12 of the Prisons Act enjoins on a Superintendent to maintain a punishment book, and section 51 thereof requires him to enter the details therein. But the statement before us does not strictly comply with that section and it is represented in court that no other register is maintained in the jail. The statement, vague as it is, shows that even on the first day of imprisonment, the petitioner was kept in a separate cell and the offence alleged to have been committed by him is that he was rude and impertinent. The subsequent entries show that the petitioner attempted to break articles and even struck his head against wall or door. These acts of the petitioner appear to us to be more due to the effect of the inhuman and discriminatory treatment given to him even when he was an under trial prisoner rather than a conscious attempt on his part to commit any jail offences. Be that as it may, we are not concerned at this stage whether the petitioner had committed those offences, for those were committed at a time when he was an under trial prisoner with which we are not now directly concerned. The facts remain that even as an under trial prisoner from the date he entered the premises of the jail, he was segregated from other prisoners and kept in a separate cell. Now coming to the second period, that is, the period commencing from the date he was convicted till he was classified as a 'B ' class prisoner, that is from June 14 1960 to December 15, 1960, the petitioner alleges that he was kept in solitary confinement as before throughout 24 hours of the day. In the counter affidavit of the Superintendent 307 it is not denied that the petitioner was kept in a separate cell, but it is stated therein that he was given one hour in the morning and one hour in the evening for exercise and also he was allowed to have his bath outside the courtyard of the cell. The Superintendent does not state that he allowed the petitioner to communicate with others or to talk to other prisoners. It is not stated whether he was allowed for exercise to go out of the separate enclosure of the cell or whether he was allowed to mix up with other prisoners or to talk to them. During this period, the petitioner did not commit any jail offences and, therefore, his separate confinement in a cell could not be a punishment for an offence, but only for the maintenance of discipline in the jail and for convenience of accommodation. There is nothing on the record to suggest that he was guilty of any indiscipline during this period. If so, his confinement in a separate cell for a period of six months without allowing`him to communicate with others is a punishment of either cellular confinement, separate confinement or solitary confinement. The restrictions imposed on the prisoner on the pretext of separate allotment of a cell ignored even the limitations on the said confinements prescribed by section 73 of the Indian Penal Code or section 46 of the Prisons Act. The confinement of the prisoner in a separate cell in the manner it was done was certainly illegal. Coming to the third period after he was classified as a 'B ' class prisoner, the petitioner says that he was kept in the same condemned prisoners ' book with the exception that the look up period of 24 hours inside the cell was considerably reduced, but the ban imposed on his association with other prisoners was not relaxed. The Superintendent does not say that the petitioner was allowed to communicate or to speak with other prisoners. He also admits that the petitioner was continued to the 308 cell only in the night and that he can move about within the open compound of the cell throughout the days to put it in other words, the Superintendent admit that the petitioner is confined in a cell J. with a small separate enclosure and that the prisoner can only move in that enclosure in the morning. This kind of confinement is either a solitary confinement or cellular confinement, for it secludes the prisoner from communicating with or from the sight of other prisoners. If it is not a solitary confinement, it would certainly be a cellular confinement. Even in a separate confinement as a punishment the prisoner should be allowed to have one hour 's exercise per diem and to have his meals in association with one or more prisoners. The Superintendent therefore, acted illegally in confining the prisoner in the manner he did, and he is not entitled to do so under the rules prescribed for separation of prisoners. It may also be mentioned that during this period, there is no allegation that the petitioner 's conduct was otherwise bad. It is said that the confinement is neither solitary, cellular or separate, for he is allowed to go to courts. The fact that a prisoner is to be sent to a court on summons has no bearing on the question whether the confinement is legal or not. On the facts disclosed in the case, we have no doubt that, for one reason or other, which is not clear from the record, the petitioner was discriminated from other prisoners and, under the colour of the rules for separation, was illegally confined in a manner not authorized by law. Before closing we would like to make some general remarks. The modern development of criminology has revolutionized the system of treatment of convicted prisoners. The old brutal treatment has given place to more humane one. The concept of vengeance by society and of the deterence is fast disappearing and is being replaced by the concept of correction and rehabilitation. 309 Though our jail administration is moving with times, it is not keeping pace with advanced countries. A statute may reflect the modern trend and may contain salutary provisions for fair treatment of prisoners; but in practice much depends upon the Superintendent, who is expected to implement them in the spirit in which they are conceived. A superintendent of a jail may be a good disciplinarian, but it is not enough: he should also be a humanitarian possessing conscience and having an awareness that to his care is entrusted an abnormal class of society deserving more a sympathetic approach and sincere attempt at rehabilitation than that of vindictiveness. In this case, the Superintendent, as we have already stated, not only did not carry out the spirit of the rules but also broke the letter of the law and illegally placed the petitioner practically in solitary confinement from May 7, 1959 up to date. In the result we hold that the confinement of the petitioner in a separate cell in the manner it is being done in this case is illegal and we direct the respondent to confine the petitioner in the prison in strict compliance with the provisions of the Prisons Act and the rule made thereunder. It is for the Government to consider, in the circumstances of this case, whether it is a fit case for transferring the petitioner to some other jail. Writ Petition No. 147 of 1961 is allowed to the said extent, and there will be a similar order in criminal Appeal No. 120 of 1961. RAGHUBAR DAYAL, J. I have had the advantage of perusing the judgment prepared by my learned brother, Subba Rao J., and agree with him that paragraph 575 of the Punjab Jail Manual does not offend the provisions of the Constitution. I however do not agree that there had been any illegal confinement of the appellant. 310 The appellant was admitted to the jail as an undertrial prisoner for offences under section 19 of the Indian Arms Act and under section 5 of Indian Explosive Substances Act and the allegation was that he was concerned in a conspiracy with others to muder certain persons and to create disorder and anarchy in India. He behaved rudely and impertinently on admission into jail and showed a defiant attitude. In there circumstances, according to the affidavit of the Superintendent of the Jail, the appellant was ordered to be kept in cell under paragraph 569 A of the Jail Manual to maintain jail discipline. The entry in the punishment register, in this connection, states in the column meant for noting the offences: 'He is very rude and impertinent. He has defiant attitude and tries to undermine the jail discipline. ' I am of opinion that it was not necessary for the jail authorities to make a more detailed note in the register with respect to the various acts committed or words spoken by the appellant on the occasion. Section 51 of the Prisons Act provides what is to be recorded in this punishment book and requires to be recorded, among other matters, the prison offence of which the prisoner is guilty. It does not require a detailed account of the actions of the prisoner which constituted the prison offences. The description of the offences committed, suffices for the purpose of this register. The entry is not made for the purpose of adjudication of the offences or for the purposes of the appellate authority, if any. It is just a record of the conduct of the accused and the action taken. The Superintendent, in this case, did not inflict any punishment of solitary confinement or separate confinement on the appellant for his conduct. He simply ordered that the appellant be kept in a cell under paragraph 469 A of the Jail Manual. There had been eleven other occasions when the appellant committed prison offences. Those 311 offences and the action taken there are also mentioned in the punishment register and a copy of those entries has been filed in Court. What I have said in connection with the nature of the entry in connection with the incident on the day of admission, applies equally to the other entries mentioned above. The Superintendent has denied the allegations made by the appellant that he was kept in a separate cell, not in the interests of the jail discipline, but for ulterior motives or under orders of a vindictive Government. There is no material on the record to suggest that the Superintendent of the jail was actuated, in passing the order for keeping the appellant in a separate cell, by any consideration other than that of the interests of jail discipline. Therefore, the mere fact that the appellant was kept in a separate cell from the moment of his admission in jail does not indicate malafides on the part of the jail Superintendent. The appellant was kept segregated in a separate cell after his conviction as well, in view of paragraph 575 of the Jail Manual. He was allowed an hour in the morning and an hour in the evening for exercise. He was allowed to have a bath in the court yard outside the cell. The fact that the Superintendent did not state in his affidavit that he allowed the petitioner to communicate with others or to talk to other prisoners or that the appellant was allowed to mix up with other prisoners or to converse with them, does not necessarily mean that he disallowed any such thing or that, if he did so, the Superintendent acted against rules of law. The Superintendent denied that the appellant 's request to meet Hari Das was disallowed. There is no allegation that he had not been afforded the facilities which are to be provided to a prisoner or to a B class prisoner kept in a cell and therefore there was no occasion for the Superintendent to state about matters not complained of. 312 The mere fact that a person is kept in a separate cell will not make his confinement solitary, cellular or separate, though the difference between it and any of them be not appreciable. Section 27 of the prisons Act provides for separation of prisoners. If there happens to be only one prisoner of a particular category, he is necessarily to be kept separate from others. His being kept alone from other prisoners and his not being allowed to mix with other prisoners will not be called solitary or cellular or separate confinement. It is just an incident that he happens to be the only prisoner of a particular category and had therefore to be kept separated from all other prisoners in the jail. Section 28 allows convicted criminal prisoners to be confined either in association or individually in cells or partly in one way and partly in the other. The discretion is with the Superintendent of the Jail. The Act contemplates an individual prisoner to be kept in a cell. It is clear from the provisions of paragraphs 571 to 575 of the Jail Manual that the rules contemplate convicted prisoner to be kept separate. Paragraph 571 of the Jail Manual provides that all convicts, subject to cell accommodation and requirements of labour, be kept separate both by day and by night, and justifies the segregation of the appellant as a convicted criminal in a separate cell. Paragraphs 572, 573 and 574 lay down the order in which convicted prisoners are to be selected for being kept separate in cells when each of them cannot be so kept. All these provisions are consistent with what is enacted in section 28 of the Prisons Act. Paragraph 575 reads: "A convict who would ordinarily come under the operation of any of the preceding 313 rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some jail service, shall be confined in a cell by night. Note 1 Separation under paragraphs 571 to 575 is distinct from 'solitary ' confinement and 'separate ' confinement inflicted as a punishment under section 46 of the Prisons Act, and is restricted merely to the separation of individual prisoners either by day or night for purposes of jail management; such separation is not to have any irksome conditions attached to it. Note 2 Paragraphs 571 to 575 are of general application. If, in the opinion of the Superintendent, the presence of any convict in association with others, is detrimental to good order and discipline or is likely to encourage or lead to the commission of any offence, such convict should be kept separate, in preference to others of his class. " These provisions provide an exception to the provisions of paragraphs 571 to 574 and allow the convicted prisoner to be kept in a cell during night only instead of both by day and by night, in case he cannot be confined in the cell by day for reasons that he be required for jail service. Note 1 makes it clear that keeping prisoners separate in view of the provisions of paragraphs 571 to 575 is not 'solitary ' or 'separate ' confinement which can be inflicted as punishment and is merely separation of the prisoner for purposes of jail management. Further, Note 1 enjoins that no irksome conditions be attached to such separation. We are not shown that any such conditions were attached to the order for keeping the appellant in a cell. Note 2 further empowers the Superintendent of the Jail to keep a convict separate if he be of opinion that his association with others of his class 314 is detrimental to good order and discipline in the jail. The Superintendent states in his affidavit he that he was of such opinion. The entire scheme of the Act and the rules is that ordinarily a prisoner should be kept separated from others and that it is only in view of limitations of providing separate cells for each prisoner that prisoners of a particular category are kept together in a large hall. The order classifying the appellant as a B class prisoner further necessitated his being kept separate from other prisoners. There is no provision in the Act or the rules that a prisoner kept in a cell be specially allowed to associate or mix with other prisoners. The main grievance of the appellant is that he was not allowed to associate with his co accused, even for purpose of consultation with respect to the defence to be put up and the grounds to be taken in the appeal. The whole object of keeping convicted prisoners segregated in jail is defeated if they are allowed to meet and discus matters even when they are under special orders for being kept separate on account of their conduct being considered detrimental to jail discipline. If it was really necessary for the appellant to have consultations with his co accused for the purpose of the case, it was open to him to obtain orders of the Court and facilities for such consultations, if considered necessary, could have been given just as facilities are provided for accused to consult their counsel. I am therefore of opinion that the Jail authorities committed no discriminatory or illegal act against the appellant in keeping him in a separate cell. I would therefore dismiss both the writ petition and the appeal. BY COURT. In accordance with the opinion of the majority, the Writ Petition and the Appeal are allowed to the extent indicated in the majority judgment.

Elections were held for the Cuttack Municipality and 27 persons were declared elected as Councillors. One B, who was defeated at the elections, filed a writ petition before the High Court challenging the elections. The High Court held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa Municipalities Act, 1950, as the age qualification had been published too late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21 days as prescribed; Consequently the High Court set aside the elections. The State took the view that the judgment affected not merely the Cuttack Municipality but other municipalities also. Accordingly, the Governor promulgated an ordinance validating the elections to the Cuttack Municipality and validating the electoral rolls prepared in respect of other municipalities. Thereupon, B filed a writ petition before the High Court contending that the ordinance was unconstitutional. The High Court found that the ordinance contravened article 14 of the Constitution, that it did not successfully cure the invalidity and that it offended article 254(1) of the Constitution as it was inconsistent with many Central Acts falling in the concurrent list and was unconstitutional. The State and the Councillors appealed and challenged the findings of the High Court. B raised two further contentions that the appeal had become infructuous as the ordinance had expired and that the ordinance was invalid as it purported to invalidate the judgment of the High Court. ^ Held, that the ordinance was valid and that it successfully cured the invalidity of the electoral roll and of the elections to the Cuttack Municipality. The Ordinance did not offend article 14 of the Constitution. Its object was not only to save the elections to the 381 Cuttack Municipality but also to other municipalities whose validity might be challenged on similar grounds. It did not single out B for any discriminatory treatment. Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar; , , referred to. State of Vermont vs Albert Shedroi,(1904)68 L. Ed. 179, distinguished. The Ordinance effectively removal the defects in the electoral rolls found by the High Court by its first judgment. It was not necessary for it to further state that the result of elections was not materially affected. Section 5(1) of the Ordinance which saved the actions taken and powers exercised by the Councillors, the Chairman and the Vice Chairman was not repugnant to any existing law and did not contravene article 254(2) of the Constitution. Section 5(1) was confined to action taken under the Orissa Municipalities Act and did not extend to violations of other laws made by the Central Legislature under the concurrent list. The first judgment of the High Court under article 226 of the Constitution could not be equated with article 226 itself. As such the Governor did not transgress any constitutional limitation in nullifying its effect by the validating Ordinance. The invalidity of the electoral rolls and the elections to the Cuttack Municipality did not revive on the expiry of the Ordinance. The general rule with regard to temporary statutes is that, in the absence of a special provision to the contrary, proceedings being taken under it against a person will ipso facto terminate as soon as the statute expires. But, if the right created by the Statute is of an enduring character and has vested in the person, that right cannot be taken away simply because the statute has expired. The rights created by the Ordinance lasted even after the Ordinance lapsed as its object was to remove the invalidity permanently. Krishnan vs State of Madras [1951] S.C.R. 621, Wicks vs Director of Public Prosecutions, [1947] A.C. 362, Steavenson vs Oliver ; and Warren vs Windle, ; , referred to.

ition No. 644 of 1977. (Under Article 32 of the Constitution) AND Writ Petition No. 917 of 1977 (Under Article 32 of the Constitution) AND Writ Petition Nos. 959 and 960 of 1977 F. section Nariman, M. F. D. Damania, G. D. Dave and Rameshwar Nath for the Petitioners in W.P. 644 of ]977. F. D. Damania, K. L. Talsania, 1. N. Shroff, H. section Parekh and M. R.P. Kapur, for the Petitioners in W.P. 917/77. K.K. Singhvi, F.D. Damania, I.R. Joshi, P. H. Parekh and M. Mudgal for the Petitioners in W.P. Nos. 959 960/77. U. R. Lalit (for Union of India), M. C. Bhandare (for the State of Maharashtra), E. C. Agrawala and M. N. Shroff for RR. 1 2 in W.P. Nos. 644, 959, 960 and 917 of 1977. 1015 S.J. Deshmukh, Mrs. section Bhandare, Miss Leela Mehta, A.N. Karkhanis and Miss Malini Podvel for R. 3 in W.P. No. 644 of 1977. J. Ramamurthi and Miss Vaigai for R. 3 in W.P. 959 960/77. M. K. Ramamurthi, A. K. Ganguli and G. section Chatterjee for the Intervener in W.P. Nos. 959 960 (State of West Bengal). C. G. Nadkarni and K. L. Hathi for the intervener in W.P. 917/77 (Mazdoor Congress). F. section Nariman and O.C. Mathur for the Intervener in W.P. No. 644/77 (Tube Investment). M. K. Ramamurthi and K.M.K. Nair for the Intervener in W.P. 644/77 (State of Kerala). The Judgment of the Court was delivered by UNTWALIA, J. By these four Writ Petitions the employers challenge the constitutional validity of Sections 25 o and 25 R of The (hereinafter to be referred to as the Act). The facts of the different cases are of a similar nature. It is not necessary to state them in any detail for the purposes of deciding the constitutional question. We may, however, just refer to a few in order to indicate the nature of the dispute between the parties. WRIT PETITION No 644 OF 1977 The petitioner in this case is Excel Wear, a Registered partnership firm, the partners of which are citizens of India. The petitioner has a factory at Bombay where it manufactures garments for exports. About 400 workmen were employed in the petitioner 's factory. According to its case the relation between the petitioner management and its employees started deteriorating from the year 1974 and had become very much worse from 1976. From August, 1976 the workmen became very militant, aggressive, violent, indulged in unjustifiable or illegal strikes and the labour trouble in the factory became of an unprecedented nature. Various incidents have been mentioned in the Writ Petition in support of the above allegations. But since the facts are seriously challenged and disputed on behalf of the Labour Union, which was subsequently added as a party respondent in the Writ petition, we do not propose to refer to them in any detail and express our views in regard to them one way or the other. The various facts alleged in the petition may be correct may not be correct. We do not think it necessary to adjudicate upon them for the purpose of deciding the constitutional question. Suffice it to say that it is legitimate to 1016 take notice of the fact that various kinds of situation, such as, labour trouble of an unprecedented nature, a factory running in a recurring loss, paucity of adequate number of competent and suitable persons in the family of the partners, shareholders or the proprietors of a particular factory, or even outsiders, for the purpose of management, non availability of raw materials, insurmountable difficulty in the replacement of damaged or worn out machineries and so on and so forth, may arise and are said to have arisen in one form or the other in the cases before us. Although the facts pleaded in all the Writ petitions are instances of one or more of such difficulties, we shall advert to the consideration of the constitutional question on the justifiable assumption that in a given case they may exist. No body could deny the possibility or probability of the existence of such facts in a particular industry. Excel Wear, according to its case, finding it difficult, almost impossible, to carry on the business of the factory any longer served a notice dated May 2, 1977 on the State Government of Maharashtra, respondent No. 2 for previous approval of the intended closure of the undertaking in accordance with Section 25 0(1) of the Act. The State Government refused to accord the approval and communicated their decision in their letter dated the 1st August, 1977. It would be appropriate to quote here the relevant portion of this letter: "And whereas the Government of Maharashtra, after considering the aforesaid notice is satisfied that the reasons for the intended closure are prejudicial to public interest. Now, therefore, in exercise of the powers conferred by sub section (2) of Section 25 O of the the Government of Maharashtra hereby directs the Excel Wear, Bombay 400025 not to close down the said undertaking" The petitioner challenges the validity of the order aforesaid. Mr. F. section Nariman appeared for the petitioner in this case. The Union of India, respondent No. 1, was represented by Mr. U. R. Lalit and Mr. M. C. Bhandare appeared for respondent No. 2. The case of the Labour Union, the third respondent, was presented by Mr. section J. Deshmukh. In the petitions under consideration Mr. Nadkarni appeared for an intervener Labour Union and Mr. M. K. Ramamurthi for two intervener States of West Bengal and Kerala. WRIT PETITION No. 917 OF 1977 In this case the first petitioner is Acme Manufacturing Co. Ltd. and the second petitioner, citizen of India, is one of its shareholders. Mr. 1017 Damania, learned counsel for the petitioners briefly drew our attention to the facts of this cases which were of a nature adverted to above. The Wadala unit of the petitioner company is engaged in the business of manufacturing and selling Diesel oil Engines, Mechanical Lubricators, Engine Valves and Push Rods etc. The petitioners were obliged to decide to close down the undertaking due to huge losses incurred by them on account of low productivity, serious labour unrest and indiscipline resulting in various incidents of assaults or the like. The Company, therefore, applied to the State Government of Maharashtra on May 2, 1977 under section 25 O(1) of the Act for approval of the intended closure. The State Government communicated their refusal in their letter dated the 29th July, 1977 enclosing therewith a copy of their order couched in identical terms as those in the case of Excel Wear. WRIT PETITIONS 959 AND 960 OF 1977 Mr. K.K. Singhvi, appearing for the petitioners in this case apart from supporting the argument of Mr. Nariman drew our attention to the facts of this case which were more or less of a similar nature as in the case of Acme Manufacturing Co. Ltd. Petitioner No. 2 is a citizen of India and is a shareholder of Apar Private Ltd., petitioner No. 1. The Company owns a factory at Vithalwadi, Kalyan (Bombay) which manufactures aluminum rods, AAC and ACSR conductors, P.V.C. cables and welding electrodes. Feeling compelled to take a decision to close down the factory, the Company served a notice on the State Government under section 25 O(1) of the Act on September 16, 1976. The order of the State Government refusing permission to the petitioner company to close down the undertaking is dated the 23rd December, 1976. The reasons for refusal given in this order are slightly different. They are as follows: "And whereas the Government of Maharashtra after considering the aforesaid notice is satisfied that the reasons for the intended closure of the said undertaking are not adequate and sufficient and the intended closure is prejudicial to the public intervener; Broadly speaking the contention on behalf of the employers in all these cases is that a right to close down the business is an integral part of the right to carry on the business guaranteed under Article 19(1) (g) of the Constitution of India. The impugned law imposes a restriction the said fundamental] right which is highly unreasonable, excessive and arbitrary. It is not a restriction but almost amounts to the destruction or negation of that right. The restriction imposed is manifestly beyond the permissible bounds of clause (6) of Article 19 of the 1018 Constitution. The proposition canvassed for our consideration was sometimes too bald and wide. It was submitted that a right to carry on the business includes a right not to carry on the business, just like any other right mentioned in clause (1) of Article 19, such as, the right to freedom of speech includes a right not to speak and the right not to form an association is inherent in the right to form associations. Similarly a right to acquire and hold property embraces within it a right not to acquire or hold property. The submission was that no body can be compelled to speak or to form an association, to acquire or hold property and similarly no body can be compelled to carry on any business. M/s. Lalit and Bhandare did not dispute the proposition that the right to close down the business is an integral part of the right to carry on the business. They, however, strenuously urged That the restrictions imposed by the impugned law are quite reasonable and justified to put a stop to the unfair labour practice and for the welfare of the workmen. It is a progressive legislation for the protection of a weaker section of the society. Mr. Deshmukh, however, did not accept that a right to close down a business is an integral part of the right to carry on any business. He submitted that a right to closure is appurtenant to the ownership of the property, namely, the undertaking. The total prohibition of closure only affects a part of the right to carry on the business and not a total annihilation of this. The restriction imposed was in public interest and there is a presumption of reasonableness in its favour. Mr. Nadkarni endeavored to submit with reference to the high philosophies of Jurisprudence in relation to the social and welfare legislations, as expounded by renowned jurists and judges abroad, that the action of closing down a business is no right at all in any sense of the term. Mr. Ramamurthi while supporting the main arguments put forward on behalf of others led great stress in the point that the law is protected by Article 31 C of the Constitution, a point which was merely touched by them but was seriously taken over by Mr. Ramamurthi. Before we enter into the focus of the discussion of the main points and their important aspects and facts it would be advantageous to refer to the relevant history of the development of this branch of the law. The Act being Central Act 14 of 1947 was passed in the year 1947. In 1953, an ordinance was promulgated followed by Amending Act 43 of 1953 inserting Chapter VA containing Sections 25A to 25J. New definitions of "Lay off" and "Retrenchment" were furnished in the Act in clauses (kkk) and (oo) of Section 2. The heading of Chapter VA is "Lay off and Retrenchment". The relevant provisions of this Chapter were not meant to cover the small industrial 1019 establishment in which less than SO workmen were employed or establishments of a seasonal character. Section 25C made a provision for certain amounts of compensation for workmen in case they are laid off. Section 25F imposes certain conditions on the employers which are conditions precedent to retrenchment of workmen, such as, the giving of one month 's notice or wages in lieu thereof. Provision has also been made for payment of retrenchment compensation. Section 25FF dealt with compensation to workmen in case of transfer of undertakings. In Hariprasad Shivshankar Shukla vs A. D. Divikar this Court had occasion to consider the meaning of the term "retrenchment". It was opined that the word "retrenchment" means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action and does not include termination of services of all workmen on a bona fide closure of an industry. The question posed at page 134 by section K. Das J., who delivered the judgment on behalf of the Constitution Bench of this Court was whether the definition clause of the word 'retrenchment ' covers cases of closure of business when the closure is real and bona fide ? The answer given at page 137 was in the negative. Discharge of workmen on bona fide closure of business was held to be not retrenchment. On the view that Section 25F of the Act had no application to a closed or dead industry, no pronouncement was made in regard to the constitutional validity of the section if it were to take within its ambit a case of closure also. After the decision of this Court in the case of Hariprasad Shivshanker (supra) was handed down the law was amended by an ordinance followed by Amending Act 18 of 1957 with retrospective effect from November 28, 1956. Section 25FF was amended to make a provision for payment of compensation to workmen in case of transfer of undertakings and a provision was made in Section 25FFF for payment of compensation to workmen in case of closing down of an undertaking. It will be of use to read here sub section (1) of Section 25FFF for the purpose of deciding some of the contentious questions in this case. It reads as follows : "Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched. 1020 Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F, shall not exceed his average pay for three months. Explanation An undertaking which is closed down by reason merely of (i) financial difficulties (including financial losses); or (ii) accumulation of undisposed of stocks; or, (iii)the expiry of the period of the lease or licence granted to it; or (iv) in a case where the undertaking is engaged in mining operations, exhaustion of the minerals in the area in which operations are carried on; shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this sub section. " It would be noticed from the provision extracted above that normally it became necessary for an employer in a case of closure for any reason whatsoever to give notice and compensation to the workmen in accordance with the provisions of section 25F as if the workman had been retrenched. But the proviso clearly postulated that an undertaking may have to be closed down on account of unavoidable circumstances beyond the control of the employer. In that event a ceiling was put in the proviso on the amount of normal compensation payable. The explanation added by Amending Act 45 of 1971 merely indicates that the reasons enumerated in clauses (i) to (iv) of the Explanation will not be deemed to be a closure brought about on account of unavoidable reasons beyond the control of the employer within the meaning of the proviso. Factually and really the said reasons may be said to fall within the expression "unavoidable circumstances beyond the control of the employer. " But the said reasons will not be deemed to be such that a workman should be made to get only a limited compensation and not the full normal compensation provided in section 25F. The constitutional validity of section 25FFF(l) came to be considered by this Court in M/s Hatisingh Mfg. Co. Ltd. and another vs Union of India and Ors. The provision was construed in a manner which saved it from the attack on its vires. Since we are on this case. 1021 at this very stage we may refer to some very important views expressed therein which are decisive of some of the points raised in this case and cf great help in deciding some others. Shah J., as he then was, speaking for the Court pointed out at page 535: "By Article 19(1) (g) of the Constitution freedom to carry on any trade or business is guaranteed to every citizen, but this freedom is not absolute." "In the interest of the general public", says the learned Judge, "the law may impose restrictions on the freedom of the citizens to start, carry on or close their undertakings. " This clearly indicates, and the whole ratio of the case is based upon this footing, that the right to carry on any business includes a right to start, carry on or close down any undertaking. It has further been pointed out on the same page that "by section 25FFF(l), termination of employment on closure of the undertaking without payment of compensation and without either serving notice or paying wages in lieu of notice, is, not prohibited. Payment of compensation and payment of wages for the period of notice are not therefore conditions precedent to closure. " This is one of the main reasons given in the judgment to repel the attack on the constitutional validity of the provision. We, however, must hasten to add that it does not necessarily follow therefrom that if such payments are made conditions precedent to closure the provision will necessarily be bad. While judging the question as to whether the restrictions imposed by Sections 25 O and 25 R are reasonable or not within the meaning of clause (6) of Article 19, we will have to keep in mind the principles enunciated in Hatising 's case at page 535 thus : "Whether an impugned provision imposing a fetter on the exercise of the fundamental right guaranteed by article 19(1) (g) amounts to a reasonable restriction imposed in the interest of the general public must be adjudged not in the background of any theoretical standards or predeterminate patterns, but in the light of the nature and incidents of the right the interest of the general public sought to be secured by imposing the restriction and the reasonableness of the quality and extent of the fetter upon the right. " At pages 536 37 are to be found some important observations in the interest of the labour and we respectfully agree with them. They are as follows: "Closure of an industrial undertaking involves termination of employment of many employees, and throws them into the ranks of the unemployed, and it is in the interest of the general public that misery resulting from unemployment 1022 should be redressed. In Indian Hume Pipe Co. Ltd. vs The Workmen [1960] 2 SCR 32 this Court considered the reasons for awarding compensation under section 25F (though not its constitutionality). It was observed that retrenchment compensation was intended to give the workmen some relief and to soften the rigour of hardship which retrenchment brings in its wake when the retrenched workman is suddenly and without his fault thrown on the streets, to face the grim problem of unemployment. It was also observed that the workmen naturally expects and looks forward to security of service spread over a long period, but retrenchment destroys his expectations. The object of retrenchment compensation is therefore to give partial protection to the retrenched employee to enable him to tide over the period of unemployment. Loss of service due to closure stands on the same footing as loss of service due to retrenchment, for in both cases, the employee is thrown out of employment suddenly and for no fault of his and the hardships which he has to face are, whether unemployment is the result of retrenchment or closure of business, the same. In case of retrenchment only a specified number of workmen loses their employment while in closure all the workmen become unemployed. By Amending Act 32 of 1972 section 25FFA was inserted in Chapter VA of the Act providing for the giving by the employer of 60 days ' prior notice to the appropriate Government of his intention to close down any undertaking. Failure to do so entailed a liability to be punished under section 30A inserted in the Act by the same Amending Act. Chapter VB was inserted in the Act by Amending Act 32 of 1976 with effect from the 5th March, 1976. Under section 25K the provisions of this Chapter were made applicable to comparatively bigger industrial establishments in which not less than 300 workmen were employed. Only three kinds of industries were roped in for the purpose of the rigour of the law provided in Chapter VB by defining "industrial establishment" in clause (a) section 25L to mean: "(i) a factory as defined in clause (m) of section 2 of the ; (ii) a mine as defined in clause (j) of sub section (1) of section 2 of the ; or 1023 (iii)a plantation as defined in clause (f) of section 2 of the . " Section 25M dealt with the imposition of further restrictions in the matter of lay off. Section 25N provided for conditions precedent to retrenchment of workmen. In these cases the vires of neither of the two sections was attacked. Rather, a contrast was made between the said provisions with those of section 25 O to attack the latter. The main difference pointed out was that in sub section (3) of Section 25M the authority while granting or refusing permission to the employer to lay off was required to record reasons in writing and in sub section (4) a provision was made that the permission applied for shall be deemed to have been granted on the expiration of the period of two months. The period provided in sub section (4) enjoins the authority to pass the order one way or the other within the said period. Similarly in sub section (2) of section 25N reasons are required to be recorded in writing for grant or refusal of the permission for retrenchment and the provision for deemed permission was made in sub section (3) on the failure of the governmental authority to communicate the permission or the refusal within a period of three months. We must now read section 25 o impugned provision in full: "(1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall serve, for previous approval at least ninety days before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking: Provided that nothing in this section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work. (2) On receipt of a notice under sub section (1) the appropriate Government may, if it is satisfied that the reasons for the intended closure of the undertaking are not adequate and sufficient or such closure is prejudicial to the public interest, by order, direct the employer not to close down such undertaking. (3) Where a notice has been served on the appropriate Government by an employer under sub section (1) of 1024 section 25FFA and the period of notice has not expired at the commencement of the Industrial Disputes (Amendment) Act, 1976, such employer shall not close down the undertaking but shall, within a period of fifteen days from such commencement, apply to the n r appropriate Government for permission to close down the undertaking. (4) Where an application for permission has been made under sub section (3) and the appropriate Government does not communicate the permission or the refusal to grant the permission to the employer within a period of two months from the date on which the application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of two months. (5) Where no application for permission under sub section (1) is made, or where no application for permission under sub section ( 3 ) is made within the period specified therein or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him. (6) Notwithstanding anything contained in sub section (1) and sub section (3), the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order, direct that the provisions of sub section (1) or sub section (3) shall not apply in relation to such undertaking for such period as may be specified in the order. (7) Where an undertaking is approved ar permitted to be closed down under sub section (1) or sub section (4), every workman in the said undertaking who has been in continuous service for not less than one year in that undertaking immediately before the date of application for permission under this section shall be entitled to notice and compensation as specified in section 25N as if the said workman had been retrenched under that section. " 1025 Special provision as to the restarting of an undertaking closed down before the commencement of the Amending Act 32 of 1976 was made in section 25P. Whether the said provision is constitutionally valid or invalid does not fall for determination in these cases. What is, however, of some importance to point out is that only on the existence of the four situations mentioned in clauses (a) to (d) of section 25P the undertaking could be directed to be restarted within such time (not being less than one month from the date of the order) as may be specified in the order. Section 25Q provides for penalty for lay off and retrenchment without previous permission and section 25 R deals with the question of imposition of penalty for closure under certain circumstances. Section 25 R reads as follows : "(1) Any employer who closes down an undertaking with out complying with the provisions of sub section (1) of Section 25 O shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both. (2) Any employer, who contravenes a direction given under sub section (2) of section 25 O or section 25P, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both, and where the contravention is a continuing one, with a further fine which may extend to two thousand rupees for every day during which the contravention continues after the conviction. (3) Any employes who contravenes the provisions of sub section (3) of section 25 O shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both. " Let us now analyse the provisions of section 25 O. Sub section (1) requires 90 days notice to the appropriate Government for previous approval of the intended closure. Our attention was drawn to the Bombay Industrial Rules and the form prescribed therein for the filing of an application for permission to close down an undertaking. A very comprehensive history of the undertaking and many facts and figures in relation thereto, apart from the reasons to be stated for the intended closure of the undertaking, are required to be given in the application form. Under sub section (2), if in the opinion of the 1026 appropriate Government, the reasons for the intended closure are not adequate and sufficient or if the closure is prejudicial to the public interest, permission to close down may be refused. The reasons given may be correct, yet permission can be refused if they are thought to be not adequate and sufficient by the State Government. No reason is to be given in the order granting the permission or refusing it. The appropriate Government is not enjoined to pass the order in terms of sub section (2) within 90 days of the period of notice. Sub section (3) is a special provision in respect of an undertaking where an employer had given a notice under section 25FFA(1) before the commencement of Act 32 of 1976. In that event he is required to apply within a certain period for permission to close down an undertaking. Under sub section (4) in a case covered by sub section (3) it is incumbent upon the Government to communicate the permission or the refusal within a period of two months, otherwise the permission applied for shall be deemed to have been granted. Sub section (5) brings about the real object of the impugned provisions by stating that the closure of the undertaking shall be deemed to be illegal from the date of the closure if the undertaking has been closed down without applying for permission under sub section (1) or sub section (3) or where the permission for closure has been refused. In that event the workman shall be entitled to all the benefits under ally law for the time being in force as if no notice had been given to him. It is to be noticed that sub section (5) does not say as to whether the closure will be illegal or legal in case a notice under section (1) has been given by the employer but in absence of any communication from the Government within a period of 90 days granting or refusing permission, the employer closes down the undertaking on the expiry of the said period. Sub section (6) postulates that there may be a sudden closure of an undertaking due to some exceptional circumstances as accident in the undertaking or death of the employer or the like. In such a situation the appropriate Government is empowered to direct that the provisions of sub section (1) or sub section (3) shall not apply in relation to such undertaking, for such period as may be specified in the order. Under sub section (7) where an undertaking is approved or permitted to be closed down, then the workman becomes entitled to notice and compensation as specified in section 25N as if the said workman had been retrenched under that section. In other words requirement of section 25N is to be complied with on the grant of the permission to close. Section 25 R while providing for awarding of punishment to an employer who closes down an undertaking without complying with the provisions of sub section (1) of section 25 O or who contravenes a direction given under section 25 O(2) is silent on the question of 1027 entailing any penal consequences in case where an employer had applied for permission under sub section (1) of section 25 O but the Government had failed to communicate its order to him within a period of 90 days and the undertaking is closed down on the expiry of the said period. We propose first to briefly dispose of the two extreme contentions put forward on either side as to the nature of the alleged right to close down a business. If one does not start a business at all, then, perhaps, under no circumstances he can be compelled to start one. Such a negative aspect of a right to carry on a business may be equated with the negative aspects of the right embedded in the concept of the right to freedom of speech, to form an association or to acquire or hold property. Perhaps under no circumstances a person can be compelled to speak; to form an association or to acquire or hold a property. But by imposing reasonable restrictions he can be compelled not to speak; not to form an association or not to acquire or hold property. Similarly, as held by this Court in Cooverjee Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer, and Ors. Narendra Kumar & Ors. vs The Union of India and Ors total prohibition of business is possible by putting reasonable restrictions within the meaning of Article 19(6) on the right to carry on the business. But as pointed out at page 387 in the case of Narendra Kumar (supra) "The greater the restriction, the more the need for strict scrutiny by the Court" and then it is said further: "In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm causes to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public. " But then, as pointed out by this Court in Hatisingh 's case (supra) the right to close down a business is an integral part of the right to carry it on. It is not quite correct to say that a right to close down a business can be equated or placed at par as high as the right not to start and carry on a business at all. The extreme proposition urged on behalf of the employers by equating the two right 1028 and then placing then at par is not quite apposite and sound. Equally so, or rather, more emphatically we do reject the extreme contention put forward on behalf of the Labour Unions that right to close down a business is not an integral part of the right to carry on a business, but it is a right appurtenant to the ownership of the property or that it is not a fundamental right at all. It is wrong to say that an employer has no right close down a business once he starts it. If he has such a right as obviously he has, it cannot but be a fundamental right embedded in the right to carry on any business guaranteed under Article 19(1) (g) of the Constitution. In one sense that right does appertain to property. But such a faint overlapping of the right to property engrafted in Article 19(1) (f) or Article 31 must not be allowed to case any shade or eclipse on the simple nature of the right as noticed above. We now proceed to examine whether the restriction imposed under the impugned law are reasonable within the meaning of Article 19(6). this is undoubtedly on the footing as held by us above, that the right to close a business is an integral part of the fundamental right to carry on a business. But as no right is absolute in its scope, so is the nature of this right. It can certainly be restricted, regulated or controlled by law in the interest of the general public. On behalf of the petitioners, the restrictions imposed by the impugned law are said to be unreasonable because (i) Section 25 O does not require giving of reasons in the order. (ii) No time limit is to be fixed while refusing permissions to close down. (iii)Even if the reasons are adequate and sufficient, approval can be denied in the purported public interest of security of labour. Labour is bound to suffer because of unemployment brought about in almost every case of closure. (iv) It has been left to the caprice and whims of the authority to decide one way or the other. No guidelines have been given. (v) Apart from the civil liability which is it be incurred under sub section (5), the closure, however, compulsive it may be, if brought about against the direc 1029 tion given under sub section (2) is visited with penal consequences as provided in section 25 R. (vi) There is no deemed provision as to the according of approval in sub section (2) as in sub section (4). (vii)Refusal to accord approval would merely mean technically that the business continues but a factory owner cannot be compelled to carry on the business and go on with the production and thus one of the objectives sought to be achieved by this provision cannot be achieved. (viii)There is no provision of appeal, revision or review of the order even after sometime. (ix) The employer is compelled to resort to the provisions of Section 25N only after approval of the closure. (x) Restriction being much more excessive than is necessary for the achievement of the object is highly unreasonable. (xi) There may be several other methods to regulate and restrict the right of closure by providing for extra compensation over and above the retrenchment compensation if the closure is found to be mala fide and unreasonable. (xii)To direct the employer not to close down is altogether a negation of the right to close. It is not regulatory. (xiii)If carrying on any business is prohibited in public interest, a person can do another business. But to prohibit the closure of a running business is destruction of the right to close. (xiv)That reasons should be adequate and sufficient from whose points of view is not indicated in the Statute. (xv) The reasonableness of the impugned restrictions must be examined both from procedural and substantive aspects of the law. Sub section (2) of section 25 O does not make it obligatory for any 1030 higher authority of the Government to take a decision. It may be taken even by a lower officer in the hierarchy. On behalf of the respondents and the interveners all the above arguments were combated and it was asserted that the restriction imposed is reasonable in the interest of the general public. The dominant interest was of labour but the other interests are also protected by the restriction, such as, interest of ancillary industry and preventing fall in production of a particular commodity which may effect the economic growth. The application form requires the employer applying for permission to close down to give such comprehensive and detailed information that it will enable the appropriate Government to take appropriate decisions in appropriate cases. It was also urged that the word "Socialist" has been added in the Preamble of the Constitution by the Forty Second amendment and the tests of reasonableness, therefore, must change and be necessarily different from the dogmatic and stereo type tests laid down in the earlier decisions of this Court. Apart from invoking the bar of Article 31C in terms, it was also urged that the spirit behind the said Article for the progress of the law meant for social justice has got to be kept in view while judging the reasonableness of the restriction in the light of its endeavour to advance the directive principles enshrined in Part IV of the Constitution. In order to overcome the various obvious lacunae in the section, we were asked, by a rule of construction, to read down the section and save its constitutionality. It was urged that successive applications can be made on the change of a situation. No amount of compensation can be a substitute for the preventive remedy of the evil of unemployment. We now proceed to deal with the rival contentions. But before we do so, we may make some general observations. Concept of socialism or a socialist state has undergone changes from time to time from country to country and from thinkers to thinkers. But some basic concept still holds the field. In the case of Akadasi Padhan vs State of Orissa the question for consideration was whether a law creating a State monopoly is valid under the latter part of Article 19(6) which was introduced by the (first Amendment) Act, 1951. While considering that question, it was pointed out by Gajendragadkar J., as he then was, at page 704: 1031 "With the rise of the philosophy of Socialism, the doctrine of State ownership has been often discussed by political and economic thinkers. Broadly speaking, this discussion discloses a difference in approach. To the socialist, nationalisation or State ownership is a matter of principle and its justification is the general notion of social welfare. To the rationalist, nationalisation 1 or State ownership is a matter of expediency dominated by considerations of economic efficiency and increased output only production. This latter view supported nationalisation only when it appeared clear that State ownership would be more efficient, more economical and more productive. The former approach was not very much influenced by these considerations, and treated it a matter of principle that all important and nation building industries should come under State control. The first approach is doctrinaire, while the second is pragmatic. The first proceeds on the general ground that all national wealth and means of producing it should come under national control, whilst the second supports nationalisation only on grounds of efficiency and increased output. " The difference pointed out between the doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the courts to lean more and more in favour of nationalisation and State ownership of an industry after the addition of the word `Socialist in the Preamble of the Constitution. But so long as the private ownership of an industry is recognised and governs an overwhelmingly large proportion of our economic structure, is it possible to say that principles of socialism and social justice can be pushed to such an extreme so as to ignore completely or to a very large extent the interests of another section of the public namely the private owners of the undertakings ? Most of the industries are owned by limited companies in which a number of shareholders, both big and small, holds the shares. There are creditors and depositors and various other persons connected with or having dealings with the undertaking. Does socialism go to the extent of not looking to the interests of all such persons? In a State owned undertaking the Government of the Government company is the owner. If they are compelled to close down, they, probably, may protect the labour by several other methods at their command, even, sometimes at the cost of the public exchequer. It may not be always advisable to do so but that is a different question. But 1032 in a private sector obviously the two matters involved in running it are not on the same footing. One part is the management of the business done by the owners or their representatives and the other is running the business for return to the owner not only for the purpose of meeting his livelihood or expenses but to for the purpose of the growth of the national economy by formation of more and more capital. Does it stand to reason that by such rigorous provisions like those contained in the impugned sections all these interests should be completely or substantially ignored ? The questions posed are suggestive of the answers. In contrast to the other provisions, section 25 o(2) does not require the giving of reasons in the order. In two of the impugned orders communicated to the petitioners, Excel Wear and Acme Manufacturing Co. Ltd., it is merely stated that the reasons for the intended closure are prejudicial to public interest suggesting thereby that the reasons given by the employers are correct, adequate and sufficient, yet they are prejudicial to the public interest. In cases & band fide closures it would be generally so. Yet the interest of labour for the time being is bound to suffer because it makes worker unemployed. Such a situation as far as reasonably possible, should be prevented. Public interest and social justice do require the protection of the labour. But is it reasonable to give them protection against all unemployment after affecting the interests of so many persons interested and connected with the management apart from the employers? Is it possible to compel the employer to manage the undertaking even when they do not find it safe and practicable to manage the affairs ? Can they be asked to go on facing tremendous difficulties of management even at the risk of their person and property ? Can they be compelled to go on incurring losses year after year ? As we have indicated earlier, in section 25FFF retrenchment compensation was allowed in cases of closure and if closure was occasioned on account of unavoidable circumstances beyond the control of the employer a ceiling was put on the amount of compensation under the proviso. The Explanation postulates the financial difficulties including financial losses or accumulation of undisposed stocks etc. as the closing of an undertaking on account of unavoidable circumstances beyond the control of the employer but by a deeming provision only the ceiling in the matter of compensation is not made applicable to the closure of an undertaking for such reasons. In 1972 by insertion of section 25FFA in Chapter VA of the Act, an employer was enjoined to give notice to the Government of an intended closure. But gradually the net was cast too wide and the freedom of the employer tightened to such an extent by introduction of the impugned provisions that 1033 it has come to a breaking point from the point of view of the employers. As in the instant cases, so in many others, a situation may arise both from the point of view of law and order and the financial aspect that the employer finds it impossible to carry on the business any longer. He must not be allowed to be whimsical. Or capricious in the matter ignoring the interest of the labour altogether. But that can probably be remedied by awarding different slabs of compensation in different situations. It is not quite correct to say that because compensation is not a substitute for the remedy of prevention of unemployment, the later remedy must be the only one. If it were so, then in no case closure call be or should be allowed. In the third case namely that of Apar Private. Ltd. the Government has given two reasons, both of them being too vague to give any exact idea in support of the refusal of permission to close down. It says that the reasons are not adequate and sufficient (although they may be correct) and that the intended closure is prejudicial to the public interest. The latter reason will be universal in all cases of closure. The former demonstrates to what extent the order can be unreasonable. If the reason given by the petitioner in great detail are correct, as the impugned order suggests they are, it is preposterous to say that they are not adequate and sufficient for a closure. Such an unreasonable order was possible to be passed because of the unreasonableness of the law. Whimsically and capriciously the authority can refuse permission to close down. Cases may be there, and those in hand seem to be of that nature, where if the employer acts according to the direction given in the order he will have no other alternative but to face ruination in the matter of personal safety and on the economic front. if he violates it, apart from the civil liability which will be of a recurring nature, he incurs the penal liability not only under section 25 R of the Act but under many other Statutes. We were asked to read in section 25 o(2) that it will be incumbent for the authority to give reasons in his order and we were also asked to cull out a deeming provision therein. If the Government order is not communicated to the employer within 90 days, strictly speaking, the criminal liability under section 25 R may not be attracted if on the expiry of that period the employer closes down the undertaking. but it seems the civil liability under section 25 o(5) will come into play even after the passing of the order of refusal of permission to close down on the expiry of the period of 90 days. Intrinsically no provision in Chapter VB of the Act suggests that the object of carrying on the production can be achieved by the refusal to grant permission although in the objects and 1034 Reasons of the Amending Act such an object seems to be there, although remotely, and secondly it is highly unreasonable to achieve the object by compelling the employer not to close down in public interest for maintaining the production. The order passed by the authority is not subject to any scrutiny by any higher authority or tribunal either in appeal or revision. The order cannot be reviewed either. We were again asked to read into the provisions that successive applications can be made either for review of the order or because of the changed circumstances. But what will the employer do even if the continuing same circumstances make it impossible for him to carry on the business any longer ? Can he ask for a review ? Again, by interpretation we were asked to say that steps under section 25N can be taken simultaneously when a notice under section 25 o(1) is given. Firstly, the language of sub section (7) does not warrant this construction. The action of giving notice and compensation in accordance with section 25N is to be taken when an undertaking is approved or permitted to be closed down and not before that. Secondly, it is not practicable to give three months notice in writing or wages for the said period in lieu of notice or to pay the retrenchment compensation in advance as required by section 25N before the employer gets an approval from the Government. It is not always easy to strike a balance between the parallel and conflicting interests. Yet it is not fair to unreasonably tilt the balance in favour of one interest by ignoring the other. Mr. Nadkarni relied upon the following passage of Frankfurter J., while expressing his view on "Balance of Interest": "I cannot agree in treating what is essentially a problem of striking balance between the competing interest as an exercise in absolutes. " Learned counsel also referred to a note on `Government and liberty ' from `Paradoxes of Legal Science ' by Banjamin Cardozo which is to the following effect: "As the social conscience is awakened, the conception of injury is widened and insight into its cause is deepened the area of restraint is therefore increased." No body can have a quarrel with these basic principles however, high sounding or unreasonable they may appear to be on their face. But 1035 yet no jurisprudence of any country recognizes that the concept of injury is widened and the area of restraint is broadened to an extent that it may result in the annihilation of the person affected by the restraint. In case of fixation of minimum wages the plea of the employer that he has not got the capacity to pay even minimum wages and, therefore, such a restriction on his right to carry on the business is unreasonable has been repeatedly rejected by this Court to wit U. Unichoy and Ors. vs The State of Kerala. But the principle, rather in contrast, illustrates the unreasonableness of the present impugned law. No body has got a right to carry on the business if he cannot pay even the minimum wages to the labour. He must then retire from business. But to tell him to pay and not to retire even if he cannot pay is pushing the matter to an extreme. In some cases of this Court, to wit Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union it has been opined that where the industry had been closed and the closure was real and bona fide, there cannot be an industrial dispute after closure. At page 881 Venkatarama Ayyar J., has said: "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 . 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 employees. " But the observations at page 882 indicate that if the dispute relates to a period prior to closure it can be referred for adjudication even after closure. The very apt observations are to the following effect: "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 1036 reference under the section must be determined with reference not to the date on which 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 had accrued prior to the dissolution of the business. " It would thus be seen that in the matter of giving appropriate and reasonable relief to the labour even after the closure of the business the facts which were in existence prior to it can form the subject matter of an industrial dispute. Even assuming that strictly speaking all such matters cannot be covered in view of the decisions of this Court we could understand a provision of law for remedying these drawbacks. The law may provide to deter the reckless, unfair, unjust or mala fide closures. But it is not for us to suggest in this judgment what should be a just and reasonable method to do so. What we are concerned with at the present juncture is to see whether the law as enacted suffers from any vice of excessive and unreasonable restriction. In our opinion it does suffer. The reasonableness has got to be tested both from the procedural and substantive aspects of the law. In the case of State of Bihar vs K. K. Misra & Ors. it has been said at page 196: "As observed in Dr. Khare vs State of Delhi, ; and reiterated in V.G. Raw 's case(1952) SCR 597 that in considering reasonableness of laws imposing restrictions on fundamental rights both substantive and procedural aspects of the 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. It is not possible to formulate an effective test which would enable the court to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. " It is no doubt true that Chapter VB deals with certain comparatively bigger undertakings and of a few types only. But with all this 1037 difference it has not made the law reasonable. It may be a reasonable classification for saving the law from violation of Article 14 but certainly it does not make the restriction reasonable within the meaning of Article 19(6). Similarly the interest of ancillary industry cannot be protected by compelling an employer to carry on the industry although he is incapacitated to do so. All the comprehensive and detailed information given in the application forms are of no avail to the employer if the law permits the authority to pass, a cryptic, capricious, whimsical and one sided order. Mr. Deshmukh relying upon the decision of this Court in the case of Akadasi Padhan (supra) urged that there will be presumption of reasonableness in a legislation of this kind. But reliance upon this principle enunciated in the case of State Monopoly of Kendu leaves seems to be misconceived. Gajendragedkar J., pointed out at page 704: "The amendment made by the Legislature in article 19(6) shows that according to the Legislature, a law relating to the creation of State monopoly should be presumed to be in the interests of the general public. article 19(6) (ii) clearly shows that there is no limit placed on the power of the State in respect of the creation of State monopoly. " This proposition cannot be pressed into service in a case of the kind which we are dealing with. Mr. Deshmukh 's argument that a right to close down a business is a right appurtenant to the ownership of the property and not an integral Art of the right to carry on the business is not correct. We have already said so. The properties are the undertaking and the business assets invested therein. The owner cannot be asked to part with them or destroy them by not permitting him to close down the undertaking. In a given case for his mismanagement of the undertaking resulting in bad relationship with the labour or incurring recurring losses the undertaking may be taken over by the State. That will be affecting the property right with which we are not concerned in this case. It will also be consistent with the object of making India a Socialist State. But not to permit the employer to close down is essentially an interference with his fundamental right to carry on the business. On the basis of the decision of this Court in The State of Gujarat and Anr. vs Shri Ambica Mills Ltd., Ahmedabad, etc. it was 1038 urged that even if there is a violation by impugned law of the fundamental right guaranteed under Article 19(1)(g) and not saved by clause (6) thereof, the said right has been conferred only on the citizens of India and not upon the corporate bodies like a company. Counsel submitted that the company cannot challenge the law by a writ petition merely by making a shareholder join it. Nothing of the kind was said by Mathew J., who spoke for the Court in the above case. The question which was posed at page 773 was whether a law which takes away or abridges the fundamental right of citizens under Article 19(1)(f) would be void and, therefore non est as respects non citizens. On a consideration of a number of authorities of this Court the principle which was culled out and applied in the case of Ambica Mills (supra) at page 780 is in these words "For our purpose it is enough to say that if a law is otherwise. good and does not contravene any of their fundamental rights, non citizens cannot take advantage of the voidness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all. " Contrary to the above submission there are numerous authorities of this Court directly on the point. A reference to the case of Bennet Coloman & Co. & ors. vs Union of India & Ors. will be sufficient. Following the decision of this Court in Rustom Cavasjee Cooper vs Union of India it was held that if a shareholder 's right is impaired the State cannot impair the right of the shareholders as well as of the company and the Court can strike down the law for violation of a fundamental right guaranteed only to the citizens of the challenge is by the company as well as the shareholder. Referring to the bank nationalistion case it is said at page 773 by Ray J., as he then was: "A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders ' rights are equally and necessarily affected if the rights of the company are affected. " Excel Wear is a partnership concern. The partners in the name of the firm can challenge the validity of the law. In each of the other 1039 two petitions, as already stated, a shareholder has joined with the company to challenge the law. The contention of Mr. Ramamurthi, therefore, must be rejected. Now we proceed to consider whether the law is saved by Article 31C of the Constitution. This point, as indicated earlier, was just touched in passing by other counsel. But Mr. Ramamurthi endeavoured to advance a full dressed argument on this aspect of the matter. His submission was that Article 31C inserted in the Constitution by the (Twenty fifth Amendment) Act, 1971 as amended by the (Forty second Amendment) Act, 1976 makes the law beyond the pale of challenge on the ground of violation of Article 19. Mr. Ramamurthi 's argument proceeds thus. A declaration of Emergency on the ground of external danger was made by the President in 1971. While the. imposition of external Emergency was in force, internal Emergency was also imposed on June 25, 1975. The Emergency both external and; internal, was lifted on March 21, 1977. Article 31C, as originally inserted read as follows: "Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31. . "[We have omitted from this quotation that part of Article 31C which was declared void by majority decision in the case of His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala (1973) Suppl. S.C.R. 1.]" The Forty second Amendment made the application of the Article more comprehensive by substituting the words "all or any of the principles laid down in place of the words "the principles specified in clause (b) or clause (c) of Article 39." A feeble attempt in the first instance was made to show that the impugned law was covered by clause (b) or clause (c) of Article 39. But this attempt could not be pursued with any force or success. What was, however, strenuously contended was that surely the law is for giving effect to the policy of the State towards securing the principles laid down in Articles 39(1), 41 and 43 of Part IV and thus within the ambit of the amended Article 31C. No attack on the validity of the law, therefore, could be made. In the first instance, we may point out that we are not impressed with the argument and do not accept it as correct that the impugned law is for giving effect to the policy of the State towards securing any of the principles in Articles 1040 39(a) or 41. Clause (a) of Article 39 concerns itself with the policy towards securing "that the citizens, men and women equally, have the right to an adequate means of livelihood. " The impugned law obviously does not fit in with this directive principle. Article 41 deals with right to work, to education and to public assistance in certain cases. The impugned law is not concerned with this policy. The directive principle which might be brought nearest to the impugned law is to be found in the following words of Article 43 "The State shall endeavour to secure, by suitable legislation. to all workers . work . " without deciding the question whether the impugned law can be said to be a law giving effect to the directive principle enshrined in Article 43 or not, we shall assume in favour of the respondents and the interveners that it is so. Yet we shall presently show that the amended Article 31C cannot put this law beyond the pale of challenge. Chapter VB was introduced by Amending Act 32 of 1976 with effect from 5th of March, 1976. The amendment aforesaid made in Article 31C was with effect from 3rd January, 1977. Section 4 of the (Forty second Amendment) Act, 1976 which brought about the amendment merely uses the expression "the words and figures. . shall be substituted. " It did not say, and probably it could not have said so, that "they will always be deemed to have been substituted. " It is, therefore, clear that the amendment was prospective in operation and was not made retrospective. To overcome this difficulty Mr. Ramamurthi advanced an ingenious argument. He submitted that Chapter VB was inserted in the Act when the Emergency was in operation. Under Article 358, the State during the period of Emergency was competent to enact the impugned law even though it violated Article 19. By the time the Emergency was lifted amended Article 31C had come into operation. Thus by the continuous process the latter became immune from challenge on the ground of violation of Article 19. Counsel relied upon the following decisions of this Court, apart from some others which are not necessary to be referred to, viz. (1) Keshavan Madhava Menon vs The state of Bombay ; (2) Dhirubha Devisingh Gohil vs The State of Bombay; (3) M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh & Anr; (4) Jaganath etc. vs Authorised officer, Land Reforms & Ors. We shall presently point out 1041 the fallacy in the argument and show that none of the decisions supports the contention. Rather, in contrast, some of them demolish it. Article 358 says: "While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect :" Sometimes a distinction has been drawn between the lack of legislative competency of a State to make and enact a law on a particular topic covered by any of the Lists in the Seventh Schedule and its incompetency to make a law abridging or abolishing the fundamental rights or in violation of any other provisions of the Constitution. When there is a lack of legislative competence, the law made is void ab initio, non est and a still born law. But Article 13(2) also says : "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. " Such a law is void to the extent of the contravention and in case of Article 19 the contravention is of the fundamental rights guaranteed to a citizen. It has been said in some different contexts that for non citizens the law is not void but it is merely unenforceable. Article 358 says that a law made in contravention of Article 19 during the operation of Proclamation of Emergency is not to be treated incompetently made by the State. But as soon as the Proclamation ceases to operate the law so made ceases to have effect to the extent of the incompetency. In other words, the Article clearly postulates that the law which was incompetently made and bad for violation of Article 19 will not be taken to be so during the period of Emergency. But as soon as the Emergency is lifted the law becomes bad because it was bad when it was enacted, although it could not be taken to be so during the period of Emergency. The amended Article 31C says that if the law gave effect to the policy 1042 of the State towards securing any of the principles laid in Part IV it shall not be deemed to be void on the ground of violation of Article 19. The law which was enacted in March, 1976 could, by no stretch of imagination, be said to be a law giving effect to the policy of the State towards securing any of the principles laid down in Part IV within the meaning of the amended Article 31C which came into force in January, 1977. The Legislature could not have thought of enacting a law within the meaning of amended Article 31C at a point of time when the Article stood unamended. It is, therefore, difficult to accept the argument of the learned counsel that the law was not bad during the operation of the Emergency because of Article 358 and the same position was continued by Article 31C by its amendment by the (Forty second Amendment) Act. The purport, content and the principles underlying the two Articles is so very different that it is difficult to tag the effects of the two together and make it a continuous effect like a relay race in a game. In our view the law was bad for violation of Article 19(1) (g) when it was enacted, but it was not to be taken to be so during the period of Emergency; its invalidity sprouted out with full vigour on the lifting of the Emergency. The amended Article 31C did not save it. In Keshavan 's case (supra) Das J., as he then was, in the majority judgment of this Court was interpreting clause (1) of Article 13 and while doing so, he said at page 234: "In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. " This case is of no help to the respondents. In Dhirubha 's case (supra) the wordings of Article 31B were being construed. Because of the presence of the words "or ever to have become void" in the said Article it was said at page 696 97 : 1043 "The intention of the Constitution to protect each and every one of the Acts specified in the Ninth Schedule from any challenge on the ground of violation of any of the fundamental rights secured under Part III of the Constitution, irrespective of whether they are pre existing or new rights, is placed beyond any doubt or question by the very emphatic language of article 31 B which declares that none of the provisions of the specified Acts shall be deemed to be void or ever to have become void on the ground of the alleged violation of the rights : . . In contrast to the language of Article 31C which merely uses the phrase "shall be deemed to be void" and not the phrase "or ever to have become void" as used in Article 31B the decision of this Court n Dhirubha 's case, rather, goes against the contention of the learned counsel. In the Sundararamier 's case (supra) Venkatarama Aiyar J., summed up the result of the various authorities at page 1474 thus : "Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto." These observations were made in connection with the removal of the constitutional bar of imposition of sales tax under Article 286. The distinction so drawn in the above case is not of universal application. In the legislative field there is nothing like "void or voidable". The application of the principle has been restricted later to only a limited field, namely, in connection with the question whether the legislation requires fresh enactment or not when the bar of incompetency is removed. This Court has considered the question whether an enactment subsequently saved by Article 31B by being included in the Ninth Schedule requires a fresh legislation to make it valid. The answer given was in the negative. In the case of Ambica Mills (supra), Mathew, J., referred to some of the cases aforesaid and the principles decided therein as also the decision of this Court in 1044 Bhikaji Narain Dhakras & Ors. vs The State of Madhya Pradesh and Anr. wherein Das, Acting C.J., has said at pages 599 600 : "All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void "to the extent of such inconsistency". Such laws were not dead for all purposes. They existed for the purposes of pre Constitution rights and liabilities and they remained operative, even after the Constitution, as against non citizens. It is only as against the citizens that they remained in a dormant or moribund condition. " Referring to Sundaramaier 's case the learned Judge said at page 775 in Ambica Mills case: "The proposition laid down by the learned Judge was that if a law is enacted by a legislature on a topic not within its competence, the law was a nullity but if the law was on a topic within its competence but if it violated some constitutional prohibition, the law was only unenforceable and not a nullity. In other words, a law if it lacks legislative competence was absolutely null and void and a subsequent cession of the legislative topic would not revive the law which was still born and the law would have to be reenacted; but a law within the legislative competence but violative of constitutional limitation was unenforceable but once the limitation was removed, the law became effective. " But later on he hinted at the restricted application of this principle. It may also be pointed out here that in the case of Basheshar Nath vs The Commissioner of Income Tax, Delhi & Rajasthan & Another, Subba Rao J., as he then was, held that there was no distinction between lack of legislative competence and violation of constitutional limitations. Subba Rao J., reiterated the same view in the case of Deep Chand vs The State of Uttar Pradesh and Others. In the case of Mahendra Lal Jaini vs The State of Uttar Pradesh and others: 1045 "the Supreme Court again reviewed the authorities, and held (i) that the doctrine of eclipse applied only to pre Constitution and not to post Constitution laws; (ii) that the words "to the extent of the inconsistency" or "to the extent of the contravention" were designed to save parts of a law which did not contravene, or were not inconsistent with, fundamental right; (iii) that the meaning of the word "void" in article 13(1) and (2) was the same; (iv) however, pre Constitution laws violating fundamental rights were valid when enacted and could therefore be revived under the doctrine of eclipse, whereas post Constitution laws violating fundamental rights were "still born" and non est and could not be revived. In dealing with the argument, based on Supreme Court decisions, that a law violating article 19 would be void qua citizens but valid qua non citizens, Wanchoo J. said: Theoretically the laws falling under the latter category (i.e. contravening article 19) may be valid qua non citizens; but that is a wholly unrealistic consideration and it seems to us that such nationally partial valid existence of the said laws on the strength of hypothetical and pedanic considerations cannot justify the application of the doctrine of eclipse to them." (Vide Seervai 's Constitutional Law of India, 2nd edition, page 180). Of course, in none of the three cases aforesaid the decision of this Court in Sundararamaier 's case was considered. For our purpose we have merely pointed out the divergence of opinion on this aspect of the matter, although for the decision of the point at issue, even Sundararamaier 's case does not make good the submission of Mr. Ramamurthi. Mr. Ramamurthi was not right in pressing this ratio in support of his contention. The content of Article 358 and 31C is entirely different. The former Article, rather, works in the reverse gear. It does not lift the ban in the way of the State to enact a law in violation of Article 19. It puts the ban under suspension during the period of Emergency and the suspension comes to an end on its lifting. Article 31C has no words to indicate that the ban is removed by it. It merely saves the law enacted after coming into force of the said Article. We, therefore, must reject the argument of Mr. Ramamurthi with reference to Article 31C of the Constitution. 1046 In the result all the petitions are allowed and it is declared that Section 25 O of the Act as a whole and Section 25 R in so far as it relates to the awarding of punishment for infraction of the provisions of Section 25 O are constitutionally bad and invalid for violation of Article 19(1) (g) of the Constitution. Consequently, the impugned orders passed under sub section (2) of Section 25 O in all the cases are held to be void and the respondents are restrained from enforcing them. We must, however, make it clear that since the orders fall on the ground of the constitutional invalidity of the law under which they have been made, we have not thought it fit to express any view in regard to their merits otherwise. We make no order as to costs in any of the petitions.

By section 494 Of the Code of Criminal Procedure, 1898: " Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, ' and upon such withdrawal, (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences ; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. " The prosecution of M. and others was launched on the first information of the first respondent, and when the matter was pending before the Magistrate in the, committal stage and before any evidence was actually taken, and 'application for the withdrawal of M. from the prosecution was made by the Public Prosecutor under section 494 Of the Code of Criminal Procedure on the ground that " on the evidence available it would not :be just and expedient to proceed with the prosecution of M." The Magistrate was of the opinion that there was no reason to withhold the consent that was applied for and accordingly he discharged the accused. This order was upheld by the Sessions judge, but on 280 revision, filed by the respondents, the High Court set aside the order and directed the Magistrate to record the evidence and then consider whether it established a Prima facie case against the accused. The State appealed against the order of the High Court by special leave, while the respondents sought to support the order on the grounds (1) that where the application for withdrawal of the prosecution is made on the ground of no evidence or no adequate or reliable evidence the Magistrate must hold a preliminary enquiry into the relevant evidence, and (2) that in a case tried by jury by a Court of Session, an application by the Public Prosecutor under section 594 Of the Code does not lie in the committal stage. Held : (1) Though the function of the Court in giving the consent under section 594 of the Code is a judicial one, it is not necessary that the discretion is to be exercised only with reference to material gathered by the judicial method, and what the Court has to do is to satisfy itself that the executive function of the Public Prosecutor in applying for, withdrawal of the prosecution has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. (2) The word " tried " in section 494 Of the Code is not used in any limited sense and the section is wide enough to cover every kind of inquiry and trial, and applicable to all cases which are capable of terminating either in a discharge or in an acquittal according to the stage at which the application for withdrawal is made. An order of committal which terminates the proceeding so far as the inquiring Court is concerned is a " judgment " within the meaning of section 494 of the Code of Criminal Procedure. Giribala Dasee vs Mader Gazi, Cal 233, and Viswanadham vs Madan Singh,, I.L.R. , approved.

Civil Appeal Nos. 1353 & 1354 of 1973. Appeals from the Judgment and Order dated the 6th December, 1972 of the Mysore High Court in Writ Petitions Nos. 3964 & 3996/1970. S.T: Desai, D.N. Mishra and Mrs. Verma for the Appellants. M. Veerappa for the Respondents. The Judgment of the Court was delivered by AMARENDRA NATH SEN, J. The question of constitutional validity of the Mysore Sales Tax (Amendment) Act, 1969 (Mysore Act of 1969), (hereinafter referred to as the Act) falls for determination in these two appeals preferred by the appellants with certificate granted by the High Court under article 133(1) of the Constitution. The question arises under the following circumstances: The appellants are Excise Contractors who had secured excise privilege of retail sale of Toddy, Arrack or Special Liquor. The State Government has the monopoly of the first sale of Arrack which is country liquor other than Toddy. The manufacture of Arrack by distillation is done in the State under State control and the entire quantity manufactured by distillation in the State is sold to the State Government which in its turn supplies Arrack to bonded depots in Taluks. Under the Mysore Excise Act Arrack is liable 829 to excise duty at the rates prescribed by the Government. The State does not collect excise duty from the distillers. From the distillery arrack is transferred to Bonded Depots and excise duty together with cesses thereon is collected from the contractors who are given the privilege or right to effect retail sales of Arrack. The exclusive privilege of retail vending of Arrack for each excise year which commences on the first day of July and ends on 30th June of the following year, is sold by the State by auction. The successful bidders whose bids are accepted are granted licences for the exclusive privilege of retail vending. The retail selling price of Arrack by the licensees is fixed by the State Government at or before the time of notifying sales of the exclusive privilege in respect of each year. The excise duty of arrack together with cesses there on is collected from the licensees before the date of delivery. Under the terms and conditions governing the licensees, granted to the contractors whose bid is accepted and to whom the license for exclusive privilege of vending arrack is granted, the licensees were required to deposit in the State Treasury under separate heads of account the sales tax payable to the State Government and the excise duty with cesses. There was no dispute as to the amount of sales tax payable by the licensees upto 1.4.1966. However, with effect from 1.4.1966, the State Government started collecting sales tax computed on the sale price of Arrack together with excise duty and cesses payable thereon. So computed sales tax came to about 24 paise a litre which was collected alongwith the price of Arrack sold to the licensees. Challenging the validity of the collection of the sales tax on the aforesaid basis the appellant filed a writ petition in the High Court of Mysore at Bangalore being writ petition No. 644 of 1966. As this writ petition No. 644 of 1966. related to the excise year 1966 67 only, the appellant filed two other writ petitions being writ petitions nos. 1012 and 1013 both of 1966 for subsequent excise years. These three writ petitions of the appellant along with similar writ petitions filed by other contractors were disposed of by a common judgment by a division Bench of the Mysore High Court on 12th July, 1968. The Mysore High Court for reasons recorded in the judgment held: "We allow the rest of the petitioners only to the extent of holding that the State Government is not entitled 830 to collect from the petitioners any amount by way of Sales Tax on the following, viz., Excise Duty, Health Cess and Education Cess imposed on arrack or special liquor. In the said petitions, we hereby issue writs directing the State Government to forbear from collecting from the petitioners any amount representing Sales Tax on the following viz. Excise Duty, Health Cess and Education Cess imposed on arrack or special liquor, and to refund to the petitioners any amount that might have been collected from them, by way of Sales Tax on items of Excise Duty, Health Cess and Education Cess on arrack or special Liquor. " The Division Bench in the course of the Judgment in D. Cawasji & Co. Mysore vs State of Mysore(1), observed at p. 483: "It is difficult to see how Excise Duty paid, not by the seller but by the purchaser, to the State Government, can become a part of the price at which the goods are sold by that seller to that purchaser. If that is the true position, we think the State Government cannot, under S.19 or the Sales Tax Act, collect Sales Tax on Excise Duty which is not a part of its selling price. " Against the judgment of the Mysore Court the State preferred an appeal to the Supreme Court; but the appeal was subsequently withdrawn. It appears that during the pendency of the appeal the privileges of vending liquor in the excise year 1968 69 were sold without any variation in the price of Arrack fixed by the Government during the previous year at 55 paise a litre. During the year 1968 69 the State Government collected Sales Tax computing the same @61/2% of the actual sale price without including therein excise duty and cess. It may be noticed that although the appellants had obtained an order of stay of payment of the disputed sales tax amounts from 27.4.1966 from the High Court, there were various other contractors who had paid the same computed on the sale price of Arrack together with excise duty and the cess. When the decision of the 831 High Court pronouncing the illegality of the levy and collection of sales tax on the price of Arrack, including in the price the excise duty and cess, became final and conclusive in consequence of the withdrawal of the appeal filed by the State in this Court against the said judgment and decision of the High Court, the State Government became liable to refund the excess amount of sales tax collected to the licensees and contractors. It appears that the liability of the State to refund the amount collected as sales tax in excess amounted to lacs of Rupees. Faced with this situation and with the object of avoiding the liability of refund by the State Government of the excess amount so collected, the Governor of the State passed Ordinance No. 3 of 1969 on 17th July, 1969. The Ordinance was replaced by the impugned Act which came into force on 19th July, 1969. It will be convenient at this stage to set out the provisions of the Act, which is a short one consisting of four sections, in its entirety. The Act provides as follows: S.1 (1). This Act may be called the Mysore Sales Tax (Amendment) Act, 1969. It shall be deemed to have come into force on the nineteenth day of July, 1969. In the Second Schedule to the Mysore Sales Tax Act, 1957 (Mysore Act 25 of 1957) in Column 3 of Sl. No. 39, for the words "Six and a half per cent", the words "Forty five per cent", shall be and shall be deemed to have been substituted with effect from the first day of April, 1966. Notwithstanding anything contained in any judgment, decree or order of any court or other authority, the sales tax on country liquor other than toddy levied or collected or purported to have been levied or collected shall, for all purposes, be deemed to be and to have always been validly levied or collected in accordance with law, as if this Act had been in force at all material times when such tax was levied or collected and accordingly (a) all acts, proceedings or things done or taken by any 832 authority or officer or person in connection with the levy or collection of such tax, shall, for all purposes, be deemed to be and to have always been done or taken in accordance with law; (b) no suit or proceeding shall be entertained, maintained or continued in any court for the refund of any tax as paid; and (c) no court shall enforce any decree or order directing the refund of any tax so paid. S.4 The Mysore Sales Tax (Amendment) Ordinance, 1969 (Mysore Ordinance No. 3 of 1969) is hereby repealed. The Statement of objects and Reasons for the passing of the amendment may appropriately be set out at this stage. The Statement of Objects and Reasons runs as follows: "Clause (j) of sub rule (4) of Rule 6 of the Mysore Sales Tax Rules, 1957, provided for the exclusion of excise duty paid by a dealer from the computation of his taxable turnover. By Government Notification No. GSR 882, dated 16th March, 1966, this clause was deleted from the rules with the object of recovering sales tax even on the excise duty portion of the turnover of dealers. In respect of arrack which falls under entry relating to Sl. No. 39 of the Schedule, sales are made by Government to licensed contractors and sales tax was recovered from them at 6 1/2% on the total amount payable by them including the excise duty from 1st April, 1966. The Mysore High Court in W.P. No. 644 of 1966 D. Cawasji & Co. and Others vs The State of Mysore,(1) held that on the sales of arrack, the sales tax cannot be collected on the total amount but has to be collected only on the basic price excluding excise duty on the ground that the duty in such a case does not form part of the sale price but is a separate "levy" made by the Government at the time of releasing the stocks from the Government Bonded warehouses. Consequently, a considerable amount already recovered may become refundable. In order to get over the effects of the High Court 833 decision and retain the money already recovered by the Government, it is proposed to enhance the rate of tax on arrak to 45% with retrospective effect from 1st April, 1966. The enhanced rate of tax on the basic price would be absorbed in the price already recovered, and no additional tax is expected to be realised from this Bill. Since the Legislature was not in session and in view of the urgency, an ordinance was promulgated. The Bill is to replace the ordinance. " The validity of this Amending Act has been challenged on the ground that the Amending Act is unreasonable and arbitrary. The principal contention raised on behalf of the appellant is that the Amending Act does not seek to rectify or remove the defect or lacuna on the basis of which the collection of the excess sales tax had been set aside by the High Court. It is argued by the learned counsel for the appellant that the High Court had held that the sales tax could not be levied on collected on Excise duty Health cess and Education cess imposed on Arrack or special liquor and had directed the refund of the amount collected on excise duty and cess which were included in the selling price of arrack. The learned counsel has submitted that by the amendment the said lacuna or defect of including the excise duty and cess in the price of Arrack on which the sales tax has been charged has not been sought to be removed, as this defect or difficulty could not possibly have been removed, because sales tax could not be levied on excise duty by virtue of the judgment of the High Court. The learned counsel points out that the appeal which was filed by the State Government against the judgment of the High Court had been withdrawn by the State and as such the judgment of the High Court has become final and conclusive and on the basis of the judgment, a large amount has become refundable by the State to the appellants. It is the submission of the learned counsel that the amendment has been brought about only for the purpose of circumventing the judgment of the High Court with the object of avoiding the liability to refund the amount wrongfully and illegally collected as sales tax from the appellant by raising the amount of tax from 6 1/2% to 45%. The learned counsel contends that the increase in the rate of sales tax from 6 1/2% to 45% with retrospective effect is clearly arbitrary and unreasonable. It is the contention of the learned counsel that if any particular provision of the statute is for some lacuna or defect in the statute declared unconsti 834 tutional or invalid, it is open to the legislature to pass a Validating Act with retrospective effect so that the State may not be saddled with liability of refund or other consequences which may arise as a result of the particular provision being declared invalid. The learned counsel argues that such a Validating Act with retrospective operation can be passed if the lacuna or the defect, because of which the provision is declared to be unconstitutional and invalid, be properly rectified by the Amending Act which seeks to validate the statutory provision which has been struck down as unconstitutional and invalid. It is his argument that without seeking to remove or rectify the defect or lacuna, no Validation can be made to defeat the judgment of the Court striking down any particular statutory provision. The learned counsel contends that enhancing the rate of tax from 6 1/2% to 45% with retrospective effect must necessarily be held to be arbitrary. It is his contention that mere enhancement of the rate without seeking to validate the provision by removing or rectifying the defector lacuna clearly results in retrospective imposition of tax and any such imposition of tax with retrospective effect must be held to be unreasonable and arbitrary. In support of the submissions made, particular reliance has been placed on the two decisions of this Court in the case of Janapada Subha, Chindwara etc. vs The Central Provinces Syndicate Ltd(1), and Municipal Corporation of the City of Ahemdabad vs New Shorock Spg. & Wvg. Co. Ltd. etc.(2) The material facts in the case of Janapada Sabha, Chindwara (supra) may briefly be indicated. In 1935, the Independent Mining Local Board, Chindwara, constituted under C.P. Local Self Government Act, 1920, resolved to levy a cess on coal extracted within the area at 3 pies per ton. The sanction of the Local Government, as required by S.51 (2) of Act, was obtained for the levy. In 1943, the levy was enhanced to 4 pies, in 1946 to 7 pies and in 1947 to 9 pies. The validity of the enhanced levy was challenged and this Court, in appeal, held that the increased levy would also require the previous sanction of the Local Government and such sanction not having been obtained, the levy at a rate higher than 3 pies was illegal. The State Legislature thereafter enacted the Madhya Pradesh Koyala Upkar (Manyata 835 karan) Adhinayam, 1964. Section 3(1) provides that 'notwithstanding a judgment of any Court, cesses imposed, assessed or collected by the Board in pursuance of the notifications and notices specified in the Schedule shall, for all purposes, he deemed to be, and to have always been validly imposed, assessed or collected as if the enactment under which they were issued stood amended at material times so as to empower the Board to issue the said notifications. In the Schedule were specified the three notifications enhancing the rate of cess. On the question whether the enhanced levy was validated by the 1964 Act, a five Judge Bench of this Court held that it did not give legal effect to the imposition of cess at the enhanced rate. This Court observed at p. 751: "The nature of the amendment made in Act 4 of 1920 has not been indicated. Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under S.51 (2) without the sanction of the Local Government. On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our judgment is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court. " In the Municipal Corporation of the City of Ahmedabad etc. vs New Shorock Spg. & Wvg. Co. Ltd. etc. (supra) the appellant corporation assessed the immovable properties of the respondents to property tax for the year 1964 65 and 1965 66 on the basis of the 'flat rate ' method under the Bombay Provincial Municipal Act. The assessments were challenged in the High Court but the petitions were dismissed. While appeals were pending in this Court, the Municipal Corporation, initiated proceedings for the recovery of the taxes and attached the properties of the assessees. The assessees challenged the attachment proceedings but their petitions were 836 again dismissed. In appeal against these orders in this Court the assessees prayed for interim stay, but this Court did not grant stay because the Municipal Corporation had undertaken to return the amounts if the respondents succeeded. This Court thereafter allowed the appeals by the assessees. Meanwhile an Amending 8 Act called the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1969 had been passed introducing section 152 A into the 1949 Act, but that provision was not brought to the notice of this Court. However, when the assessees demanded refund of the amounts illegally collected from the Municipal Corporation did not comply and hence the assessees moved the High Court again. These petitions were allowed and the Municipal Corporation appealed to this Court. While the appeals were pending the Bombay Provincial Municipal Corporation (Gujarat Amendment and Validity Provision) Ordinance, 1969, was passed and sub section (3) was introduced in section 152A. Sub section (3) which was introduced by the ordinance was in the following terms: "Not withstanding anything contained in any judgment, decree or order of any Court, it shall be lawful, and shall be deemed always to have been lawful, for the Municipal Corporation of the City of Ahmedabad to withhold refund of the amount already collected of recovered in respect of any of the property taxes to which sub section (1) applies till assessment or reassessment of such property taxes is made and the amount of tax to be levied and collected is determined under sub section (1): Provided that the Corporation shall pay simple interest at the rate of six per cent per annum on the amount of excess liable to be refunded under subsection (2), from the date of decree or order of the Court referred to in subsection (1) to the date on which excess is refunded," This Court held that under. section 152 A of the Act before the Corporation could detain any amount collected as property tax there must be an assessment according to law; but in the present case there were no assessment orders in accordance with the provisions of 1949 Act and the rules as amended by the Amending and, therefore, the appellant corporation was not entitled to retain the amount collected as the Section did not authorise the Corporation to retain the amounts illegally collected. This Court has further held that sub section (3) of section 152 A which commands the Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. makes a direct inroad into the judicial powers of the State; and the Legislatures which under the Constitution have, within prescribed limits powers to make laws prospectively and retrospectively are competent in exercise of these powers to remove the basis of a decision passed by a competent Court thereby rendering the decision ineffective, but no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decision given by Court and section 152 A (3) was repugnant to the Constitution. This Court at p. 295 has referred to the following observations made in Shri Prithi Cotton Mills Ltd. and Anr. vs The Broach Borough Municipality and Ors: "Before we examine section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a legislature sets out to validate a tax declared by a Court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court 's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a Court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be 838 done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometime this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the reenacted law. " This Court at p. 296 and 297 relied on the earlier decision of this Court in the case of Janapada Sabha, Chindwara vs The Central Provinces Syndicate Ltd. (supra). This Court finally observed at page 297: "We are clearly of the opinion that sub section (3) of section 152A introduced by the ordinance is repugnant to our Constitution. That apart, the said provision authorises the Corporation to retain the amounts illegally collected and treat them as loans. That is an authority to collect forced loans. Such conferment of power is impermissible under our Constitution." The learned counsel appearing on behalf of the State has submitted that this very contention that the State has sought to enhance the rate of tax without seeking to remove or rectify the lacuna which was there in the earlier Act and for which the earlier provision has been struck down by the High Court, was raised in the writ petition filed in the High Court by the appellant. It is the submission of the learned counsel that this contention has been rejected by the High Court for reasons indicated in the judgment. The learned counsel has referred to the following observation made by the High Court: "This Court has not held that the State is not at all entitled to collect any amount by way of tax on the sale of arrack. The sale price of arrack during the years 1966 to 1969 was fixed at 55 paisa a litre. The amount which the State was authorised to collect was six and a half per cent of 55 paise on the sale of a litre of arrack which comes to about three and a half paise; instead, the State collected 24 paise and the excess collection was 20.5 paise a litre. The 839 decision of this Court is that the State without authority of law was collecting excess amounts by way of tax on the sale of arrack. It is relevant to state that under the Act where the State is deemed to be a dealer entitled to collect tax under Section 19, there is no provision for making an assessment of tax by the assessing authorities as in the case of ordinary dealers Without making an assessment, the State Government is entitled to collect amounts by way of tax in the same manner as any other registered dealer authorised to do so under Section 1B. By enhancing the rate of tax from six and half to 45 per cent with retrospective effect by enacting Section 2 in the impugned Act, it has to be deemed that the rate of tax under the Act has always been 45 per cent of the taxable turnover ever since 1. 4. If the rate of tax was 45 per cent on the sale price of arrack which was 55 paise a litre, then the amount the State was authorised to collect comes to about 25 paise. Thus it will be seen that by the enactment of Section 2 of the impugned Act the very basis of the complaint made by the petitioners before this Court in the earlier writ petitions as also the basis of the decision of this Court in Cawasji 's case that the State is collecting amounts by way of tax in excess of what was authorised under the Act has been removed. Thus the decision of this Court has been rendered ineffective." The learned counsel seeks to adopt the aforesaid observations of the High Court as his submissions and contends that in view of the aforesaid reasoning which are cogent and sound it cannot be said that the impugned amendment is unconstitutional. He submits that there are no valid grounds for interfering with the judgment of the High Court. In the earlier case between the parties to which reference has already been made, the High Court issued writs directing the State Government to fore bear from collecting from the appellant any amount representing the sales tax on the following, namely, excise duty, health cess and education cess imposed on Arrack or special liquor and to refund to the appellant what might have been collected from them by way of sales tax on items of excise, health cess and education cess on Arrack or special liquor. The High Court had 840 passed the aforesaid order issuing appropriate writ in view of the High Court 's finding that sales tax is not payable on excise duty, health cess and education cess. In view of the aforesaid judgment and order passed by the High Court amounts collected by the States by way of Sales Tax on items of excise, health cess and education cess on Arrack or special liquor from the appellant became refundable to the appellant. The impugned amendment has been passed, as the Statement of objects which we have earlier set out clearly indicates to over ride the judgment of the High Court and to enable the State to hold on to the amount collected as sales tax on excise duty, health cess and education cess, if any, on Arrack or special liquor. It has to be noted that the said judgment of the High Court in the earlier case had become final and conclusive inasmuch as the special leave petition filed against the judgment by the State was withdrawn. The State instead of seeking to test the correctness and effect of the judgment and order of the High Court thought it fit to have the judgment and order nullified by introducing the impugned amendment. The amendment does not proceed to cure the defect or the lacuna by bringing in an amendment providing for exigibility of sales tax on excise duty, health cess and education cess. The impugned Amending Act may not, therefore, be considered to be a Validating Act. A Validating Act seeks to validate the earlier Acts declared illegal and unconstitutional by Courts by removing the defect or lacuna which led to invalidation of the law. With the removal of the defect or lacuna resulting in the validation of any Act held invalid by a competent Court, the Act may become valid, if the Validating Act is lawfully enacted. But the question may still arise as to what will be the fate of acts done before the Validating Act curing the defect has been passed. To meet such a situation and to provide that no liability may be imposed on the State in respect of such acts done before the passing of the Validating Act making such act valid, a Validating Act is usually passed with retrospective effect. The retrospective operation relieves the State of the consequences of acts done prior to the passing of the Validating Act. The retrospective operation of a Validating Act properly passed curing the defects and lacuna which might have led to the invalidity of any act done may be upheld, if considered reasonable and legitimate. 841 In the instant case, the State instead of remedying the defect or removing the lacuna has by the impugned amendment sought to raise the rate of tax from 6.1/2% to 45% with retrospective effect from the Ist April 1966 to avoid the liability of refunding the excess amount collected and has further purported to nullify the judgment and order passed by the High Court directing the refund of the excess amount illegally collected by providing that the levy at the Higher rate of 45% will have retrospective effect from Ist of April, 1966. The judgment of the High Court declaring the levy of sales tax on excise duty, education cess and health cess to be bad has become conclusive and is binding on the parties. It may or may not have been competent for the State Legislature to validly remove the lacuna and remedy the defect in the earlier levy by seeking to impose sales tax through any amendment on excise duty, education cess and health cess; but in any event, the State Government has not purported to do so through the Amending Act. As a result of the judgment of the High Court declaring such levy illegal, the State became obliged to refund the excess amount wrongfully and illegally collected by virtue of the specific direction to that effect in the earlier judgment. It appears that the only object of enacting the amended provision is to nullify the effect of the judgment which became conclusive and binding on the parties to enable the State Government to retain the amount wrongfully and illegally collected as sales tax and this object has been sought to be achieved by the impugned amendment which does not even purport or seek to remedy or remove the defect and lacuna but merely raises the rate of duty from 6.1/2% to 45% and further proceeds to nullify the judgment and order of the High Court. In our opinion, the enhancement of the rate of duty from 6.1/2% to 45% with retrospective effect is in the facts and circumstances of the case clearly arbitrary and unreasonable. The defect or lacuna is not even sought to be remedied and the only justification for the steep rise in the rate of duty by the amended provision is to nullify the effect of the binding judgment. The vice of illegal collection in the absence of the removal of the illegality which led to the invalidation of the earlier assessments on the basis of illegal levy, continues to taint the earlier levy. In our opinion, this is not a proper ground for imposing the levy at the higher rate with retrospective effect. It may be open to the Legislature to impose the levy at the higher rate with prospective operation but levy of taxation at higher rate which really amounts to imposition of tax with retrospective operation has 842 to be justified on proper and cogent grounds. This aspect of the matter does not appear to have been properly considered by the High Court and the High Court in our view was not right in holding that by the enactment of section 2 of the impugned Act the very basis of the complaint made by the petitioner before this Court in the earlier writ petition as also the basis of the decision of this Court in Cawasji 's case that the State is collecting amounts by way of tax in excess of what was authorised under the Act has been removed". We, accordingly, set aside the judgment and order of the High Court to the extent it upholds the validity of the impugned amendment with retrospective effect from Ist of April, 1966 and to the extent it seeks to nullify the earlier judgment of the High Court. We declare that section 2 of the impugned amendment to the extent that it imposes the higher levy of 45% with retrospective effect from the Ist day of April, 1966 and section 3 of the impugned Act seeking to nullify the judgment and order of the High Court are invalid and unconstitutional. We accordingly allow the appeals to this extent. The appellants shall be entitled to costs of these appeals with one set of hearing fee. N.V.K. Appeals allowed.

The appellants were Excise Contractors who had secured the excise privilege of retail sale of Toddy, Arrack or Special Liquor. The State Government had the monopoly of the first sale of Arrack which is country liquor other than Toddy. The manufacture of Arrack by distillation is done in the State under State control and the entire quantity manufactured in the State is sold to the State Government which in its turn supplies it to the bonded depots in Taluks. Under the Mysore Excise Act, Arrack is liable to excise duty at rates prescribed by the Government. The State does not collect excise duty from the distillers. From the distillery arrack is transferred to Bonded Depots and excise duty together with cesses thereon is collected from the contractors who are given the privilege or right to effect retail sales of Arrack. The exclusive privilege of retail vending of Arrack for each excise year which commences on the first day of July and ends on 30th June of the following year is sold by the State by auction. Under the terms and conditions governing the licenses, granted to the contractor whose bid is accepted and to whom the licenses for vending arrack is granted, the licensees were required to deposit in the State Treasury under separate heads of account the sales tax payable to the State Government and the excise duty with cesses. 826 However, with effect from 1.4.1966 the State Government started collecting sales tax computed on the sale price of Arrack together with excise duty and cesses payable thereon. So computed sales tax came to about 24 Paise a litre which was collected alongwith the price of Arrack sold to the licensees. The validity of the collection of the sales tax on the aforesaid basis was challenged by the appellants. A Division Bench of the High Court allowed the writ petition, D. Cawasji and Co. Mysore vs State of Mysore 1969 (1) Mys. L.J. 461, holding that the State Government could not under S.19 of the Sales Tax Act, collect sales tax on excise duty which is not a part of the selling price of Arrack. The appeal preferred by the State Government to this Court was withdrawn. During the pendency of the appeal the privileges of vending liquor in the excise year 1968 69 were sold without any variation in the price of Arrack fixed by the Government during the previous year at 55 paise a litre. During the year 1968 69 the State Government collected sales tax computing the same @ 6.1/2% of the actual sale price without including therein excise duty and cess. As the liability of the States to refund the amount collected as sales tax in excess amounted to lacs of Rupees, and with the object of avoiding the liability of refund by the State Government of the excess amount so collected, the State passed Ordinance No. 3 of 1969 on 17th July, 1969 which was replaced by the Mysore Sales Tax (Amendment) Act, 1969 on 19th July, 1969. The validity of this Amending Act was challenged by the appellants on the ground that the Amending Act was unreasonable and arbitrary but the High Court dismissed the writ petition. In the appeal to this Court, it was contended on behalf of the appellant that the Amending Act does not seek to rectify or remove the defect or lacuna on the basis of which the collection of the excess sales tax had been set aside by the High Court, and that the increase in the rate of sales tax from 61/2% to 45% with retrospective effect is clearly arbitrary and unreasonable for if, any particular provision of the statute is for some lacuna or defect in the statute declared unconstitutional or invalid, it is open to the Legislature to pass a Validating Act with retrospective effect so that the State may not be saddled with liability of refund or other consequences which may arise as a result of the particular provision being declared invalid. On behalf of the respondent State it was contended that by the enactment of S.2 of the impugned Act the very basis of the complaint made by the appellants in the earlier writ petitions that the State was collecting amounts by way of tax in excess of what was authorised under the Act had been removed. Allowing the Appeals, 827 ^ HELD: 1. The only object of enacting the amended provision it appears is to nullify the effect of the judgment which became conclusive and binding on the parties to enable the State Government to retain the amount wrongfully and illegally collected as sales tax and this object has been sought to be achieved by the impugned amendment which does not even purport or seek to remedy or remove the defect and lacuna but merely raises the rate of duty from 6.1/2% to 45% and further proceeds to nullify the judgment and order of the High Court. [841E F] 2. The enhancement of the rate of duty from 6.1/2% to 45% with retrospective effect is in the facts and circumstances of the case clearly arbitrary and unreasonable. The defect or lacuna is not even sought to be remedied and the only justification for the steep rise in the rate of duty by the amended provision is to nullify the effect of the binding judgment. [841 F] 3. The vice of illegal collection in the absence of the removal of the illegality which led to the invalidation of the earlier assessments on the basis of illegal levy. continues to taint the earlier levy. This is not a proper ground for imposing the levy at the higher rate with retrospective effect. [841G] 4. It may be open to the Legislature to impose the levy at the higher rate with prospective operation but levy of taxation at higher rate which really amounts to imposition of tax with retrospective effect has to be justified on proper and cogent grounds. [841H] 5. The amendment does not proceed to cure the defect or the lacuna by bringing in an amendment providing for exigibility of sales tax on excise duty, health cess and education cess. The impugned Amending Act cannot therefore be considered to be a Validating Act. A Validating Act seeks to validate the earlier Acts declared illegal and unconstitutional by Courts by removing the defect or lacuna which led to invalidation of the law. With the removal of the defect or lacuna resulting in the validation of any Act held invalid by a competent Court, the Act may become valid if the Validating Act is lawfully enacted. To provide that no liability may be imposed on the State in respect of acts done before the passing of the Validating Act making such act valid, a Validating Act is usually passed with retrospective effect. The retrospective operation relieves the State of the consequences of acts done prior to the passing of the Validating Act. The retrospective operation of a Validating Act properly passed curing the defects and lacuna which might have led to the invalidity of any act done may be upheld, if considered reasonable and legitimate. [840E A] In the instant case, the State instead of remedying the defect or removing the lacuna has by the impugned amendment sought to raise the rate of tax from 6.1/2% to 45% with retrospective effect from the 1st April 1966 to avoid the liability of refunding the excess amount collected and has further purported to nullify the judgment and order passed by the High Court directing the refund of the excess amount illegally collected by providing that the levy at the higher 828 rate of 45% will have retrospective effect from 1st of April 1966. The judgment of the High Court declaring the levy of sales tax on excise duty, education cess and health cess to be bad became conclusive and was binding on the parties. It may or may not have been competent for the State Legislature to validly remove the lacuna and remedy the defect in the earlier levy by seeking to impose sales tax through any amendment on excise duty, education cess and health cess but in any event, the State Government has not purported to do so through the Amending Act. [841A D] D. Cawasji & Co. Mysore vs State of Mysore, , D. Cawasji & Co. and Others vs The State of Mysore 1968 (16) L.R. 641, Janapada Sabha, Chindwara etc. vs The Central Provinces Syndicate Ltd.; , , Municipal Corporation of the City of Ahmedabad vs New Shorock Spq. and Wvg. & Co. Ltd. etc ; and Shri Prithi Cotton Mills Ltd. and Anr. vs The Broach Borough Municipality and Ors., , referred to.

l Appeal No. 133 1963. Appeal from the judgment and decree dated November 17, 1960, of the Orissa High Court in First Appeal No. 45 of 1955. M. C. Setalvad, R. K. Garg, M. K. Ramamurthi, D. P. Singh and section C. Agarwala, for the appellant. section V. Gupte, Additional Solicitor General of India, Gana pathy Iyer and R. H. Dhebar, for the respondents. March 9, 1964. The judgment of the Court was delivered by GAJENDRAGADKAR, C.J. The principal point of law, which arises in this appeal is whether the Sanad issued in favour of the appellant, Rajkumar Narsingh Pratap Singh Deo, by his elder brother, the Ruler of Dhenkanal State, on March 1, 1931, is existing law within the meaning of article 372 of the Constitution read with cl. 4(b) of Order No. 31 of 1948 issued by the respondent State of Orissa on January 1, 1948. This question arises in this way. The State of Dhenkanal which was an independent State prior to 1947 merged with the Province of Orissa in pursuance of a Merger Agreement entered into between the Ruler of Dhenkanal and the Dominion of India on December 15, 1947. This Agreement came into force as from January 1, 1948. In consequence of this Agreement the entire administration of the State of Dhenkanal was taken over by the State of Orissa pursuant to the authority conferred on it by the Central Government under section 3(2) of the Extra (No. 47 of 1947). After the Sanad in question was issued in favour of the appellant, be was getting a monthly allowance of Rs. 5001 from the Dhenkanal District Treasury on the authority of a permanent Pay Order which had been issued in his favour by the Ruler of Dhenkanal on the basis of the said Sanad. This payment was discontinued by the respondent from 1st of May, 1949 and the several representations made by the appellant to the various authorities of the respondent to reconsider the matter failed. That is why lie filed the present suit on September 26, 1951 in the Court of the subordinate Judge, Dhenkanal, alleging that the act of discontinuing the appellant 's pension was illegal, and asking for appropriate reliefs in that behalf. It is from this suit that the present appeal arises. 114 The appellant 's case is that in the family of the appellant, it has been recognised as a customary right of the junior members of the family to receive adequate maintenance consistently with the status of the family. Indeed, the appellant 's allegation is that this custom was recognised in Dhenkanal and enforced as customary law in the State. The grants made to the members of the Royal Family for their maintenance consisted of lands and cash allowances. These latter were described as Kharposh allowances and they were charged and paid out of the revenue of the former State of Dhenkanal. It was in accordance with this customary law that the Sanad in question was issued by the Ruler of Dhenkanal in favour of the appellant. By this Sanad, certain lands were granted to the appellant and a cash allowance of Rs. 5001 per month was directed to be paid to him for life. The appellant 's grievance is that this , rant of Rs. 5001 allowance has been discontinued by the respondent and that, according to the appellant, is an illegal and unconstitutional act. In support of his plea that the respondent was bound to continue the payment of the cash allowance, the appellant urged in his suit that the grant was a law within the meaning of article 372 and as such, it had to be continued. He also alleged that after the merger of Dhenkanal with Orissa, his right to receive the grant was recognised by the respondent and acted upon; and that is another reason why he claimed an appropriate relief in, the form of an injunction against the respondent. Several other pleas were also taken by the appellant in support of his claim, but it is not necessary to refer to them for the purpose of the present appeal. The respondent denied the appellant 's claim and urged that having regard to the nature of the grant on which the appellant has rested his case, it was competent to the respondent to discontinue the grant. The grant in question is not law under article 372 and just as it could be made by the Ruler in 1931 by an executive act, it can be discontinued by the respondent by a similar executive act since the respondent is the successor of the Ruler. It was also urged by the respondent that the appellant 's allegation that the respondent had recognised and agreed to act upon the grant of cash allowance, was not well founded. Both the learned trial Judge who tried the appellant 's case, and the High Court of Orissa before which the appellant took his case in appeal, have, in the main, rejected the appellant 's contention, with the result that the appellant 's suit has been dismissed. The appellant then applied for and obtained a certificate from the High Court and it is with the certificate thus granted to him that he has come to this Court in appeal. The first and the main point which Mr. Setalvad for the appellant has urged before us is that the Sanad on which the appellant 's claim is founded, is law. At the time when the 115 Senad was granted, the Ruler of Dhenkanal was an absolute monarch and in him. vested full sovereignty; as such absolute sovereign, he was endowed with. legislative, judicial and executive powers and authority and whatever order tie passed amounted to law. In the case of an absolute monarch whose ' word is literally law, it would be idle, says Mr. Setalvad, to distinguish between binding orders issued by him which are legislative from other binding orders which are executive or administrative. All binding orders issued by such a Ruler are, on the ultimate analysis, law, and the Sanad in question falls under the category of such law. In support of this argument, Mr. Setalvad has referred Lis to the definition of the words "existing law" prescribed by article 366(10) of the Constitution. article 366(10) provides that "existing law" means any law, ordinance, order, bye law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a, law, ordinance, order, bye law, rule or regulation. Basing himself on this definition, Mr. Setalvad also relies on the provisions of article 372(1) which provides for the continuance in force of existing laws; this continuance is, of course, subject to the other provisions of the Constitution and it applies to such laws as were in force in the territory of India immediately before the commencement of the Constitution, until they are altered, repealed or amended by a, competent Legislature or other competent authority. These provisions are invoked by Mr. Setalvad primarily by virtue of cl. 4(b) of Order 31 of 1948 issued by the respon dent on the 1st of January, 1948. It is well known that by s.3(1) of the Extra , the Central Government was given very wide powers to exercise extra provincial jurisdiction in such manner as it thought fit. Section 3(2) provided that the Central Government may delegate any such jurisdiction as aforesaid to any officer or authority in such manner and to such extent as it thinks fit. The width of the powers conferred on the Central Government can be properly appreciated if the provisions of section 4 are taken into account. Under section 4(1), the, Central Government was authorised by notification in the Official Gazette to make such orders as may seem to it expedient for the effective exercise of the extraforeign jurisdiction of the Central Government. Section 4(2) indicates by cls. (a) to (d) the categories of orders which can be passed by the Central Government in exercise of its jurisdiction. The sweep of these powers is very wide and they had to be exercised in the interests of the proper governance of the areas to which the said Act applied. Under section 3(2), the Central Government bad delegated its powers to the Province of Orissa in respect of States which had merged with it, and it was in exercise of its powers as such delegated that Order 31 of 1948 116 was issued by the Province of Orissa (now the respondent). 4 of the Order dealt with the question of the laws to be applied to the merging areas. 4(a) referred to the enactments specified in the first column of the Schedule annexed to the Order and made them applicable as indicated in it. 4(b) provided that as respects those matters which are not covered by the enactments applied to the Orissa States under sub para (a), all laws in force in any of the Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage, or statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra, Provincial Jurisdiction Act, 1947. There is a proviso to this sub clause to which it is unnecessary to refer. The argu ment is that by virtue of cl. 4(b) of this Order, the customary law prevailing in the State of Dhenkanal prior to its merger continued to operate as law in the territory of Dhenkanal and that is how it is operative even now, because it has not been repealed or amended. Since the Sanad issued in favour of the appellant is, according to the appellant 's case, law, there would be no authority in the respondent to cancel the payment of cash allowance to the appellant merely by an executive order. If the respondent wants to terminate the payment of the cash allowance to the appellant, the only way which the respondent can legitimately adopt is to make a law in that behalf, or issue an order under cl. 4(b) of the Order. That, broadly stated, is the argument which has been pressed before us by Mr. Setalvad. We do not think that the basic assumption made by Mr. Setalvad in presenting this argument is sound. It would be noticed that the basic assumption on which the argument is based is that in the case of an absolute monarch, there can be no distinction between executive and legislative orders. In other words, it is assumed that all orders which are passed by an absolute monarch, are binding, and it is idle to enquire whether they are executive or legislative in character, because no such distinction can be made in regard to orders issued by an absolute monarch. It is true that the legislative, executive and judicial powers are all vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers. The jurisprudential distinction between the legislative and the executive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in 117 their kingdoms, the basic principles of jurisprudence which distinguish between the three categories of powers are inapplicable. A careful examination of the orders passed by an absolute monarch would disclose to a jurist whether the power exercised in a given case by issuing a given order is judicial, legislative, or executive, and the conclusion reached on jurisprudential grounds about the nature of the order and the source of power on which it is based would nevertheless be true and correct. That, indeed, is the approach which must be adopted in considering the question as to whether the grant in the present case is law within the meaning of article 372 as well as cl. 4(b) of Order 31 of 1948; and so, prima facie, it does not seem sound to suggest that in the case of an absolute monarch, that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable. In dealing with this aspect of the matter, it is hardly necessary to examine and decide what distinguishes a law from an executive order. A theoretical or academic discussion of this problem would not be necessary for our present purpose, because all that we are considering at this stage is whether or not it would be possible to consider by reference to the character of the order, its provisions, its context and its general setting whether it is a legislative order or an executive order. Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts. In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the grantee both agree about the making and the acceptance of the grant; not so in the case of law. Law in the case of an absolute monarch is his command which has to be obeyed by the citizens whether they agree with it or not. Therefore, we are inclined to hold that Mr. Setalvad is not right in making the unqualified contention that while we are dealing with a grant made by absolute monarch, it is irrelevant to enquire whether the grant is the result of an executive action, or a legislative action. On Mr. Setalvad 's contention, every act of the absolute monarch and every order passed by him would become law though the act or order may have relation exclusively to his personal matters and may have no impact on the public at large. That is why it is unsound to suggest that the jurisprudential distinction between orders which are judicial, executive or legislative or in relation to purely individual and personal matters should be treated as irrelevant in dealing with Acts or orders passed even by an absolute monarch. Realising the difficulty in his way, Mr. Setalvad has strongly relied on certain decisions of this Court which, according to him, support the broad point which he has raised before 118 us. It is, therefore, necessary to examine these decisions. The first case on which Mr. Setalvad relies is that of Ameer unNissa Begum vs Mahboob Begum(1). In that case, this Court was called upon to consider the validity 'of the Firman issued by the Nizam of Hyderabad on the 19th February, 1939, by which a Special Commission had been constituted to investigate and submit a report to him in the case of succession to a deceased Nawab which was transferred to the commission from the file of Darul Quaza Court. Dealing with the question as to whether the Firman in question was passed by the Nizam in exercise of his legislative power or judicial power, Mukherjea, C.J., speaking for the Court, observed that the Nizam was the supreme legislature, the supreme judiciary and the supreme head of the executive and there were no constitutional limitations upon his authority to act in any 'of these capacities. He also observed that the Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; therefore so long as a particular firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed. It appears, however, that the learned counsel appearing in that case did not argue this point, and so, the question as to whether it would be possible or useful to draw a line of demarcation between a Firman which is legislative and that which is executive, was neither debated before the Court, nor has it been examined and decided as a general proposition of law. In The Director of Endowments, Government of Hyderabad vs Akram Ali(2), similar observations were repeated by Bose, J., who spoke for the Court on that occasion. Dealing with the Firman issued by the Nizam on the 30th December, 1920, which directed the Department to supervise the Dargah until the rights of the parties were enquired into and decided by the Civil Court, it was 'observed that the Nizam was an absolute sovereign regarding all domestic matters at the time when the Firman was issued and his word was law. That is bow the validity of the Firman was not questioned and it was held that its effect was to deprive the respondent before the Court and all other claimants of all rights to possession pending enquiry of the case. In this case again, as in the case of Ameer un Nissa Begum(1), the point does not appear to have been argued and the observations are, therefore, not intender to lay down a broad or general proposition as contended by Mr. Setalvad. That takes us to the decision in the case of Madhaorao Phalke vs The State of Madhya Bharat(3). On this occasion, This Court was called upon to consider the question as to (1) A.I.R. 1955 S.C. 352. (2) A.I.R. 1956 S.C. 60 (3) ; 119 whether the relevant Kalambandis issued by the Ruler of Gwalior constituted law, 'or amounted merely to executive orders. In the course of the judgment, the passages in the two cases to which we have just referred were, no doubt, quoted; but the ultimate decision was based not so much on any general ground as suggested by Mr. Setalvad, as on the examination of the character of the Kalambandis themselves and other ' relevant factors. If Mr. Setalvad 's argument be well founded and the Kalambandis had to be treated as law on the broad , round that they were orders issued by an absolute monarch, it would have been hardly necessary to consider the scope and effect of the Kalambandis, the manner in which they were passed, and the object and effect of their scheme. In fact, these matters were considered in the judgment and it was ultimately held that "having regard to the contents of the two orders and the character of the provisions made by them in such a detailed manner, it is difficult to distinguish them from statutes or laws; in any event, they must be treated as rules or regulations having the force of law". That was the finding made by the High Court and the said finding was affirmed by this Court. Therefore, though this judgment repeated the general observations made by this Court on two earlier occasions, it would be noticed that the decision was based not so much on the said observations, as on a careful examination of the provisions contained in the Kalambandis themselves. In Promod Chandra Deb vs The State of Orissa(1), this Court has held that the grant with which the Court was concerned, read in the light of Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhdars, was law. In discussing the question, Sinha, C.J., has referred to Order 31 of the Rules and Regulations and has observed that like the Kalambandis in the case of Phalke(2), the said Rules has the force of law and would be existing jaw within the meaning of article 372 of the Constitution. This case does not carry the position any further except that the same general observations are reproduced. In the case of Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan(3), while dealing with the question as to whether the Firman issued by the Udaipur Darbar in 1934 was law or not, this Court examined the scheme of the said Firman, considered its provisions, their scope and effect and came to the conclusion that it was law. Having thus reached the conclusion that the Firman, considered as a whole, was law, the general observations on which Mr. Setalvad relies were reproduced. But as in the case of Phalke (2), so in this case, the decision does not appear to be based on any general or a priori consideration, but it is based more particularly on the examination of the scheme of the Firman and its provisions. (1) [1962] Supp. 1 S.C.R. 405,410. (2) ; (3) [1964] 1 section C. R. 561. 120 In the case of Maharaja Shree Umaid Mills Ltd. vs Union of India(1), a similar question arose for the decision of this Court in regard to an agreement made on the 17th of April, 1941. The point urged before the Court was that the said agreement was law, and reliance was placed on the several general observations to which we have already referred. section K. Das. J. who spoke for the Court examined the said observations and the context in which they were made and rejected the plea that the said observations were intended to lay down a general proposition that in the case of an absolute monarch, no distinction can be made between his legislative and his executive acts. In the result, the agreement in question was held to be no more than a contract which was an executive act and not a law within the meaning of article 372. The same view has been recently expressed by Hidayatullah, Shah and Ayyangar, JJ. in the judgments respectively delivered by them in The State of Gujarat vs Vora Fiddali Badruddin Mithibarwala(2). Therefore, a close examination of the decisions on which Mr. Setalvad relies does not support his argument that this Court has laid down a general proposition about the irrele vance or inapplicability of the well recognised distinction between legislative and executive acts in regard to the orders issued by absolute monarchs like the Raja of Dhenkanal in the present case. The true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents a legislative act and continues to remain operative by virtue of cl. 4(b) of the Order, all relevant factors must be considered before the question is answered; the nature of the 'order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters will have to be examined before the character of the order is judicially determined, and so, we are satisfied that Mr. Setalvad is not right in placing his argument as high as to say that the Sanad issued in favour of the appellant by the Raja of Dhenkanal must be field to be law without considering the nature of the rant contained in it and other relevant circumstances and facts. We must, therefore. proceed to examine these relevant facts. Let us then examine the Sanad. It consists of three clauses. The first clause refers to the practice in the State of Dhenkanal under which the Rajas made grants in hereditary rights to their relatives, and it adds that there exists a patent necessity for making an adequate provision for the grantee. (1) ; (2) ; 121 the appellant, to enable him to maintain his dignity as a Rajkumar of the State and to maintain himself, his family, his heirs and descendants in a manner befitting his and their position. 'That is why out of love and affection for him, the grantor made the khanja grant in the shape of a monthly cash allowance of Rs. 500/ for his life time and also an assignment of land measuring 6942 71 5 acres specified in the Schedule attached to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention. Clause 2 of the Sanad imposes the condition of loyalty on the grantee and his heirs; and by cl. 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation, Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, therefore, represents purely an executive act on the part of the Ruler intended to discharge his obligations to his ,junior brother under the personal law of the family and the customary law of the State. It would, we think be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law , but no action taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority. 'Therefore, we have no difficulty in holding that the Sanad in question is a purely executive act and cannot be regarded as law as contended by Mr. Setalvad. It was then faintly argued by Mr. Setalvad that the obli gation undertaken by the Ruler was recognised by the respon dent, and so, it could not be cancelled by the respondent merely by an executive act. In our opinion, there is no substance in this argument. If the act by which the grant was made was a purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by an executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by cl. 4(b) of the Order of 1948 and article 372 of the Constitution; but to say that the customary law in that behalf is continued is very different from saying that the amount of maintenance fixed by the grant cannot be 122 varied or altered. What the respondent has done is to stop the payment of cash allowance of Rs. 5001 per month an a does not mean alteration of the law. It is common ground that the grant of the land covered by the Sanad has not been disturbed, and so, all that the impugned action of the respondent amounts to is to reduce the total maintenance allowance granted to the appellant by the Ruler in 19 3 1. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors , the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant. But apart from this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondent 's action in discontinuing the payment of cash allowance to him. The plea that payment was made for some time after the merger can hardly avail the appellant. in contending that the discontinuance is invalid. In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to discontinue the payment of the said allowance. The result is, we confirm the decision of the High Court, though on somewhat different grounds. The appeal according ly fails and is dismissed. There would be no order as to costs.

The Ruler of Dhenkanal State granted a sanad by way of Khorposh allowance to his younger brother, the appellant giving certain lands and a maintenance allowance, under the customary law of the State. After the merger of that State to the Dominion of India which became effective on January 1, 1948, the Government of Orissa took over the administration of the State and discontinued the cash allowance. The appellant challenged the validity of the order of discontinuance by a suit in the Court of Subordinate Judge. The suit was dismissed. On appeal to this Court it was urged on behalf of the appellant that the sanad issued by an absolute monarch was law, and was continued by articles 366(10), 372(1) of the Constitution and cl. 4(b) of the Order 31 of 1948 issued by the Orissa Government in exercise of the power delegated to it by the Central Government under section 3(2) of the Extra . Held: (i) It was not correct to say that in dealing with a grant made by an absolute monarch any enquiry as to whether the grant was the result of an executive or legislative act was altogether irrelevant. This Court did not lay down any inflexible rule that the well recognised jurisprudential distinction between legislative and executive acts was wholly irrelevant or inapplicable to such a case. Ameer un Nissa Begum vs Mahboob Begum, A.I.R. 1955 S.C. 352, Director of Endowments, Government of Hyderabad vs Akram Ali, A.T.R. , Madhaorao Phalke vs State of Madhya Bharat, ; , Promode Chandra Deb vs State of Orissa, [1962] Supp. 1 S.C.R. 405, Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan, [1964] 1 S.C.R. 561, Maharaja Shree Umaid Mills Ltd. vs Union of India, ; and State of Gujarat vs Vora Fiddali Badruddin Nithibarwala, ; , considered. In such an enquiry it was necessary to consider such rele vant factors as the nature of the order, its scope and effect, general setting and context and the method adopted by the Ruler in promulgating it. So judged, the Sanad in question had no legislative element in any of its provisions and was a gift pure and simple made in pursuance of the custom of the family and customary law of the State. The gift therefore, was an executive act of the Ruler and did not amount to law although the Ruler was discharging by it his obligation under personal or customary law. 113 The gift being an executive act of the Ruler could be modified or cancelled by an executive act of the successor to the Ruler. The discontinuance of the cash allowance could not affect the continuance of the customary law under cl. 4(b) of the Order of 1948 and article 372 of the Constitution. Nor could the plea of payment of such allowance even after the merger invalidate the discontinuance.

Appeal No. 356 of 1965. Appeal by special leave from the judgment and decree dated October 27, 1964, of the Madhya Pradesh High Court in Second Appeal No. 240 of 1964. B. Sen and M. section Gupta, for the appellants. section T. Desai and A. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Sarkar, J. The first respondent Tikam Das had let out a house in the city of Jabalpur to the second respondent Surya Kant Naidoo. Sometime in 1961 Tikam Das, herein referred to as the landlord, served a notice on Surya Kant, herein referred to as the tenant, terminating the tenancy and later in the same year filed a suit in a civil court against the latter for ejectment. On June 23, 1962, by consent of parties, a decree for ejectment was passed in that suit in favour of the landlord against the tenant. The appellants who were occupying the premises as sub tenants under the tenant had not been made parties to the suit. On June 25 and 26, 1962, the appellants served notices on the landlord under section 15(2) of the Madhya Pradesh Accommo dation Control Act, 1961 which had come into force on Decem ber 30, 1961, claiming that as the tenant had sub let the premises to them before the Act had come into force with the consent of the landlord, they had become his direct tenants under section 16(2) of the Act and on June 28, 1962, the appellants filed a suit against both the landlord and the tenant in a civil court claiming a declaration that they had in the circumstances become direct tenants of the premises under the landlord. On June 30, 1962, the landlord sent a reply to the notices sent by the appellants in which he denied that the sub letting by the tenant had been with his consent or was lawful. It does not appear that the landlord had put his decree in execution for evicting the appellants. One of the points canvassed in the High Court was whether in view of section 45(1) of the Act a civil court was competent to entertain the appellants ' suit and it held that it was not and in that view of the matter dismissed the suit. The question is whet her the High Court was right. The Act established certain authorities called Rent Controlling Authorities and gave them power to decide various matters. Sub 130 ,section (1) of section 45 states that "no civil court shall entertain any suit or proceeding in so far as it relates. to any. . matter which the Rent Controlling Authority is empowered by ,or under this Act to decide". If, therefore, the suit related to a matter which a Rent Controlling Authority had jurisdiction to decide, the civil court would have no jurisdiction to entertain it. Now the appellant 's suit was for a declaration that they had .become direct tenants under the landlord by virtue of section 16(2) of the Act. That provision is in these terms section 16. (1) (2) Where, before the commencement of this Act, the interest of a tenant in respect of any accommodation has been determined without determining the interest of any sub tenant to whom the accommodation either in whole or in part had been lawfully sub let, the subtenant shall, with effect from the date of the commencement of this Act be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued. Clearly the appellants would not be entitled to the benefit of this provision unless the sub letting to them was lawful. This is where their difficulty arises. Sub section (2) of section 15 deals with the case of a sub letting before the Act and provides for a notice of the sub letting being given to the landlord by the tenant and the sub tenant. There is no dispute that the sub letting to the appellants was before the Act and they had given the notice. The subletting, therefore, comes within sub section (2) of section 15. Then we come to sub section (3) of section 15 which provides, "Where in any case mentioned in sub section (2), the landlord contests that the accommodation was not lawfully sub let and an application is made to the Rent Controlling Authority in this behalf, either by the landlord or by the sub tenant, within two months of the date of the receipt of the notice of sub letting by the landlord or the issue of the notice by the tenant or the sub tenant, as the case may be, the Rent Controlling Authority shall decide the dispute. " This sub section empowers a Rent Controlling Authority to decide whether a sub letting was lawful where the landlord disputes that the subletting was lawful, on an application made to it by either party within the period mentioned. When the Rent Controlling Authorities have the power to decide the lawfulness of the subletting, a civil court is plainly debarred from deciding that question by section 45(1). In the present case the landlord did contend 131 that the sub letting was not lawful. The appellants 's suit was filed within the period mentioned in sub section (3) of section 15. So the Rent Controlling Authorities had the power to decide the question on which the appellants ' suit depended. It follows that the suit related to a matter which the Rent Controlling Authorities had power to decide and no civil court was, therefore, competent to entertain it. Hence we think that the High Court was right in deciding that the suit had been filed in a court incompetent to entertain it, and in dismissing it. It was said that a Rent Controlling Authority would have no power to decide a dispute as to whether a sub letting was lawful where the notice mentioned in section 15(2) had not been served, orafter the period mentioned in sub section (3) of that section had expired if it had not been moved earlier. Another question mooted was that the two months mentioned in sub section (3) only provided a special period of limitation for the application mentioned in it and the provision of the period did not mean that a Rent Controlling Authority had power to decide the matter only if an application had been made within that period, so that if no such application had been made, after the expiry of the period a civil court would have jurisdiction to decide a dispute as to whether a sub letting was lawful. The point is that the real effect of section 15(3) was to deprive the civil court of the jurisdiction to decide that dispute for all time. We do not feel called upon to decide these questions. They do not arise in the present case and it was not said that these questions affect the question of the competence of the civil court to try the present suit. They clearly do not. The suit was filed within the period of two months during which admittedly the Rent Controlling Authorities had jurisdiction to decide the dispute on which it was based. Whatever may be the jurisdiction of a civil court on other facts, in the present case it clearly had no jurisdiction to entertain the appellants ' suit. It was said on behalf of the appellants that section 15(3) had no application to the present case as the landlord had before the appellants ' suit was filed, obtained a decree against the tenant for eviction. We are unable to accept this contention. There is nothing in sub section (3) of section 15 to indicate that it does not apply to a case where a landlord has obtained such a decree. If in spite of the decree the appellants had a right under the Act to a direct tenancy under the landlord, they had a right to move the Rent Controlling Authority within the period mentioned (now expired) for a decision of the question that the sub letting to them 132 was lawful. If the Rent Controlling Authority had the power to decide that question, a civil court would not be competent to decide the dispute in a suit brought within that period. So the decree does not make a civil court, a court competent to entertain the suit. It was also said that as the landlord had not applied under sub section (3) of section 15 and this is not disputed by the landlord that provision is put out of the way and it must now be held that the appellants had become direct tenants under him. The words of the sub section lend no support to this contention. The appellants can claim the direct tenancy only when they establish that the sub letting to them was lawful. As they claim that right, they must establish it and they do not do so by the failure of the landlord to move for a decision that the sub letting was not lawful. This contention of the appellants seems to us to be untenable. In any case it is difficult to appreciate how the failure of the landlord to apply under section 15(3) would affect the question of the competence of a civil court to entertain the appellants ' suit which had been filed before the time limited by the sub section for the landlord to apply to a Rent Controlling Authority had expired. We now come to sub section (2) of section 45 of the Act which is in these terms : S.45. (1) (2)Nothing in sub section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any accommodation to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such accommodation. It is said by the appellants that their suit raises a question of title to the tenanted premises within the meaning of that word as used in the subsection. This contention does not seem to us to be well founded. "Accommodation" has been defined in the Act as a building, garden, ground, out house, or garage appurtenant to it, its fixtures and furniture supplied for use there and also land not used for agricultural purpose. The word, therefore, refers to property of certain varieties and in our opinion the words "title to any accommodation" in the sub section mean a right to or interest in property existing otherwise than under the Act and not those created by it. It does not include a subtenant 's right created by the Act to be treated under certain cir 133. cumstances as the direct tenant of the landlord. This seems to, us to be clear from the whole scheme of the Act, which is to create certain rights and to leave them in certain cases to be decided by the Rent Controlling Authority established under it, quickly, inexpensively and summarily and with restricted rights of appeal from their decision. The object of the Act as disclosed by its scheme would be defeated if civil courts were to adjudicate upon the rights which it was intended the Rent Controlling Authorities would decide, with all the consequent delay, expense and series of appeals. Again if the civil courts had the power to decide such rights, section 15 (3) would be meaningless, for the decision of the dispute as to whether sub letting was lawful was necessary only for establishing a sub tenant 's right to a direct tenancy under the landlord under section 16 (2). Sub section (2) of section 45 was clearly intended only to protect a right to resort to a civil court for the decision of a question as to an interest in property existing apart from the Act concerning which an adjudication may have been incidentally made by a Rent Controlling Authority in deciding a question which it had been expressly empowered by the Act to decide. We, therefore, think that sub section (2) of section 45 does not authorise a civil court to decide the dispute as to the lawfulness of the sub letting and does not therefore make it competent to entertain the appellants ' suit. For these reasons, in our view, no civil court had jurisdiction to try the appellants ' suit and it was rightly dismissed as having been filed in an incompetent tribunal. The result is that the appeal fails and is dismissed with costs. Appeal dismissed.

An election petition was filed by the appellant against the first respondent challenging his election on May 4, 1963 to the Madhya Pradesh Legislative Assembly. A number of allegations including those of corrupt practice were made against the first respondent in the petition. The affidavit filed in support of the allegations of corrupt practice as required by Rule 94A of the Conduct of Election Rules, 1961, was sworn by the petitioner before the Clerk of Court in the District Court of Jabalpur. The first respondent in his objections before the Election Tribunal raised the question whether the affidavit under Rule 94A was sworn before a proper authority. The Election Tribunal accepted the objection but allowed the appellant to file a second affidavit sworn before a proper authority. The orders of the Tribunal were challenged by the first respondent before the High Court under article 226 and article 227 of the Constitution and the High Court, holding that the fresh affidavit could not be called and that there was no proper affidavit, quashed the orders of the Tribunal and directed the Tribunal to pass an order according to law. The appellant appealed to this Court on certificate of fitness granted by the High Court. Although the appellant had conceded before the High Court that his first affidavit was not proper he was allowed to withdraw his concession in this Court. It was contended on behalf of the appellant that the clerk of Court before whom his first affidavit bad been sworn had been duly appointed ex officio Commissioner of Oaths under section 139(c) of the Code of Civil Procedure and an affidavit sworn before him complied with r. 94A. The respondent however contended that a Commissioner of Oaths appointed under section 139(c) was for the purpose of affidavits under the Civil Procedure Code only, just as a Commissioner appointed under section 539 of the Criminal Procedure Code could swear affidavit under that Code only. HELD : There is no analogy between an affidavit sworn under section 539 Cr. P. C. and the affidavit sworn here. An affidavit sworn by a district Clerk of Court may not be good for the purpose of the Code of Criminal Procedure and vice versa but that is because the restriction is to be formed in section 139 of the one Code and section 539 of the other. Rule 94A makes no such condition and makes receivable an affidavit before a Commissioner of Oaths without specifying of what kind. In this view of the matter the affidavit sworn before the District Clerk of Court who undoubtedly was a Commissioner of Oath could only be excluded by taking an extreme and technical view which was not justified. [484 B D]

minal Appeal No. 177 of 1963. Appeal from the judgment and order dated May 14, 1963 of the Calcutta High Court in Criminal Appeal No. 380 of 1962. section C. Das Gupta and Sukumar Ghose, for appellants. C. K. Daphtary, Attorney General, A. N. Sinha and P. K. Mukherjee, for the respondent. The Judgment of MUDHOLKAR and SATYANARAYANA RAJU JJ. was delivered by MUDHOLKAR J. BACHAWAT J. delivered a separate Judgment. Mudholkar, J. This is an appeal by certificate from a judg ment of the High Court of Calcutta setting aside the acquittal of M/s. Baburally Sardar of Steward Hogg Market, Calcutta, appellant No. 1 and of Abdul Razzak, a partner of that firm, appellant No. 2, in respect of an offence under section 16 (1) (a) (i) of the read with section 7(1) of that act. The facts which are not in dispute are briefly these : On June 1, 1960 a Food Inspector of the Corporation of Calcutta visited the shop of the appellants. At that time Abdul Razzak was in charge. He took samples of Comela Brand condensed milk from the shop, one of which was sent to the Public Analyst. Upon an analysis made by the Public Analyst the milk fat content of the condensed milk was found to be 3.4% which did not conform to the prescribed standard in respect of condensed milk. A complaint was thereupon lodged against the firm before the Municipal Magistrate and Additional Chief Presidency Magistrate, 817 Calcutta. Apart from the firm five other persons, including Abdul ' Razzak were also named as accused persons. One of the accused persons, Mohd. Yasin did not appear but it was represented to the learned Magistrate that the person was not mentally fit. Thereupon the counsel for the Corporation gave him up. The other accused persons pleaded not guilty and were eventually acquitted by the Magistrate. Against that order an appeal was preferred before the High Court under section 417 of the Code of Criminal Procedure. The High Court, however, allowed the appeal only against the appellants but dismissed it against the remaining accused persons. The defence of the appellants was based upon section 19(2) of the Act and was briefly this : The tins of condensed milk were purchased by the firm on May 3, 1960 from Messrs section Choudhury Brothers under a document of sale exhibit A. At that time the firm had demanded a warranty from the traders, that is, Messrs. Choudhury Brothers, but they did not furnish a written guarantee on the ground that a certificate and a warranty had been given on each tin of condensed milk. The appellants further pleaded that the tins were in the same condition in which they were when they were purchased from Messrs Choudhury Brothers and that they had no reason to believe that there was any alteration in their nature, substance or quality subsequent to the purchase of the tins. It may be mentioned that an attempt was made to secure the appearance of section Choudhury of Messrs. Choudhury Brothers, but it failed because he could not be traced at the address given in the cash memo. Section 16(1) (a) (i) of the Act, amongst other things, pro vides that if any person, whether by himself or by any person on his behalf stores or sells any article of food in contravention of any provisions of the Act or of the rules made thereunder he shall 'be punishable for the first offence with imprisonment for a term which may extend to one year and/or with fine which may extend to Rs. 2000 or both. Section 2(i) defines the word "adulterated". According to the definition an article of food shall be deemed to be adulterated in various circumstances, one of which is where the quality or purity of the article falls below the pres cribed standard. In the Act "prescribed" means prescribed by the rules. Rule 5 of the Rules framed by the Central Government under section 23(1) of the Act read with section 4(2) thereof runs thus "Standards of quality of the various articles of food specified in Appendix B to these rules as defined in that appendix. " 818 The definition of standard of quality for condensed milk is give in A. 1 1.07 of Appendix B and runs thus : "Condensed milk means milk which has been con centrated from full cream milk by removal of part of its water with or without the addition of sugar, and includes the article commonly known as 'evaporated milk ' but does not include the article commonly known as 'dried milk ' or 'milk powder '. It shall be free from preservatives other than sugar and contain at least 31 per cent of milk solids of which at least 9 per cent shall be fat. " As already stated, the Public Analyst found that the fat content of the condensed milk was only 3.4% whereas the minimum prescribed in the Appendix is 9%. It is, therefore, clear that the condensed milk stored by the appellants for sale was adulterated and, therefore, there was a breach of the provisions of section 16(1)(a) (i) of the Act. In view of the provisions of section 19(1) it was not open to the appellants to contend that they were ignorant of the nature, substance and quality of the condensed milk sold by them. Subsection (2) of section 19, however, furnishes a defence to a vendor ignorant of the nature, substance and quality of food sold by him provided he satisfies the requirements of that provision. Omitting the second proviso thereto, which is not relevant in the present case, sub section (2) of section 19 reads thus : " (2) A vendor shall not be deemed to have committed an offence if he proves (i) that the article of food was purchased by him as the same in nature, substance and quality as that demanded by the purchaser and with a written warranty in the prescribed form, if any, to the effect that it was of such nature, substance and quality; (ii) that he had no reason to believe at the time when he sold it that the food was not of such nature, substance and quality; and (iii)that he sold it in the same state as he purchased it : Provided that such a defence shall be open to the vendor only if he has submitted to the food inspector or the local authority a copy of the warranty with a written notice stating that he intends to rely on it and 819 specifying the name and address of the person from whom he received it, and has also sent a like notice of his intention to that person. " The aforesaid defence was available to the appellants provided that they showed, in the first place, that what was stored by them for sale to purchasers demanding condensed milk was in fact milk which had been concentrated from full cream milk so as to conform to the standard of quality given in A. 1 1.07 of Appendix B. For, it would be milk which satisfies the standard prescribed therein which can be regarded as 'condensed milk ' under the Act. Upon analysis, however, it was found that the so called condensed milk contained in the samples taken by the Food Inspector from the appellants was far inferior to that prescribed for "condensed milk". It could, therefore, not be regarded as "the same in nature, substance and quality as that demanded by the purchaser". Nor again, had the appellant obtained a warranty in the prescribed form. Rule 12 A provides that every trader selling an article of food to a vendor shall deliver to the vendor a warranty in form 6 A, if required to do so by the vendor. No such warranty was demanded by the appellants, nor given by Messrs. section Chaudhury Brothers. No doubt, under the proviso to the aforesaid sub rule no warranty in the prescribed form is necessary if the label on the article of food or cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. Mr. Das Gupta for the appellants, says that the labels on the tins satisfy the requirements of the proviso and faintly suggested that the cash memo also satisfies the conditions. The contents of the label upon which reliance is placed by him are as follows : " 'Comela ' Full Cream sweetened condensed milk made on formula of Holland Product. 'Comela Brand ' 'The contents of the tin are scientifically preserved, pure and produced from healthy Cow 's milk. Comela full cream condensed milk easily digestable and are ideal food for babies. Special care is taken to maintain freshness Prepared by Kwality Diary. " This label contains no warranty of the kind referred to in the proviso. Moreover, it is not even in the form given for a label 820 prescribed for "Sweetened condensed milk". Under r. 42 B(b) the label prescribed is as follows CONDENSED FULL CREAM MILK (Sweetened) This tin contains the equivalent of . litres of milk with sugar added. It may be that the inscription on the prescribed label "This tin contains an equivalent of. . litres of milk with sugar added" was meant to serve the purpose of a warranty though it is couched in different language. For, it may be possible to ascertain by reference to standard tables the quantity of milk solids and fat from the quantity of milk condensed and from the quantity of condensed milk contained in the tin. It would not be possible even to do this on the basis of the particulars given on the labels borne on the tins which were taken as samples by the Food Inspector from the appellants. Mr. Das Gupta strongly relied upon the words "Full Cream" and said that where condensed milk is said to have been obtained from full cream the requirements of law must be deemed to have been satisfied. For one thing "Full cream" has nowhere been defined in the Act or the rules. Moreover, without knowing the quantity of "Full cream" which was condensed in the milk contained in each tin it is impossible even to calculate the quantity of milk solids and fat in each tin. The label, therefore, is of little assistance to the appellants. Moreover, when a vendor accepts from the trader tins purported to be of condensed milk bearing a label of this kind he cannot be said to have "had no reason to believe" that it was not condensed milk of the prescribed nature, substance and quality. It may be that the appellants sold them in the same state as they purchased them. But this fact is by itself not sufficient to absolve them. As for the so called cash memo it is sufficient to point out that all that it specifies is : Quantity Description Rate Per Amount 1 C/C Comela Milk C 70/ Case Rs. 70 00 There is not a whisper of any warranty on it. In the circumstances, therefore, the High Court was right in setting aside the acquittal of the appellants and convicting them of the offence under section 1 6 (1) (a) of the Act and sentencing them to pay fine of Rs. 2,000 each. The appeal is without merit and is dismissed. 821 Bachawat, J. The defence under section 19(2) of the cannot succeed, as the appellants failed to prove that they purchased the articles of food with a written warranty in the prescribed form. The label on the tin container gave a description of the article of food, but it did not give a warranty certifying that the food is the same in nature, substance and quality as demanded by the vendor. In the absence of such a warranty, the appellants have failed to establish the defence under section 19 (2) read with R. 12 (a) and Form VI A. Had there been such a written warranty on the label, the appellants would have established the defence. I agree that the appeal be dismissed. Appeal dismissed.

The appellant company was assessed to tax in the assessment years 1948 49, to 1953 54, in respect of its profits, and was allowed rebate on the undistributed profits. It was resolved to voluntarily wind up the company with effect from October 1, 1957. The liquidator, during the years 1957 to 1959 distributed, from time to time, the accumulated profits to the shareholders and also issued income tax refund certificates. The Income tax Officer, under section 35(10) of the Income Tax Act, 1922, withdrew the rebate granted in respect of each of the assessment years 1948 49 to 1953 54 and demanded payment of tax. The company applied for a writ quashing the order, but the High Court dismissed the petition. In appeal to this Court, the company contended that : (i) Section 35(10) did not authorise the Income tax Officer to bring to tax the amount on which rebate tax was granted in assessment years commencing prior to 1st April 1956, and (ii) the distribution by the liquidator of accumulated profits could not be regarded as declaration of dividend by the company within the meaning of section 35(10). HELD : (i) The power to withdraw rebate was exercisable within 4 years from the end of the financial year in which the amount on which rebate was allowed was availed of by the company for declaring dividends. 1735 B C] Ahmedabad Manufacturing and Calico Printing Co. Ltd. vs S.G. Mehta, [1963] Supp. 2 S.C.R. 92, followed, (ii) Distribution of accumulated profits by the liquidator together with the income tax refund certificates, in the course of voluntary winding up, can be regarded as declaration of dividend, so as to attract the applicability of provisions enabling the withdrawal of rebate and demand for tax. [739 C] On the passing of a resolution for voluntary winding up the company does not stand dissolved and its property does not vest in the liquidator. lit distributing the assets, including accumulated profits, the liquidator acts merely as an agent or administrator for and on behalf of the company. Therefore, distribution by the liquidator is distribution by the company. [736 B C, E] There is nothing in section 35(10) which suggests that the expression dividend was to have a meaning different from the meaning assigned to it by section 2(6A) in the interpretation clause. By the omission of the proviso to section 2(6A)(c) by the Finance Act, 1955, distribution of accumulated profits, whether capitalised or not and without any restriction as to time, was brought within the definition of dividend. The provisions of sections 35(10) and 2(6A)(c) are part of a single scheme to declare distribution of accumulated profits, capitalized or not, as dividends, and 733 to bring the undistributed profits on which rebate was granted to tax, if availed of by the liquidator of the company for distributing dividends. [737 F, H; 738C D] Power under section 35(10) may be exercised if accumulated profits are availed of by the company "for declaring dividends in any year", that is, after following the procedure in article 95 of Table A of the Companies Act, 1913, under which the assessee was registered. But, the distribution made by the liquidator, was a distribution of interim dividend, and, in the matter of distribution of interim dividend, the Companies Act does not set up any special machinery nor does it impose any special condition before power in that behalf may be exercised. [739 A C]

Appeal No. 870 of 1966. Appeal by special leave from the judgment and order dated June 14, 1965 of the Bombay High Court in Special Civil Application No. 371 of 1965. section section Shukla, for the appellant. M. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judg ment of the division bench of the Bombay High Court. The only question for decision is whether the High Court could interfere under articles 226 & 227 of the Constitution with the order of the appellate court in proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called the "Act", when a petition for revision under section 115, Civil procedure Code, against the same order had been previously dismissed by a single Judge of that court. The appellant is the owner of a house in Poona. The res pondent, who was a teacher, was the tenant of a block of four rooms on the first floor of the house. In 1958 he was transferred to another town Wai where he was allotted suitable residential accommodation. His son, however, stayed on in Poona as he was studying there. The appellant filed a suit in the court of Judge, Small Causes, under the provisions of the Act for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable accommodation elsewhere. The position taken up by the respondent was that his son was required to stay on in Poona and for that reason it could not said that the had acquired suitable residence at Wai. Moreover he had gone away from Poona only temporarily and on his return the pre mises would be required for his own use. The trial court held that only a part of the premises which were required by the son should be vacated. It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent. Both sides filed appeals in the court of the District Judge. The Extra Assistant Judge who disposed them of was of the view that the court was not empowered to bifurcate the premises. It was either suitable for the whole family or it was not suitable. But 324 he affirmed the decree on the ground that the order of the trial court was an equitable one. The respondent preferred a petition for revision under section 1 15 of the Code of Civil Procedure before the High Court. A learned Single Judge who heard the petition dismissed it as he was not satisfied that the appellate court had acted in exercise of its jurisdiction illegally or with material irregularity. The respondent moved a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court. Following a decision of a full bench in K. B. Sipahi malani vs Fidahussein Vallibhoy(1) the division bench which heard the writ petition held that in spite of the dismissal of the petition by the learned Single Judge there could be interference under articles 226 and 227 of the Constitution on a proper cast being made out. After going into the merits the bench expressed the view that the respondent had not acquired an alternative suit able residence. The courts below were therefore,. wrong, in coming to the contrary conclusion. As section 13 (I) (1) of the Act had been misconstrued and the error was apparent on the record the orders of the courts below were set aside. Now as is) well known section II 5 of the Civil Procedure Code empowers the High Court to call for the record of any cast which has been decided by any court subordinate to it and in which no appeal lies to it. It can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested on to have acted in the exercise of its jurisdiction legally or with material illegality. The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the orders of the subordinate court has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under article 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the subordinate court has not become merged in that of the High Court that it may be open to party to invoke the extraordinary writ jurisdiction of that court. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a subordinate court in a writ petition when a petition for revision under section 115, C.P.C., against the same order has been dismissed. Such a consideration will also enter into the exercise of discretion in a petition under Aft. 226 or 227, (1) 58 B.L.R. 344, 325 The Bombay High Court in K. B. Sipahimalani 's (1) case made a distinction between an appellate jurisdiction and a revisional jurisdiction. A right of appeal is a vested right and an appeal is a continuation or a rehearing of the suit. A revision, however, is not a continuation or a rehearing of the suit; nor is it obligatory upon the revisional court to interfere with the order even though the order may be improper or illegal. If the revisional court interferes the order of the lower court does not merge in the order passed by a revisional court but the order of the revisional court simply sets aside or modifies the order of the lower court. it was this argument which mainly prevailed before the Bombay bench. It would appear that this Court has taken a view which runs counter to that of the Bombay High Court. Although the case of Madan Lal Rungta vs Secy. to the Government of Orissa(2) was not one which had been decided under section 115 of the Civil Procedure Code but the ratio of that decision is apposite. The State Government of Orissa a rejected the application of the appellant there who had applied for grant of a mineral lease. He made in application for review to the Central Government under Rule 57 of the Mineral Concession Rules which was rejected. He moved the High Court under article 226 of the Constitution which was also dismissed. The appellant came up by special leave to this Court. His main contention was that the Central Government had merely dismissed the review petition and the effective order rejecting his application for the mining lease was that of the State Government. The High Court, thus, had jurisdiction to grant a writ under article 226. This contention was negatived and it was held that the High Court was right in taking the view that it had no jurisdiction to issue a writ as the final order was that of the Central Government which was not within its territorial jurisdiction. The ratio of this decision is that it was the order of the Central Government dismissing the review peti tion which was the final order into which the order of the State Government had merged. It would appear that their lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nath Dey vs Suresh Chandra Dey(3). "There is no definition of appeal in the Code of Civil Procedure, but their Lordship have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term. " (1) 58 B.L.R. 344. (2) [1962] 3 Supp. S.C.R. 906. (3) 591.A.283, 287. L13Sup. CI/69 7 326 Similarly in Raja of Ramnad vs Kamid Rowthen & Ors. (1) a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature. A full bench of the Madras High Court in P. P. P. Chidambara Nadar vs C. P. A. Rama Nadar & Ors. (2) had to decide whether with reference to article 182(2) of the Limitation Act, 1908 the term "appeal" was used in a restrictive sense so as to exclude revision petitions and the expression "appellate court" was to be confined to a court exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law in cluding the decisions of the Privy Council mentioned above the full bench expressed the view that article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that term as used in the Civil Procedure Code. In Secretary of State for India in Council vs British India Steam Navigation Company(3) and order passed by the High Court in exercise of its revisional jurisdiction under section 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning, of section 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General vs Sillem(4) and of Subramania Ayyar, J. in Chappan vs Moidin(5) on the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or, by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial '. A writ of error is a process of common law origin, and it removes nothing for re examination but the law. The former mode is (1)53 I.A. 74. (2) A.I.R. 1937 Mad. (3) 13 C.L.J. 90. (4) ; 327 usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury. Now when the aid of the High Court is invoked on the revi sional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U. J. section Chopra vs State of Bombay(1) the principal of merger was considered with reference to section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that 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 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. In Chandi Prasad Chokhani vs The State of Bihar, (2) it was said that save in exceptional and special circumstances this Court would not exercise its power under article 136 in such a way As to bypass the High Court and ignore the latter '& decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal. Such exercise of ' power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of two courts of competent _jurisdiction. In our opinion the course which was followed by the High Court, in the present case, is certainly one which leads to a conflict of 'decisions of the same court. Even on the assumption that the order of the appellate court had not merged in the order of the single Judge who had dis posed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent bad already chosen the remedy under section 115 of (1) ; (2) ; 328 the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court. The refusal to gray relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions. In the result the appeal is allowed and the judgment of the division bench of the High Court is hereby set aside. The appellant shall be entitled to costs in this Court. Y.P. Appeal allowed.

The respondent was carrying on business in diverse lines as a partner in four different firms. For the assessment years 1955 56 and 1956 57 he declared his share of profits from the four firms and claimed deductions made up of salary and bonus to staff, expenses for maintenance and depreciation of motor car, travelling expenses and interest. The Incometax Officer and the Appellate Assistant Commissioner allowed only the claim for interest as a permissible deduction. The Tribunal set aside the orders and remanded the cases for the two years for an examination of the nature of expenditure claimed to have been incurred by the respondent, as, in its view, deductions admissible under section 10(2) of the Incometax Act, 1922 were allowable in computing the taxable income of the respondent. On the question, whether expenses incurred by the respondent (who was not carrying on any independent business of his own), in earning income from the various firms in which he was a partner, were allowable in law as deductions, the High Court held in favour of the respondent. In appeal to this Court, HELD : Section 23 (5) (a) (ii) of the Income tax Act, 1922 provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner. The share so received by the partner is 'profits and gains of business ' carried on by him and is on that account liable to be computed under section 10. The receipt being business income for the purpose of section 10(1) expenditure necessary for the purpose of earning that income and allowances appropriate under section 10(2) are deductible therefrom in determining the taxable income of the partner. The facts that in computing the total profits of the partnership allowances admissible to the partnership in the computation of its profits and gains were taken into account, in the manner provided by section 10, or that section 16(1)(b) requires that salary, interest, commission or other remuneration payable by the firm besides the share in the balance of profit is to be taken into account, do not imply that in determining the taxable income of the partner, expenditure incurred by the partner in earning the profits, salary, interest. commission or other remuneration is not to be allowed. [862 C.H] Shantikumar Narottam Morarji vs Commissioner of Income tax, Bombay City, , Jitmal Bhuramal vs Commissioner of Incometax, Bihar & Orissa, and Basantlal Gupta vs Commissioner of lncome tax, Madras, , approved. M/s. Iswardas Subhkaran vs Commissioner of Income tax West Bengal, Income tax Reference No. 38 of 1952 dated June 2, 1953, of the Calcutta High Court, disapproved.

Appeal No. 1460 of 1966. Appeal by special leave from the judgment and decree dated April 30, 1965 of the Madhya High Court, Indore Bench in Second Appeal No. 209 of 1962. G. L. Sanghi, P. C. Bhartari, for the appellants. Rameshwar Nath, for respondents Nos. 1 to 4. The Judgment of the Court was delivered by Hegde, J. The only question, that falls for decision in this appeal by special leave is as to the application of section 151, Civil Procedure Code to a remand order falling within section 105(2) of that Code. The facts leading upto the point under consideration may now be stated. The appellant was the Jagirdar of the suit pro perties. One Bhagirath was his tenant. The said Bhagirath died in the year 1947 leaving behind no male issues. His wife had predeceased him. He had two daughters who were living at the time of his death. After his death, defendants Nos. 1 to 5 who are his distant relations took possession of the suit properties and I got the revenue records changed in their names. Thereafter the appellant brought the suit under appeal seeking the following reliefs (1) to declare that he is the owner of the suit properties; (2) to quash the order of the Tehsildar dated November 8, 1949 transferring the khata relating to the suit properties to the names of Defendants 1 to 5; (3) to grant possession of those properties to him and (4) other usual incidental reliefs. The defendants resisted the plaintiff 's claim. They contended inter alia that (1) the civil court had no jurisdiction to entertain ,the suit; (2) the plaintiff had lost right over the suit properties in H view of the Jagir Abolition Act, 1951 which came into force on December 4, 1952 during the pendency of the suit and (3) the 1st defendant being the adopted son of Bhagirath is entitled to 209 the possession of the suit properties. In the suit several issues. were raised. it is not necessary to refer to them in view of the limited scope of this appeal. The trial court dismissed the suit upholding the contention of the defendants on two issues viz. (1) that the civil court had no jurisdiction to entertain the suit and (2) that in view of the Abolition of Jagirs and the vesting of the suit properties in the State, the plaintiff can claim no relief. The first appellate court reversed the findings of the trial court on those issues. It came to the conclusion that the civil court had jurisdiction to entertain the suit. It further held that though in view of the abolition of the jagirs, the suit properties had vested in the State, it was for the State to get itself impleaded if it is interested in this litigation and as the State had not chosen to get itself impleaded, it was open to the plaintiff to press the suit. In view of those conclusions, the appellate court set aside the decree of the trial court and remanded the suit to the trial court for deciding the other issues left undecided. After the remand, the trial court negatived every one of the contentions taken by the defendants and decreed the suit as prayed for. In appeal that decree was confirmed. In second appeal the High Court of Madhya Pradesh agreed with the trial court and the appellate court on the findings given on all issues excepting the issue relating to the effect of abolition of the jagirs on the suit. On that issue, it came to the conclusion that in view of the abolition of jagirs under the Jagir Abolition Act, the plaintiff had lost his title to the suit properties and therefore he could not get a decree for possession of the suit properties. It rejected the contention of the plain tiff that that issue is concluded by the decision of the appellate court made before remand as the same had not been appealed against. It opined that the court had inherent power to consider the correctness of that order. It accordingly allowed the appeal and dismissed the suit. The High Court, in our opinion, erred in holding that the correctness of the remand order was open to review by it. The order in question was made under rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of section 105 (2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent power of courts recognised by section 151, Civil Procedure Code, a court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does ' contain specific provi 210 sions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the court cannot make use of the special provisions of section 151 of the Code where a party had his remedy provided ,elsewhere in the Code and he neglected to avail himself of the, same. Further the power under section 151 of the Code cannot be exercised as an appellate power. We are also of the opinion that the High Court is not right in holding that in view of the abolition of the Jagirs, the plaintiff had lost all rights in the suit properties. It is true that in view of the provisions of the Jagir Abolition Act, the suit properties vested in the State. But it was conceded at the bar that if the plaintiff is proved to have been the owner of the suit properties on the day the Jagir Abolition Act came into force, he is entitled to the com pensation provided in that Act. Therefore the plaintiff is interested in establishing that on the date Jagir Abolition Act came into force, he was the full owner of the suit properties. The facts of this case fall within the rule laid down by this Court in Himatrao vs Jaikishandas and Ors. On the facts of this case the interests of justice would have been better served if the High Court had ordered the impleading of the State of Madhya Pradesh in the appeal before. it and determined the rights of all the parties finally. Hence we set aside the decree of the High Court and remand the case to that Court with a direction that the State of Madhya Pradesh should be impleaded and the rights of all the parties decided in accordance with law. , In the circumstances of the case we make no order as to costs of this appeal. Y.P. Case remanded.

Under section 21 (1) (j) of the Mysore Rent Control Act, 1961 the court may on an application order the recovery of possession of any premises in favour of the landlord, if "the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of enacting a new building in place of the premises sought to be demolished,". The respondent landlord applied under section 21(1)(j) for eviction of the tenants appellants, claiming that the premises were reasonably and bona fide required by him for the immediate purpose of demolishing and erecting of a new building, that the premises were old and were not suitable for continued occupation. The respondent claimed to have obtained the necessary licence and to have made all preparations for demolishing the existing., building and erecting new building. The appellants tenants contested the claim. The Rent Controller accepted the respondent landlord 's claim and ordered eviction, which in appeal, and further revision to the High Court was upheld. In appeal to this Court for the appellant tenant, it was contended that unless the landlord was able to establish that the condition of the building was such that it required immediate demolition and reconstruction, no eviction of the tenant could be ordered under section 21 (1) (j). Rejecting this contention and dismissing the appeal, HELD : The requirement contemplated under clause (j) of the proviso to sub section (1) is that of the landlord and it does not have any reference to the condition of the building as such. What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and such demolition is for the purpose of erecting a new building in the place of the old one. No doubt, whether the landlord 's requirement is reasonable and bona fide has to be judged in the light of the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard. [737 G, H] In considering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. [738 D] Neta Ram vs Jiwan Lal, [1962] Supp. 2 S.C.R. 623, referred to. Mehsin Bhai vs Hale & Company, (1964) II M.L.J. 147, contra observation disapproved.

Civil Appeals Nos. 171, 171A 171D of 1969. From the Judgment and decree dated 10 12 1963 of the Allahabad High Court in First Appeal No. 511/55. Lal Narain Sinha, P. P. Singh, J. B. Dadachanji, K. John and J. Sinha for the Appellants. G. N. Dikshit and M. V. Goswami for the Respondent. The Judgment of the Court was delivered by JASWANT SINGH, J. These five appeals by certificates under Article 133(1)(c) of the Constitution granted by the High Court of Judicature at Allahabad shall be disposed of by this judgment as they raise a common question relating to the interpretation of section 39(1) (e) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act No. 1 of 1951) (hereinafter referred to as 'the Act '). As the facts giving rise to these appeals are identical, it shall suffice to narrate the facts of the case culminating in Appeal No. 171 of 1969. The predecessor in interest of the appellants, the late Jodha Mal, owned several private forests in the State of U.P. including the one consisting of three compartments comprising a total area of 484.57 acres in village Rajiwala Attick Farm, Mahal Sansar in District Dehradun. On the vesting of the said forest in the State of U.P. by virtue of section 4 of the Act, the question arose about the assessment and payment of compensation therefor to the heirs of the intermediary. On service of draft compensation roll prepared under section 40 of the Act, each one of the appellants, filed separate objections in regard thereto before the Compensation officer, Dehradun, who disposed of the same by his order dated August 31, 1953 holding that the average annual income for the said forest which could be taken into consideration while computing its compensation was Rs. 4,551/ as disclosed by the appellants ' accounts for a period of 22 years preceding the date of vesting in terms of clause (i) of section 39(1)(e) of the Act and Rs. 450/ was its annual yield on the date of vesting as per terms of clause (ii) of section 39(1) (e) of the Act. Dividing the sum total of these two figures by 2, the Compensation officer held that Rs. 5,001/ was the annual income from the aforesaid forest to the intermediaries. Aggrieved by the computation of compensation, the respondent preferred an appeal to the High Court of Judicature at Allahabad under section SO of the Act. The appellant 's also filed cross appeals claiming that the average annual income as assessed by the Compensation officer was too low. Being of the view that while com 30 puting the average annual income from the forest, both the results arrived at by working both the clauses of section 39(1)(e) of the Act had to be looked into and considered and it had to be objectively decided as to what the average annual income from the forest would be, the High Court held that Rs. 2,000/ and not Rs. 450/ was the income under clause (ii) of section 39(1)(e) of the Act. On the aforesaid basis, the High Court came to the conclusion that Rs. 3,000/ and not Rs. 5,001/ was the average annual income on the basis of which gross assets had to be calculated in computation of compensation in respect of the aforesaid forest. The High Court by its judgment and decree dated December 10, 1963, disposed of the appeal and the cross appeal in the manner indicated above. Aggrieved by the judgment and decree of the High Court, the appellants have come up in appeal to this Court. The respondent has also filed objections with regard to the item of Rs. 2,000/ . Mr. Lalnarayan Sinha appearing on behalf of the appellants has raised a very short point. Assailing the method adopted by the High Court in computing the compensation, he has urged that the High Court has missed the real purport and meaning of the provisions relating to the computation of compensation and that the relevant portion of section 39 of the Act did not authorise the High Court to calculate the compensation by taking a mean of the aforesaid two figures. He has further urged that having worked out the average annual income according to the method indicated in clause (i) of section 39(1)(e) of the Act, the High Court was not required to work out the annual yield of the forest on the date of vesting. We regret, we cannot accede to this contention. Section 39(1) (e) of the Act provides as follows: "39.Gross assets of a mahal. (1) Gross assets as respects a mahal shall be the aggregate gross income of the land or estate comprised in the mahal and such income shall comprise . . . (e)average annual income from forests, which shall be computed (i) on the basis of the income for a period of twenty to forty agricultural years immediately preceding the date of vesting as the Compensation officer may consider reasonable, and (ii) on the appraisement of the annual yield of the forest on the date of vesting. " 31 It will be noticed that the opening words of the above quoted section which is couched in very emphatic terms govern not only clause (i) but also clause (ii ) of section 39 ( 1 ) (e) of the Act. Consequently neither of the two factors mentioned in section 39(1)(e) of the Act can be ignored while computing the average annual income. Now so far as the connotation of the word 'average ' is concerned, it does not admit of any doubt. According to shorter oxford English Dictionary, the word 'average ' means arithmetical mean to estimate by dividing the aggregate of a series by the number of its units '. The same is the connotation of the word 'average ' according to the Random House Dictionary of the English Language where the total receipt has been stated to mean the total receipt from sales divided by the number of the units sold. On a true construction of section 39(1)(e) of the, Act, it appears to us that the legislature cast an obligation on the Compensation officer to work out the compensation by computing the average annual income giving due weight to both the factors mentioned in the aforesaid clauses (i) and (ii). Accordingly, we are of the view that the High Court was correct in computing the average income by adding up to two figures i.e. Of Rs. 4,551/ and Rs. 2,000/ and arriving at a mean on that basis. The position is also not res integra as in Smt. Durgi Devi & Ors. vs State of U.P.(l) this Court held that the average annual income has to be arrived at by taking into consideration not only the income referred to in clause (i) of section 39(1) (e) but also the estimated annual yield of the forest on the date of vesting. The following observations made therein are apposite. "A plain reading of clause (e) of section 39(1) shows that its sub clauses (i) and (ii) do not provide for two alter native methods of calculating the average annual income of the forest. The conjunction 'and ' at the end of sub clause (i) cannot be read as "or". It conjoins the two sub clauses, and in effect, read in the context of "shall" in the opening part of clause (e), mandates the compensation officer to take both the factors into consideration in assessing the average annual income from the forest. The reason why the legislature has made compliance with the requirement of this sub clause (ii), also, obligatory, appears to be to ensure that the compensation assessed has a reasonable nexus and proportion to the actual and potential value of the forest as on the date of vesting. If a forest has been repeatedly, wholly and indiscriminately exploited within forty years or less imme (1) ; 3 S.C.C. 101. 32 diately before the vesting, its actual and potential value as a forest on the date of the vesting might be far less than the one calculated on the basis of its average annual income of the preceding 20 to 40 years as the case may be. In such a case, average annual income calculated merely on the basis of the income for a period of 20 to 40 years preceding the vesting, may cause fortuitous inflation in the assessment of compensation. Conversely, if a forest has been very little exploited in the preceding forty years and is well preserved and well developed on the date of vesting than calculation of its average annual income on the basis of sub clause (i) alone, without taking into account its potential yield on the date of the vesting, will make the compensation assessed wholly illusory, having no relation whatever to the value of the forests as at the date of vesting. Entry of the appraised annual yield of the forest on the date of vesting, into computation under clause (e), operates as a counterpoise against fortuitous inflation or deflation in the assessment. " Again in Ganga Devi vs State of Uttar Pradesh(1) it was pointed out by this Court that in computing the average annual income under clause (e) of section 39(1), the compensation officer has to refer to both these sub clauses (i) and (ii). He cannot adopt either of these sub clauses. It was also pointed out that under sub clause (ii) the annual yield on the date of vesting is to be appraised by taking into consideration, inter alia the number and age of the trees, the area under forest and the produce. For the foregoing reasons, we find no merit in these appeals which are dismissed with costs. S.R. Appeals dismissed.

The appellant who was working as Joint Director, Family Planning in the Directorate General of the All India Radio was prematurely retired from ser vice. She made a representation, but it was rejected. In her writ petition under article 226 of the Constitution she alleged that she had a long and clean record of nearly three decades but that baseless allegations had been made against her, because of malicious vendetta of the then Chairman of the Central Board of Film Censors. She also alleged that the impugned order was arbitrary and capricious and that the retiring authority had not applied its mind to the record of her case. The writ petition was dismissed in limine. On the appeal, the first respondent conceded that there was nothing on the record to justify the impugned order, and that the Government was not in a position to support that unfair order. Allowing the appeal, ^ HELD: (1) There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to influence tho Central Government m making the impugned order. It was not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to malice in fact. [205E] (2) Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. [205G] . Shearer & Anr. vs Shields, at p. 813 referred to. (3) It was not necessary to examine the question of malice in law as it was trite law that if a discretionary power had been exercised for an unauthorised purpose, it was generally immaterial whether its repository was acting in good faith or in bad faith. [205H 206A] 203 Pilling vs Abergele Urban District Council. [1950] 1 K.B. 636: referred to. (4) The principle which is applicable in such cases is that laid down by Lord Esher M.R. in at p. 375, and followed in 3. [206C D] (5) When a public body is prompted by a mistaken belief in the existence of a non existing fact or circumstance it will be an error of fact. That is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith. [206E] (6) When the respondent conceded that there was nothing on record to justify the impugned order, that order must be set aside for it amounts to an abuse of the power which was vested in the authority concerned as it had admitted the influence of extraneous matter. [206H 207A] (7) It will be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the "public interest", to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. [206F] (8) An administrative order which is based on reasons of fact which do not exist must be held to be infected with abuse of power. [206G]

ION: Civil Appeal No.1014 of 1988. From the Judgment and Order dated 25.1.1988 of the Madras High Court in C.P.P. No. 215 of 1986. Mrs. Nalini Chidambaram, Ms. Setia Vaidalingam, N. Thiagarajan and Ms. Radha for the Appellant. section Srinivasan for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The question which arises for consideration in this case is whether a landlord who seeks eviction of a tenant from a non residential building (other than a non residential building which is used for keeping a vehicle or adapted for such use) under section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as 'the Act ') is required to prove that he requires the said building for his own use or for the use of any member of his family bona fide in the proceedings instituted before the Controller. The appellant is a partnership firm represented by its partner, 5. Peer Mohammed. The respondent 's brother was carrying on business in hardware in the front portion of the ground floor of the premises bearing No. 157, Kutcheri Road, Mylapore, Madras 4. The appellant purchased the said running business from the brother of the respon dent on 5.7.1974. The said building, however, belonged to the father 389 of the respondent. After purchasing the business, the appellant became a tenant under the father of the respondent by paying an advance of Rs.1,500 and agreeing to pay a rent at the rate of Rs.450 per month for the portion in which it commenced to carry on the business. In the rear portion of the ground floor of the premises one Mrs. Janaki Ammal was residing as a tenant. Mrs. Janaki Ammal vacated the said residential portion in October, 1974. With effect from 5.10.1974 the appellant took the portion vacated by Mrs. Janaki Ammal also on rent from the father of the respondent by paying Rs.525 as advance and agreeing to pay a monthly rent of Rs.175. The rent of this portion was increased subsequently to Rs.315 per month. On 25.11.1980 the appellant received a notice from an advocate, who was acting on behalf of the father of the respondent terminating the tenancy of the appellant in respect of both the portions with effect from 31.12.1980 and requiring the appellant to deliver possession of the two portions of the ground floor of the premises in question to the father of the respondent on the ground that he needed the premises for the occupation of his son. The appellant sent a reply denying the right of the respondent 's father to evict the appellant from the premises. Thereafter it is stated that the ownership of the premises in question was transferred in favour of the respondent by his father. Thereafter the respondent asked the appellant to increase the rent payable for the premises. In order to avoid litigation, the appellant agreed to pay a consolidated amount of Rs.1,000 per month by way of rent for both the portions in the year 1981 and also paid a sum of Rs.7,500 as advance. On 9.6.1982 an agreement was entered into in respect of both the portions specifying that the lease should remain in force till 8.5.1983. After the expiry of the said period, it is stated, the respondent again demanded enhanced rent. On the appellant not complying with the said demand the respondent instituted a petition for eviction of the appellant in the Court of the Controller at Madras under section 10(3)(a)(iii) of the Act on the ground that the premises in question were needed by his wife for carrying on pawn broker business which she was carrying on elsewhere. The appellant resisted the petition. It was inter alia contended by the appellant that the requirement of the wife of the respondent was not bona fide and the petition was liable to be dismissed. After trial, the Controller dismissed the petition holding that the tenancy in question was in respect of both the residential and non residential portions and that the respondent could not seek eviction of the appellant as the major portion of the demised premises was of residential character. Aggrieved by the decision of the Controller the respondent preferred an appeal before the Appellate Authority. The Appellate Authority dismissed the appeal. Thereupon the respon 390 dent preferred a revision petition before the High Court of Madras inCivil Revision Petition No. 215 of 1986. That petition was allowed by the High Court holding that it was not necessary for the respondent to establish that his requirement was bona fide as the question of bona fides of a landlord 's requirement did not arise for consideration at all in case falling under secti10 10(3)(a)(iii) of the Act. It, however, held that the claim of the respondent was bona fide. Accordingly, the High Court allowed the revision petition and directed the appellant to quit and deliver vacant possession of the premises in question to the respondent. This appeal by special leave is filed against the judgment of the High Court of Madras. The crucial question which arises for consideration in this case is whether it is necessary for a landlord, who institutes a petition under section 10(3)(a)(iii) of the Act, to establish that his requirement is bona fide or not. As can be seen from the long title of the Act it was enacted by the State Legislature to amend and consolidate the law relating to the regulation of the letting of residential and non residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Tamil Nadu. Section 10 of the Act provides that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of section 10 or sections 14 to 16 of the Act. The material portion of sub section 3(a) of section 10 of the Act, which is relevant for purposes of this case reads thus: "10(3)(a). A landlord may, subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building. (i) in case it is a residential building, if the landlord required it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned; (ii) in case it is a non residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord required it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own; 391 (iii) in case it is any other non residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non residential building in the city, town or village concerned which is his own; . . . . . . . . (e) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application. " For purposes of sub section (3) of section 10 of the Act the buildings are classified into two categories by the Act, namely, residential buildings and non residential buildings. Sub clause (i) of clause (a) of sub section (3) of section 10 of the Act provides that a landlord may subject to the provisions of clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of a residential building, if the landlord required it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned. Sub clause (ii) of clause (a) of sub section (3) of section 10 of the Act relates to eviction from a non residential building which is used for the purpose of keeping a vehicle or adapted for such use. If the landlord required such a building for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own he can apply for the eviction of the tenant therefrom. Sub clause (iii) of clause (a) of sub section (3) of section 10 of the Act deals with other kinds of non residential buildings. If the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non residential building in the city, town or village concerned which is his own, a landlord may, subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of such a building. It may be stated here that the words 'if the landlord required it for his own use or for the use of any member of his family ' are not to be found in sub clause (iii) of section 10(3)(a) of the Act. Clause (e) of section 10(3) of the Act, however, provides that the Controller shall, if he is 392 satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application. Clause (e) of section 10(3) applies to all cases of eviction falling under section 10(3) of the Act. The decision in this case depends upon the effect of the omission of the words 'if the landlord required it for his own use or for the use of any member of his family ' in sub clause (iii) of section 10(3)(a) of the Act. It is argued on behalf of the appellant that reading sub clause (ii) and (iii) of section 10(3)(a) of the Act together, which relate to the eviction from non residential buildings, the words 'if the landlord required it for his own use or for the use of any member of his family ' which are found in sub clause (ii) of section 10(3)(a) should be read into sub clause (iii) of section 10(3)(a) also and that a landlord should establish in order to succeed in a petition for eviction filed under section 10(3)(a)(iii) of the Act that his requirement or the requirement of a member of his family is bona fide. It is also argued in the alternative that the word 'claim ' in the words 'that the claim of the landlord is bona fide ' in clause (e) of section 10(3) of the Act refers only to the requirement of the landlord and to nothing else. On the other hand it is urged on behalf of the respondent relying upon three decisions of the High Court of Madras in (i) M/s. Mahalakshmi Metal Industries vs K. Suseeladevi, ; (ii) M. Abdul Rahman vs section Sadasivam, and (iii) A. Khan Mohammed vs P. Narayanan Nambiar & Others, 99 Law Weekly 966 that there was no need for a landlord to establish the bona fides of his requirement or the requirement of a member of his family when a petition is filed under section 10(3)(a)(iii) of the Act and it is enough if his claim is proved to be bona fide. The High Court has upheld the said plea of the respondent relying upon the said three decisions. The correctness of these three decisions is questioned before us by the appellant. We have already noticed that the object of the Act was to prevent unreasonable evictions of tenants from buildings. The Act is an ameliorating piece of legislation. Similar acts are in force in almost all the States in India. The provision in question has to be construed against this background. The Act has been in force from 1960. In Moti Ram vs Suraj Bhan & Other, ; this Court was required to construe section 13(3)(a)(iii) of the East Punjab Urban Rent Restriction Act, 1949 which at the relevant time provided that a landlord might apply to the Controller for directing a tenant to 393 put the landlord in possession of the building in question if he required it for the re construction of that building or for its replacement by another building or for the erection of other buildings. In that case the Rent Controller and the Appellate Authority had rejected the claim of the landlord on the ground that the landlord had not established that the premises in question were required by him bona fide. The High Court while accepting that the requirement in question must be shown to be bona fide held that on the evidence the findings of the Courts below that the landlord 's requirement was not bona fide were not correct. The High Court accordingly directed the eviction of the tenant in question. This Court while affirming the decision of the High Court held that the landlord had, in fact, made out that he required the premises bona fide for purposes of re construction. Thus it is seen that in the context of a law enacted for preventing unreasonable evictions this Court read into a ground on which a landlord could seek the eviction of his tenant that the landlord should establish that his requirement was bona fide. A mere desire on the part of the landlord to re construct a building was not sufficient to evict a tenant from the premises. He had to establish that he needed the premises bona fide for re construction it. In a later case, i.e., Neta Ram vs Jiwan Lal, [1962] 2 Supp. S.C.R. 623 which arose under the provisions of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, one of the grounds on which the landlord sought the eviction of the tenants in occupation of the premises involved in that case was that the premises were in a state of disrepair and were dilapidated and, therefore, the landlord wished to rebuild on the premises after dismantling the structure. On the said issue the Rent Controller held that in deciding whether the tenant should be ordered to hand over the possession to the landlord the Courts must have regard to the bona fide requirement of the landlord which meant that the desire to rebuild the premises should be honestly held by the landlord but that the condition of the building also played an important part in determining whether the landlord had the intention genuinely and the landlord was not using the said excuse as a device to get rid of the tenants. In that connection the Rent Controller observed that the state of the building, the means of the landlord and the possibility of the better yield by way of rent should be kept in mind. The Controller, holding that the claim of the landlord was not bona fide, decided the said issue against him. On appeal the Appellate Authority held that the shops and chobaras were in good condition and that the landlord was not, in good faith, wanting to replace the building, when he had no means to build it. The High Court, however, allowed the revision petition filed before it holding that upon the evidence on record it had been established 394 beyond doubt that the landlord genuinely and bona fide required the premises for re building. On appeal by special leave to this Court, this Court observed that the very purpose of the Rent Restriction Act would be defeated if the landlords were to come forward and to get tenants turned out, on the bare plea that they wanted to reconstruct the house without first establishing, that the plea was bona fide with regard to all circumstances, viz. that the houses needed reconstruction or that they had means to reconstruct them. Accordingly, the judgment of the High Court was reversed and the petitions for eviction were dismissed. Following the observations made in the above decisions in Nathella Sampathu Chetty vs Sha Vajingjee Bapulal, a Division Bench of the High Court of Madras construed section 10(3)(a)(iii) of the Act thus: "Section 10 of the Madras Buildings (Lease and Rent Control) Act, 1960, provides for eviction of tenants in certain circumstances. Sub section 3(a)(iii) of the section allows a landlord to apply to the Controller for an order directing a tenant to put him in possession of the building if the landlord is not occupying for purposes of business which he is carrying on, a non residential building in the city, town or village concerned which is his own. The second proviso to this clause is to the effect that where a landlord has already obtained possession of a building under this provision, he shall not be entitled to apply again for possession of another non residential building of his own. If the conditions of these provisions are satisfied, the Controller may make an order as asked for by the landlord provided he is further satisfied that the claim of the landlord is bona fide. (underlining by us) In the Madras District Central Co operative Bank Limited, Mylapore Branch, Madras 4 vs A. Venkatesh, 99 Law weekly 714 a single Judge of the High Court disagreed with the views expressed by another single Judge in Abdul Rahman 's case (supra) and observed thus: "The question now is whether an order directing the tenant to put the landlord in possession should be made. It is pointed out by the learned counsel for the respondent landlord following a ruling of this Court in Abdul Rahman vs section Sadasivam, that there is no jurisdiction for the Rent Controller to go into the question of bona fide requirement 395 in a claim under section 10(3)(a)(iii) of the Act. Ramanujam, J. took the view that a distinction has to be made between the two sections, section 10(3)(a)(i) and section 10(3)(a)(iii) in view of the word 'require ', occurring in section 10(3)(a)(i) and in the absence of that word, in section 10(3)(a)(iii) in other words, what the learned Judge points out is that the Rent Controller has no jurisdiction to go into the question whether the requirement of the landlord is bona fide, as the Rent Controller has to pass an order of eviction in case the landlord is not occupying for the purpose of business which he is carrying on, any non residential building in the city which is his own. The learned Judge further pointed out that when the provisions of section 10(3)(a)(i) and section 10(3)(a)(iii) use different expressions, it should be taken that the Legislature intended these provisions to have different operations. With respect to the learned Judge, I may point out that the mere absence of the word 'require ' in section 10(3)(a)(iii) would not necessarily lead to the inference that the Legislature did not intend that the Rent Controller should go into the question of bona fides of the requirement of the landlord in respect of the requirement of a non residential premises under section 10(3)(a)(iii) of the Act. My reasons for holding so are as follows: section 10 enumerates certain grounds for the eviction of the tenant. In other words eviction under the Rent Control Act can be effected only on the grounds mentioned in section 10. The landlord may have a right to evict the tenant under the general law. section 10(3)(a) says that the landlord may, subject to the provisions of Cl. (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the buildings. section 10(3)(a)(i) deals with residential buildings. section 10(3)(a)(ii) deals with non residential buildings used for purpose of keeping vehicles. section 10(3)(a)(iii) is in respect of non residential buildings. section 10(3)(b) gives a right to religious, charitable, educational or other public institutions, to institute proceedings before the Controller if the institution requires the building. section 10(3)(c) is for additional accommodation. section 10(3)(d) speaks of tenancy for specified period agreed between the landlord and the tenant and it prohibits the landlord from applying, before the expiry of such period. Now after these sections, section 10(3)(e) runs thus: 'The Controller shall, if he is satisfied that the claim 396 of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application. ' I find in the judgment of Ramanujam, J. this section 10(3)(e) has not been adverted to. section 10(3)(e) applies to Ss. 10(3)(a)(i), 10(3)(a)(ii) and 10(3)(a)(iii) and also to Ss. 10(3)(b) and 10(3)(c). If the Legislature intended that the provisions of section 10(3)(a)(i) and section 10(3)(a)(iii) to have different operations, the Legislature would not have stated in section 10(3)(e) that the Controller should be satisfied that the claim of the landlord is bona fide, before he makes an order directing the tenant to put the landlord in possession, and the further words 'if the Controller is not so satisfied, he shall make an order rejecting the application ' very clearly show that the Controller should, before passing an order for eviction, be satisfied with the bona fide of the claim, or else he should dismiss it. " The main ground on which the learned Judge who decided the above case disagreed with the decision in Abdul Rahman 's case (supra) is that in Abdul Rahman 's case (supra) section 10(3)(e) of the Act, which applied to all the three sub clauses, namely (i), (ii) and (iii) in section 10(3)(a) of the Act had not been adverted to. The learned Judge also held that the mere absence of the word 'require ' in section 10(3)(a)(iii) of the Act did not necessarily lead to the inference that the Legislature did not intend that the Controller should not go into the question of bona fides of the requirement of the landlord in a petition for eviction filed under that provision. Another learned Judge of the Madras High Court has taken the same view in M/s. Thilagaraj Match Works, through its partner section Chidambaram vs C. Sundaresan, [1985] 1 Mad. Law J. 106. It is observed in that case thus: "In the present case, the Appellate Authority has not adverted to these features at all and in one place he observes that the bona fide of the claim of the landlord is extraneous and it should not be tested too severely. This exposes his wrong approach to the question of bona fide which is a relevant one. The very ingredient of section 10(3)(e) of the Act requires that the question of bona fide has got to be tested and it has got a due place while 397 adjudicating a petition for eviction by the landlord under the concerned provisions. It is not the desire of the landlord, but there must be an element of need for the landlord before it could be stated that he requires the premises for his own occupation. The features referred to above, cannot be eschewed as irrelevant, for after all bona fide will have to be proved in an ordinary manner like any other fact in issue, and the entire gamut of facts and circumstances has to be adverted to on this question. As already stated, I am not expressing any opinion over these features on merits, and it is for the Appellate Authority to advert to them and adjudicate upon the question afresh one way or the other. The discussions above oblige me to interfere in revision and accordingly the revision is allowed and the matter stands remitted to the Appellate Authority for him to consider it afresh taking note of all the relevant features and factors of the case on the question of bona fides, and pass appropriate orders. Both the counsel represent that for the purpose of comprehensive adjudication of the matter, further evidence has to be adduced. I take note of the request of both the counsel and I direct that the Appellate Authority will permit the parties to place further evidence and he will decide the matter afresh after such evidence is placed, the Appellate Authority will do well to dispose of the matter expeditiously and in any event within a period of three months from the date of receipt of the copy of this order." In P. Thanneermalai Chettiar vs S.J. Dhanraj, another learned Judge of the High Court of Madras has construed section 10(3)(e) of the Act thus: "It is not disputed that section 10(3)(e) of Act 18 of 1960 is applicable to the case of residential building as well as non residential building and it is provided therein that if the Controller is satisfied that the claim of the landlord is bona fide, he shall make an order directing the tenant to put the landlord in possession of the building; otherwise, he has to reject the application. In the instant case, considering the various circumstances and also the fact that the petitioner was residing in a house of his own at Devakottai where he has got vast extent of properties and was carrying on business along with other members of his family, the 398 claim of the petitioner that he required the premises for his own use and occupation is not proved and in any event there is no bona fide in the same" The main ground on which the learned Judge who decided Abdul Rahman 's case (supra) held that it was not necessary to establish the bona fide equipment of the landlord when he made an application for eviction under section 13(3)(a)(iii) of the Act was that, the word 'require ' was not to be found in section 10(3)(a)(iii) of the Act. We are of the view that having regard to the pattern in which clause (a) of sub section (3) of section 10 of the Act is enacted and also the context, the words 'if the landlord required it for his own use or for the use of his any member of the family ' which are found in sub clause (ii) of section 10(3)(a) of the Act have to be read also into sub clause (iii) of section 10(3)(a) of the Act. Sub clause (ii) and (iii) both deal with the non residential buildings. They could have been enacted as one sub clause by adding a conjunction 'and ' between the said two sub clause, in which event the clause would have read thus: 'in case it is a non residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord required it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own; and in case it is any other non residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non residential building in the city, town or village concerned which is his own. ' If the two sub clauses are not so read, it would lead to an absurd result. The non residential building referred to in sub clause (ii) is a building which is used for the purpose of keeping a vehicle or adapted for such use and all other non residential buildings fall under sub clause (iii). The State Legislature cannot be attributed with the intention that it required a more stringent proof by insisting upon proof of bona fides of his requirement or need also when a landlord is seeking eviction of a tenant from a garage than in the case of a non residential building which is occupied by large commercial house for carrying on business. The learned counsel for the respondent was not able to explain as to why the State Legislature gave greater protection to tenants occupying premises used for keeping vehicles or adapted for such use than to tenants occupying other types of non residential buildings. It is no doubt true that the Court while construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is 399 enacted the court should construe it in a harmoneous way to make it meaningful. In Seaford Court Estates Ltd. vs Asher, [1949] 2 All. E.R. 155 at 164. Lord Denning L.J. said: "When a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament . . and then he must supplement the written word so as to give 'force and life ' to the intention of the legislature . . A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they should have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven but he can and should iron out the creases. " This rule of construction is quoted with approval by this Court in M. Pentiah and Ors. vs Muddala Veeramallappa and Ors., ; at 314 and it is also referred to by Beg, C.J. in Bangalore Water Supply & Sewerage Board, etc. vs R. Rajappa & Ors., ; In the present case by insisting on the proof of the bona fides of the requirement of the landlord, the Court is not doing any violence to the statute nor embarking upon any legislative action. The Court is only construing the words of the statute in a reasonable way having regard to the context. We are of the view that by merely proving that the premises in question is a non residential building and that the landlord or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which section 10(3)(a)(iii) appears get a tenant evicted. He must show in view of clause (e) of section 10(3) that his claim is bona fide. The word 'claim ' means "a demand for something as due" or "to seek or ask or for on the ground of right" etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on 400 the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord 's requirement or need. The word 'claim ' in clause (e) of section 10(3) of the Act should, therefore, he construed as 'the requirement ' of the landlord or his deservedness. 'Deserve ' means 'to have a rightful claim ' or 'a just claim '. Since clause (e) of section 10(3) of the Act is also applicable to a petition filed under sub clause (iii) of section 10(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in section 10(3)(a)(iii) of the Act. Take a case where a landlord for some oblique reason wishes to get rid of his tenant from a non residential building of the category mentioned in section 10(3)(a)(iii) and to achieve his aim fakes to start money lending business (for which indeed no specified separate portion in a building may be needed) in a building not belonging to him and to create evidence even actually lends money to some of his friends or relatives and a week thereafter applies for eviction of the tenant on the ground that he is carrying on business and has no non residential building of his own in his occupation in the city, town or village concerned. Apparently, the conditions prescribed in the aforesaid sub clause (iii) are fulfilled. If the requirement of "claim" being "bona fide" as contained in section 10(3)(e) is construed to mean that genuineness of the need of the landlord for the non residential building is not to be considered and the circumstances that the landlord on the date of making the application is factually carrying on business and has no non residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of no non residential building will be secure. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as it would be against the very object of the Act itself. The need of the landlord should be genuine. That is the object of enacting clause (e) of section 10(3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should bona fide need them for his own use and occupation or for occupation by any of the members of his family as held by this Court in Phiroze Bamanji Desai vs Chandrakant M. Patel & Ors., ; and Mattulal vs Radhe Lal, ; The learned Judge who decided the case out of which this appeal arises was, therefore, in error in holding that the landlord need not prove that his requirement was bona fide but that his claim was bona fide as provided in clause (e) of section 10(3) of the 401 Act. The learned Judge has made a distinction between `requirement ' and `claim ' in the present case without there being a difference. In the circumstances we are of the view that M/s. Mahalakshmi 's case (supra), M. Abdul Rahman 's case (supra) and A. Khan Mohammed 's case (supra) have been wrongly decided. They are liable to be overruled. We accordingly overrule them. We hold that a landlord seeking eviction of a tenant from a non residential premises under section 10(3)(a)(iii) of the Act in order to succeed in his petition should establish that he bona fide requires the premises in addition to proving the other ingredients referred to therein. The judgment of the High Court which has proceeded on a wrong basis has, therefore, to be set aside. Since the High Court while allowing the revision petition has approached the case from a wrong angle, it is necessary to direct the High Court to decide it afresh in the light of what we have stated above. We, therefore, set aside the judgment of the High Court and remand it to the High Court again to decide it afresh. If the High Court finds that the case should be remanded to the Trial Court to enable any of the parties to lead evidence on the question of the bona fide requirement of the landlord it may remit the case to the Trial Court. The appeal is accordingly allowed. There shall be no order as to costs. S.L. Appeal allowed.

% The respondent 's brother was carrying on his business in the front portion of the ground floor of the premises in question, which belonged to the father of the respondent. The appellant purchased the said running business from the brother of the respondent. After purchasing the business, the appellant became a tenant under the father of the respondent. In the rear portion of the ground floor of the premises, one Mrs. Janaki Ammal was residing as a tenant. Mrs. Janaki Ammal vacated the said residential portion and the appellant took that portion also on rent from the father of the respondent. The ownership of the premises in question was transferred in favour of the respondent by his father. On 9.6.1982, an agreement was entered into in respect of both the portions specifying that the lease should remain in force till 8.5.1983. After the expiry of the said period, the respondent instituted a petition for eviction of the appellant in the Court of the Controller under section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, on the ground that the premises in question were needed by his wife for carrying on her business which she was carrying on somewhere else. The appellant contended inter alia that the requirement of the wife of the respondent was not bona fide. The Controller dismissed the petition, holding that the tenancy in question was in respect of both the residential and non residential portions and the respondents could not seek eviction of the appellant as the major portion of the demised premises was of residential character. Aggrieved by the decision of the Controller, the respondent preferred an appeal before the Appellate Authority. The Appellate Authority dismissed the appeal. The respondent filed a revision petition before the High Court. The High Court allowed the revision petition holding that it was not necessary for the respondent to establish that his requirement was bona fide as the question of the bona fides of a landlord 's requirement did not 385 arise in a case under section 10 (3)(a)(iii) of the Act. It, however, held the claim of the respondent to be bona fide. Aggrieved by the decision of the High Court, the appellant filed this appeal before this Court for relief by special leave. Allowing the appeal, the Court, ^ HELD: The crucial question which arose for consideration in this case was whether a landlord, who sought eviction of a tenant from a non residential building (other than a non residential building used for keeping a vehicle or adapted for such use) under section 10 (3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (the Act) was required to prove that he required the said building for his own use or for the use of any member of his family bona fide. [390C D] The Act was enacted to amend and consolidate the law relating to the regulation of the letting of residential and non residential buildings and the control of the rents of such buildings and the prevention of unreasonable eviction of the tenants therefrom in the State of Tamil Nadu. The Act is an ameliorating piece of legislation. Similar Acts are in force in almost all the States in India. The provision in question section 10(3)(a)(iii) has to be examined against this background. [390D;392G] Having regard to the pattern in which clause (a) of sub section (3) of section 10 of the Act is enacted and also the context, the words "if the landlord required it for his own use or for the use of any member of his family", found in sub clause (ii) of section 10 (3)(a) of the Act, have to be read also into sub clause (iii) of section 10 (3)(a) of the Act. Subclauses (ii) and (iii) both deal with the non residential buildings. They could have been enacted as one sub clause by adding a conjunction 'and ' between the said two sub clauses, in which event the clause would have read thus: 'in case it is a non residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord required it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own, and in case it is any other non residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non residential building in the city, town or village concerned which is his own. ' If the two sub clauses are not so read, it would lead to an absurd result. The non residential building referred to in sub clause (ii) is a building used for the purpose of keeping a vehicle or adapted for such use, and all other non 386 residential buildings fall under sub clause (iii). The State legislature cannot be attributed with the intention that it required a more stringent proof by insisting upon proof of bona fides of his requirement or need also when a landlord is seeking eviction of a tenant from a garage than in the case of a non residential building occupied by a large commercial house for carrying on business. It is no doubt true that the Court, while construing a provision should not easily read into it words not expressly enacted, but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted, the Court should construe it in a harmonious way to make it meaningful. [398C H; 399A] In the present case, by insisting on the proof of the bona fide of the requirement of the landlord, the Court is not doing any violence to the statute nor embarking upon any legislative action. The Court is only construing the words of the statute in a reasonable way having regard to the context. [399E] By merely proving that the premises in question is a non residential building and that the landlord or any member of his family is not occupying, for the purpose of a business which he or any member of his family is carrying on, any residential building in the city,town or village concerned which is his own, the landlord cannot in the context in which section 10 (3)(a)(iii) appears, get a tenant evicted. He must show in view of clause (e) of section 10 (3) that his claim is bona fide. The word 'claim ' means "a demand for something as due", or "to seek or ask for on the ground of right", etc. In the context of the Rent Control Law, which is enacted for the purpose of giving protection to the tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them, in order to prove that his claim is bona fide, a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord 's requirement or need. The word 'claim ' in clause (e) of section 10(3) of the Act should, therefore, be construed as 'the requirement ' of the landlord or his deservedness. Since clause (e) of section 10(3) of the Act is also applicable to a petition filed under sub clause (iii) of section 10(3)(a) of the Act, it becomes necessary to examine whether the requirement of the landlord is bona fide; otherwise, a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in section 10(3)(a)(iii) of the Act. If the requirement of "claim" being "bona fide" as contained in section 10(3)(e) is construed 387 to mean that genuineness of the need of the landlord for the non residential building is not to be considered and the circumstances that the landlord on the date of making the application is factually carrying on business and has no non residential building of his own in his occupation in the city, town or village concerned, is to be construed sufficient to make his claim bona fide, the tenancy of no non residential building will be secure. It will be preposterous to attribute such an intention to the legislature. The need of the landlord should be genuine. The landlord should bona fide need the premises for his own use and occupation or for the occupation by any of the members of his family, as held by this Court in Phiroze Bamanji Desai vs Chandra Kant M. Patel and Ors., ; and Mattulal vs Radhe Lal; , [399F H; 400A G] The High Court was in error in this case in holding that the landlord need not prove that his requirement was bona fide but that his claim was bona fide as provided in clause (e) of section 10(3) of the Act. The High Court made a distinction between 'requirement ' and 'claim ' without there being a difference. [400H; 401A] The Court was of the view that M/s. Mahalakshmi Metal Industries vs K. Suseeladevi, ; M. Abdul Rahman vs section Sadasivam, 'and A. Khan Mohammed vs P. Narayanan Nambiar & Ors., 99 Law Weekly 965, relied upon by the respondent, were wrongly decided and were liable to be over ruled. The Court overruled them. A landlord seeking eviction of a tenant from a non residential premises under section 10(3)(a)(iii) of the Act should in order to succeed in his petition, establish that he bona fide requires the premises in addition to proving the other ingredients referred to therein. The judgment of the High Court set aside. Since the High Court had approached the case from a wrong angle, the Court directed the High Court to decide the case afresh in the light of what the Court had said in this appeal. Case remanded to the High Court to decide it afresh. If the High Court found that the case should be remanded to the Trial Court to enable any of the parties to lead evidence on the question of bona fide requirement of the landlord, it might remit the case to the Trial Court. [401B D] Mahalakshmi Metal Industries vs K.Suseeladevi, ; M. Abdul Rahman vs section Sadasivam, , and A. Khan Mohammed vs P.Narayanan Nambiar and others, 99 Law Weekly 965, overruled. 388 Moti Ram vs Suraj Bhan and Others, ; ; Neta Ram vs Jiman Lal, [1962] 2 Supp. S.C.R. 623; Nathala Sampathu Chetty vs Sha Vajingjee Bapulal, [1967] 1 Mad. L.J. 289; Madras District Central Co operative Bank Limited, Mylapore Branch, Madras 4 vs A. Venkatesh, 99 Law Weekly 714; M/s. Thilagaraj Match Works, through its partner section Chidambaram vs C. Sundresan, [1985] 1 Mad, Law J. 106; P. Thanneer Malai Chettiar vs S.J. Dhanraj and another, ; Seaford Court Estates Ltd. vs Asher, at 164; M. Pentiah and Ors. vs Muddala Veeramallappa and Ors., at 314; Bangalore Water Supply & Sewerage Board, etc. vs R. Rajappa Chandrakant M. Patel & Ors., [1974] 3 S.C.R.267 and Mattulal vs Radhe Lal, [1975] 1 S.C.R.127,referred to.

Appeal No. 8 of 1965. Appeal by special leave from the judgment and decree dated October 5, 1962 of the Bombay High Court in Appeal No. 598 of 1960, from Appellate Decree. section T. Desai and J. P. Aggarwal, for the appellant. O. P. Malhotra, and P. C. Bhartari, for the respondents. 425 The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment and decree of the Bombay High Court in Appeal No. 598 of 1960, whereby the High Court confirmed the judgment and decree dated January 30, 1960, passed by the Extra Assistant Judge, District Court, Ahmednagar, in Regular Appeal No. 300 of 1958, confirming the decree dated April 7, 1958, passed by the Joint Civil Judge, Junior Division, Ahmednagar, in Civil Suit No. 609 of 1948. The relevant facts for the determination of the points raised before us by the learned counsel for the appellant mortgagee, are as follows: The respondents before us filed a suit for the redemption of the mortgage of a bungalow at Ahmednagar alleging that the sale deed in respect of this bungalow for Rs. 5,000 was in fact a possessory mortgage. One of the terms of this deed, dated August 4, 1928, was : " However, a condition is laid down that if we pay you within three years from this day Rupees five thousand relating to this sale deed, and (interest) thereon at the rate of 12 twelve annas per cent per mensem at yearly rests, and the amounts spent by you to meet the expenses for repairs, constructions, taxes, etc. together with interest (at the rate) mentioned above. . you are to receive the same and allow us to purchase the aforesaid property back. The transaction was held to be a mortgage and there is no dispute on this point. On April 7, 1958, the suit was finally decreed for redemption of the property subject to a payment of Rs. 9,224 .12 0, Rs. 4,612 6 0 as principal, and Rs. 4,612 6 0 as interest thereon, within six months from that date. A preliminary decree was directed to be drawn up. The appellant filed an appeal in the Court of the District Judge, Ahmednagar, and, among other grounds, alleged that "the Court ought to have directed the Commissioner to deduct the rent received (i) first towards taxes, then (ii) towards interest of the amount of repairs, etc. , then (iii) towards interest on the principal amount, then towards (iv) amount of repairs and expenses and then towards the principal of the loan". The Extra Assistant Judge did not agree with this contention, and dismissed the appeal. The appellant filed a second appeal to the High Court. The High Court also disagreed with the above contentions. The High Court held that the priorities had been settled by the courts below in accordance with the provisions of section 76(h) of the (IV of 1882) and were, therefore, proper. The method of accounting followed by the Commissioner ap pointed in the case, and which was accepted by the courts below, was as follows : Out of the income derived from the property (There is no dispute that the bungalow was fetching rent from 426 month to month) the outgoings were deducted in the following order of priority : 1. Payment of taxes. Payment of interest on the amount of expenditure on maintenance and repairs. Payment of the expenditure on maintenance and repairs. Interest on the amount of principal of the mortgage bond. Amount of principal under dispute. The learned counsel for the appellant, Mr. section T. Desai, says that item 4 above should be item 3, and to substantiate this has submitted three propositions before us : (1) Section 76(h) does not lay down any order of priority inconsistent with the order of priority mentioned in section 76(d) and does not reverse that order. Both the provisions must be read together and in a harmonious manner; (2) The liability for repairs under section 76(d) is very limited in its scope. This liability arises only if there is a surplus left after deducting from the rents and profits of the property two items, viz.; (i) expenses mentioned in clause (c), and (ii) interest on the principal money; (3) If the mortgagee expends more for repairs than the surplus left after the last mentioned deductions, that expense would not be in pursuance of any liability of his under section 76(d) but would be claimed under the right conferred by section 63A(2) and section 72(b). Such expenses would be treated as additions to the principal money. Sections 76 (c), (d), (h), 63A and 72(b) read as follows: "76. When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property; (c) he must, in the absence of a, contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession, and any arrears of rent in default of payment.of which the property may be summarily sold; (d) he must, in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after 427 deducting from such rents and profits the payments mentioned in clause (c) and the interest on the principal money; (h) his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation rent in respect thereof, shall, after deducting the expenses properly incurred for the management of the property and the collection of rents and profits and the other expenses mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage money; the surplus, if any, shall be paid to the mortgagee;. . 63A. (1) Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provide d for in sub section (2), be liable to pay the cost thereof. (2) Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor. A mortgagee may spend such money as is necessary (b) for the preservation of the mortgaged property from destruction, forfeiture or sale; and may, in the absence of a contract to the contrary, add such money ' to the principal money, at the rate of interest payable on the principal, and where no such rate is fixed, at the rate of nine per cent per annum; Provided that the expenditure of money by the mortgagee under clause (b) or cause (e) shall not be deemed to be necessary 428 unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title. . " It seems to us clear that. the object of section 76(d) is not to fix any priorities but to make it obligatory on the mortgagee, in the absence of a contract to the contrary, to carry out necessary repairs to the property but the amount he can spend is limited to the difference between rents and profits and payments mentioned in cl. (c) and the interest on the principal money. When we come to cl. (h), it directs the mortgagee to apply the receipts from the mortgaged property in a, certain manner. The order of application is (1) the expenses properly incurred for the management of the property and the collection of rents and profits and the other expenses mentioned in cls. (c) and (d), (2) interest thereon, (3) the surplus, if any, has to be utilised towards reduction of interest on principal money, and (4) the principal money itself. In our view, there is no contradiction between section 76(d) and section 76(h). It is true, as stated in proposition No. 2 of the learned counsel, that the liability for repairs is limited in its scope and arises only if there is a surplus left after deducting from the rents and profits of the property the expenses mentioned in cl. (c), and the interest on the principal money, but the fact that the liability is limited in scope does not bear on the question whether it lays down any order of priorities inconsistent with the priorities mentioned in cl. .This is so because, as we have stated above, section 76(d) is not con cerned with the question of priorities but with limiting the amount which can be spent by the mortgagee in possession for carrying Out necessary repairs. Coming now to the third proposition, it is not necessary to deal with the question of the relationship between section 63A, section 72(b) and section 76, because the plaintiff has neither alleged nor proved that any expenses were incurred by which improvement was effected and the improvement was necessary to preserve the property from destruction or deterioration within section 63A(2). Similarly, he never alleged or proved that he spent money which was necessary for the preservation of the mortgaged property from destruction, forfeiture or sale within section 72(b). There is no allegation or evidence that the mortgagor had been called upon and failed to take proper and timely steps to preserve the property. We may mention that the only allegation to which our atten tion was drawn is contained in para 11 of the written statement, which reads as follows : "11. The transaction dated 4 8 28 is not one of security or mortgage. The defendant has never received rent for the suit property more than Rs. 65 per month. The defendant has incurred expenses from time to time for taxes, expenses, maintenance, repairs, (and) con structions. The defendant made constructions and 429 repairs and spent more, than Rs. 10,000 (ten thousand) therefor because it was his own property. I shall produce an extract in that behalf. For many years the property under dispute was unoccupied This hardly covers the point now sough to be made. For the aforesaid reasons the appeal fails and is dismissed with costs. G.C. Appeal dismissed.

The first appellant, his brother H and his son the second appellant, constituted a Hindu Joint family and were governed by the Mitakshara law of the Benares School. He died in 1952 leaving him surviving his widow. On December 15, 1956, the widow sold a half share in a house and a shop belonging to the joint family to the first respondent. The appellants filed a suit for a decree declaring that the sale by the widow was without consideration and for an order can celling the sale deed. The suit was dismissed by the Trial Court and, in appeal, by the High Court. In appeal to this Court it was contended on behalf of the appellants that under the Benares School of the Mitakshara, a male coparcener is not entitled to alienate even for value, his undivided interest in coparcenary property without the consent of the other coparceners except in certain specified cases, and by section 14(1) of the Hindu Succession Act 30 of 1956 it could not have been intended to confer a larger right on the widow of a coparcener. HELD: On the death of her husband, the widow became entitled to the same interest which H had in the joint family property under s.3(2) of the Hindu Women 's Right to Property Act, 18 of 1937, in the joint family property of that interest, by virtue of s.14(1) of the , she became full owner on June 17, 1956 and being full owner she was competent to sell it for her own purpose without the consent of the male coparceners of her husband. [477D G] A male member of a Hindu family governed by the. Benares School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property. but a widow acquiring an interest in that property by virtue of the is not subject to any such restrictions. That is however not a ground for importing limitations which the Parliament has not chosen to impose. [478F] Madho Parshad vs Mehrban Singh, L.R. 17 I.A. 194; Balgobind Das vs Narain Lal and Ors. L.R. 20 I.A. 116 and Chandradeo Singh & Ors. vs Mata Prasad & Anr. T.L.R. 31 All. 176 (F.B.); referred to.

Civil Appeal No. 656 of 1978. Appeal by Special Leave from the Award dated 21 9 1977 of the Labour Court, Meerut in Adjudication Case No. 160/74. G. B. Pia, L. R. Singh, R. P. Singh, R. K. lain, Suman Kapoor and Sukumar Sahu for the Appellant. R. K. Garg, V. J. Francis and Madan Mohan for Respondent No. l. G. N. Dikshit and o. P. Rana for Respondents 2 3. The Judgment of the Court was delivered by F DESAI J. This appeal by special leave, limited to the question of grant of back wages, raises a very humane problem in the field of industrial jurisprudence, namely, where termination of service either by dismissal, discharge or even retrenchment is held invalid and the relief of reinstatement with continuity of service Is awarded what ought to be the criterion for grant of compensation to the extent of full wages or a Part of it ? A few relevant facts will highlight the problem posed. Appellant is a private limited Company having set up an industrial unit in engineering industry. The raw material for its manufacturing process is tin plates. The appellant served notice of retrenchment on 56 workmen in February 1974 alleging non availability or raw material to utilise the full installed capacity, power shedding limiting the 566 working of the Unit to 5 days a week, and the mounting loss. Subsequently, negotiations took place between the Union and the appellant leading to an agreement dated 1st April 1974 whereby the workmen who were sought to be retrenched were taken back in service with continuity of service by the appellant and the workmen on their part agreed to co operate with the management in implementing certain economy measures and in increasing the productivity so as to make the undertaking economically viable. Simultaneously, the workmen demanded a revision of the wage scales and the appellant pleaded its inability in view of the mounting losses. Some negotiations took place and a draft memorandum of settlement was drawn up which provided for revision of wages on the one hand and higher norms of production on the other, but ultimately the settlement fell through. Appellant thereafter on 1st July, 1974 served a notice of retrenchment on 43 workmen. The Tin Workers ' Union, Ghaziabad, espoused the cause of such retrenched workmen and ultimately the Government of Uttar Pradesh by its notification dated 9th october 1974, issued in exercise of the power conferred by Section 4 K of the U.P. lndustrial Disputes Act, 1947. referred the industrial dispute arising out of retrenchment of 43 workmen, between the parties, for adjudication to the Labour Court. Names of the retrenched workmen were set out in an Annexure to the order of reference. The Labour Court, after examining the evidence led on both sides and considering various relevant circumstances, held that the reasons stated in the notice dated 1st July, 1974, Ext. E 2, viz., heavy loss caused by non availability of tin plates, persistent power curbs and mounting cost of production were not the real reasons for affecting retrenchment but the real reason was the annoyance felt by the management consequent upon the refusal of the workmen to agree to the terms of settlement contained in the draft dated 5th April, 1974 and, therefore, the retrenchment was illegal. The Labour Court by its award directed that all the workmen shall be reinstated in service from 1 st August, 1974 with full back wages, permitting the appellant to deduct any amount paid as retrenchment compensation from the amount payable to the workmen as back wages. the Appellant challenged the Award in this appeal. When the special` leave petition came up for admission Court rejected the special leave petition with regard to the relief of reinstatement but limited the leave to the grant of full back wages. The question whether the workmen who were retrenched were entitled to the relief of reinstatement is no more open to challenge. Another words. it would mean that the retrenchment of workmen was invalid for the reasons found by the Labour Court and the workman were 567 entitled to the relief of reinstatement effective from the day on which A they were sought to be retrenched. The workmen were sought to be retrenched from 1st August, 1974 and the Labour Court has directed their reinstatement effective from that date. The Labour Court has also awarded full back wages to the workmen on its finding that the retrenchment was not bona fide and that the non availability of the raw material or recurrent power shedding and lack of profitability was a mere pretence or a ruse to torment the workmen by depriving them of their livehood, the real reason being the annoyance of the appellant consequent upon the refusal of the workmen to be a party to a proposed settlement by which work load was sought to be raised(l. Mr. Pai, learned counsel for the appellant in his attempt to persuade us to give something less than full back wages, attempted to re open the controversy concluded by the order of this Court while granting limited leave that the retrenchment was inevitable in view of the mounting losses and falling production for want OF raw material and persistent power shedding. It was said that for the limited purpose of arriving at a just decision on the question whether the workmen should be awarded full back wages, we should look into the compelling necessity for m retrenchment of the workmen. Once leave against relief of reinstatement was rejected, the order of the Labour Court holding that retrenchment was invalid and it was motivated and the relief of reinstatement must follow, has become final. Under no pretext or guise it could now be re opened. Before dealing with the contentions in this appeal we must bear in mind the scope of jurisdiction of this Court under Article 136 of the Constitution vis a vis the Awards of the Industrial Tribunals. Article 136 of the Constitution does not envisage this Court to be a regular Court of appeal but it confers a discretionary power on the Supreme Court to grant special leave to appeal, inter alia, against the Award of any Tribunal in the territory of India. The scope and ambit of this wide constitutional discretionary power cannot be exhaustively defined. lt cannot obviously be so construed as to confer a right to a party which he has none under the law. The Court will entertain a petition for special leave in which a question of general public importance is involved or when the decision would shock the conscience of this Court. the lndustrial Disputes Act is intended to be a self contained one and it seeks to achieve social justice on the basis of collective bargaining, collaboration and arbitration. Awards are given on circumstances peculiar to each dispute and the Tribunals are to a large extent free from resrtrictions of technical considerations imposed on courts. A free and 568 liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, viz., quick solution of such disputes to achieve industrial peace. Though Article 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where Awards are made in violation of the principles of natural justice causing substantial and grave injustice to parties or raises an important principle of industrial law requiring elucidation and final decision by this Court or discloses such other exceptional or special circumstances which merit consideration of this Court (See Bengal Chemical & Pharmaceutical Works Ltd., Calcutta vs Their Workman) (1) The question in controversy which fairly often is raised in this Court is whether even where reinstatement is found to be an appro priate relief, what should be the guiding considerations for awarding full or partial back wages. This question is neither new nor raised for the first time. It crops up every time when the workman questions the validity and legality of termination of his service howsoever brought about, to wit, by dismissal, removal, discharge or retrenchment, and the relief of reinstatement is granted. As a necessary corollary the question immediately is raised as to whether the workman should be awarded full back wages or some sacrifice is expected of him. Let us steer clear of one controversy whether where termination of service is found to be invalid, reinstatement as a matter of course should be awarded or compensation would be an adequate relief. That question does not arise in this. appeal. Here the relief of reinstatement has been granted and the award has been implemented and the retrenched workmen have been reinstated in service. The only limited question is whether the Labour Court in the facts and circumstances of this case was justified in awarding full back wages. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived deprived workman of his earnings. if (1) [1959]] Suppl. 2 SCR 136 at 140. 569 thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law 's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore. a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the D employer terminates the service illegally and the termination is motivated as in this case, viz ., to resist the workman 's demand for revision of wages. the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed(l with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. , the State has endeavored to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it the were forced to litigation upto the apex Court and now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workman were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workman were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat vs Safai Kamldar Mandal(1), and a Division Bench of the Allahabad (1) 11 971] I Labour Law Journal 508 570 High Court in Postal Seals Industrial Co operative Society Ltd. vs Labour Court 11, Lucknow & ors.(l), have taken this view and we are of the opinion that the view taken therein is correct. The view taken by us gets support from the decision of this Court in workman of Calcutta Dock Labour Board & Anr. Employers in relation to Calcutta Dock Labour Board & ors.(2). In this case seven workmen had been detained under the Defence of India Rules and one of the disputes was that when they were released and reported for duty, they were not taken in service and the demand was For their reinstatement. The Tribunal directed reinstatement of five out of seven workmen and this part of the Award was challenged before this Court. This Court held that the workmen concerned did not have any opportunity of explaining why their services should not be terminated and, therefore, reinstatement was held to be the appropriate relief and Act aside the order of the Tribunal. It was observed that there was to justification for not awarding full back wages from the day they offered to resume work till their reinstatement. Almost an identical view was taken in Management of Paniltole Tea Estate vs The Workmen(3). In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on of the face of. the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice? according to law and not humor. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharm v.Workfild(4). It was, however, very strenuously contended that as the appellant company is suffering loss and its carry forward loss as on 31st March 1978 is Rs. 8,12,416.90, in order to see that the industry survives and the workmen continue to get employment, there must be come sacrifice on the part of workmen. If the normal rule in a case like this is to award full back wages, the burden will be on the appellant employer (l) [1971] I Law Journal, 327. (2) (3) ; (1) 31 179. 571 to establish circumstances which would permit a departure from the A normal rule. To substantiate the contention that this is an exceptional case for departing from the normal rule it was stated that loss is mounting up and if the appellant is called upon to pay full back wages in the aggregate amount of Rs. 2,80,0OO/ , it would shake the financial viability of the company and the burden would be unbearable. Often when some monetary claim by the workmen is being examined, this financial inability of the company consequent upon the demand being granted is voiced. Now, undoubtedly an industry is a common venture, the participants being the capital and the labour. Gone arc the days when labour was considered a factor of production. Article 43A of the Constitution requires the State to take steps to secure the participation of workmen in the management of the undertaking, establishments or other organisations engaged in any industry. Thus, from being a factor of production the labour has become a partner in industry. lt is a common venture in the pursuit of desired goal. Now? if a Sacrifice is necessary in the overall interest of the industry D or a particular undertaking, it would be both unfair and iniquitous to expect only one partner of the industry to make the sacrifice. Pragmatism compels common sacrifice on the part of both. The sacrifice must come from both the partners and we need not state the obvious that the labour is a weaker partner who is more often called upon to make the sacrifice. Sacrifice for the survival of an industrial undertaking cannot be an unilateral action. It must be a two way traffic. The management need not have merry time to itself making the workmen the sacrificial goat. If sacrifice is necessary, those who can afford and have the cushion and the capacity must bear the greater brunt making the shock of sacrifice as less poignant as possible for those who keep body and soul together with utmost difficulty. F The appellant wants us to give something less than full back wages in this case which the Labour Court has awarded. There is nothing to show whether the Managing Director has made any sacrifice; whether his salary and perks have been adversely affected; whether the managerial coterie has reduced some expenses on itself. If there is no such material on record, how do we expect the workmen, the less affording of the weaker segment of the society, to make the sacrifice, because sacrifice on their part is denial of the very means of livelihood. We have also found that since 1976 77 the appellant is making profit. A Statement of Account certified by the Chartered Accountants of the company dated 25th July, 1978 shows that the appellant has been making profit since 1976 77. The unit is, therefore, looking up. 572 One relevant aspect which would assist us in reaching a just con clusion is that after retrenching 43 workmen effective from 1st August 1974, 36 of them were recalled for service on large number of days in 1975 1976 and 1977, the maximum being the case of Jai Hind who was given work for 724 1/4 days, and the minimum being Harsaran s/o Baldev who was given work for 15 days. An amount of Rs. 74,587.26 was paid to these 36 workmen for the work rendered by them since the date of retrenchment. Certainly, the appellant would get credit for the amount so paid plus the retrenchment compensation it must have paid. Even then we were told that the employer will have to pay Rs. 2,80,OOO/ by way of back wages. We were also told that the appellant had offered to pay by way of settlement 50% of the back wages. Therefore, the only question is whether we should confirm the Award for full back wages. Now, undoubtedly the appellant appears to have turned the corner. The industrial unit is looking up. It has started making profits. The workmen have already been reinstated and therefore, they have started earning their wages. It may, however, be recalled that the appellant has still not cleared its accumulated loss. Keeping in view all the facts and circumstances of this case it would be appropriate to award 75% of the back wages to the workmen to be paid in two equal instalments. It may well be that in appropriate cases the Court may, in the spirit of labour and management being partners in the industry, direct scaling down of back wages with some sacrifice on management 's part too. We were, even here, inclined to saddle the condition that till the loss is totally wiped out the Managing Director and the Directors shall not charge any fee for the services rendered as Director, no dividend shall be paid to equity shareholders, and the Managing Director shall not be paid any overriding commission, if there be any, on the turnover of the company since this will account for the pragmatic approach of common sacrifice in the interest of the industry. We indicate the implications of Article 43A in this area of law but do not impose it here for want of fuller facts. The Award shall stand accordingly modified to the effect that the retrenched workmen who are now reinstated shall be paid 75% of the back wages after deducting the amount paid to them as wages when recalled for work since the date of retrenchment and adjustment of the retrenchment compensation towards the amount found due and pay able. The appellant shall pay the costs of the respondents as directed while granting special leave. N.V.K. Appeal dismissed.

Awarding full or partial back wages Plinciples for awarding Employee 's financial viability to pay baek wages lf could be a factor for not awarding full back wage,s. The management (Appellant) retrenched 56 of its worl;tnell alleging nonavailability of raw material to ntilise the fnll installed capacity, power shcdding limiting the working of the unit to 5 days a week and mounting losses. As a result of negotiations between the parties, the retrenched workmen were taken back in service. A few days later, however, the workmen demanded revision of wage scales, but the appellant pleaded inability to revise the pay scales in view of the mounting losses. Thereafter, the employer reternched 43 workmen. The dispute resulting out of the retrenchment was referred to adjudication under section 4k of the U.P. The Labour Court held that the real reason for retrenchment was annoyance felt by the management when the employees refused to agree to the terms oil settlement and that it was not for the reasons stated by the employer. The Labour Court ordered reinstatement of the retrenched workmen with full back wages. In the Special leave petition the employer questioned the correctness of the Labour Court 's view that the retrenched workmen should be reinstated. This Court rejected this prayer and limited the special leave to the question of granting back wages to the retrenched workmen ordered to be reinstated. ^ HELD: 1. Since the emoloyer 's prayer in the special ieave petition that the retrenched workmen should not be reinstated was rejected by this Court it meant that the Labour Court 's view that retrenchment was unjusified was correct. For the reasons found by the Labour Court retrenchment was motivated and so invalid. The workmen were entitled to the relief of reinstatement from the date they were sought to be retrenched. The order of the Labour Court on the question of reinstatement became final. [567 C E] 2. Article 136 of the Constitution does not envisage this Court to be a regular Court of Appeal but it confers a discretionary power on it to grant special leave to appeal, inter Ala, against the Award of any Tribunal. The scope and ambit of this vide constitutional discretionary power cannot be 564 exhaustively defined. It cannot be so construed as to confer a right to a party when he has none under the law. The Court will entertain a petition for special leave in which a question of general public importance is involved or when the decisions would shock the conscience of this Court. The is intended to be a self contained code and it seeks to achieve social justice on the basis of collective bargaining, conciliation and arbitration. Awards are given on circumstances peculiar to each dispute and the Tribunals are to a large extent free from restrictions of technical consider rations imposed on Courts. A free and liberal exercise of the power under Article 136 may materially affect the fundamental basis of such decisions, viz., quick solution of such disputes to achieve industrial peace. [567 F 568 A] Bengal Chemical & Pharmaceutical Works Ltd, Calcutta vs Their Workmen [1959] Suppl. 2 SCR 136 at 140 referred to. In the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. [568 G H] 3. Where termination of service is questioned as being invalid or illegal and the workman has to go through the litigation, his capacity to sustain himself throughout the protracted litigation is itself so precarious that he may not survive to see the day when relief is granted. If after such prolonged litigation the workman is not paid his back wages it would amount to a penalty for no fault of his. The workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. If the termination is illegal or motivated it may amount to unfair labour practice. Tn such circumstances reinstatement being the normal rule it should be done with full back wages. [569 B D] Workmen of Calcutta Dock Labour Board & Anr. vs Employers in relation to Calcutta Dock Labour Board & ors. , referred to. Management of Panitole Tea Estate vs The Workmen referred to. Dhari Gram Panchayat vs Safai Kamdar Mandal approved. Postal Seals Industrial Co operative Society Ltd. vs Labour Court ll Luck now & Ors. approved. For awarding relief of back wages all relevant considerations will enter The verdict of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. The Tribunal will then exercise its discretion But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discre tion must be cogent and convincing and must appear on the face of the record. It should not be arbitrary, vague and fanciful but legal and regular. [570 GE] Susannah Sharn vs Wakefield at 179 referred to. 565 on the question of the employer 's financial viability to pay back wages view of mounting losses the Supreme Court held. Industry is a common venture, the participants being capital and labour Article 43A. requires the State to take steps to secure participation of workman in the management. From being a factor of production labour has become a partner in industry. It is a common venture in pursuit of a desired goal. If sacrifice is necessary in the overall interest of the industry it would be unfair to expect only labour to make the sacrifice. It should be common sacrifice. If sacrifice is necessary those who can afford and have the capacity must bear the brunt. [571 A F] (b) In the present case there is nothing to show that the Managing Director has made any sacrifice. In the absence such information the weaker section of society cannot be expected to make a greater sacrifice than the directors In an appropriate case it would be appropriate to direct that till the loss is wiped out the managing directors shall not charge any fees for the services rendered and no dividend shall be paid. [571 G. 572 E F] (c) As the appellant has turned the corner, and the industrial unit is looking up and started making profits, the retrenched workmen having already been reinstated and started earing their wages it would be appropriate to award 75% of the backs wages to the workmen to be paid in two equal instalments. [572 D]

minal Appeal No. 226 of 1959. Appeal by special leave from the judgment and order dated September 23, 1958, of the Patna High Court in Criminal Appeal No. 87 of 1957. H. J. Umrigar, P. Rana and M. K. Ramamurai, for the appellant. 243 H. R. Khanna and T. M. Sen, for the respondent. April 24. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the order of the High Court at Patna dismissing the appellant 's appeal against his conviction under section 420, read with section 511, 'of the Indian Penal Code. The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate, representing that he was a graduate having obtained his B.A. Degree in 1951 and that he had been teaching in a certain school. In support of his application, he attached certain certificates purporting to be from the Headmaster of the School, and the Inspector of Schools. The University authorities accepted the appellant 's statements and gave permission and wrote to him asking for the remission of the fees and two copies of his photograph. The appellant furnished these and on April 9, 1954, proper admission card for him was despatched to the Headmaster of the School. Information reached the University about the appellant 's being not a graduate and being not a teacher. Inquiries were made and it was found that the certificates attached to the application were forged, that the appellant was not a graduate and was not a teacher and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. In consequence, the matter was reported to the police which, on investigation, prosecuted the appellant. The appellant was acquitted of the charge of forging those certificates, but was convicted of the offence of attempting to cheat inasmuch as he, by false representations, deceived the University and induced the authorities to issue the admission card, which, if the fraud had not been detected, would have been ultimately delivered to the appellant. Learned counsel for the appellant raised two contentions. The first is that the facts found did not amount 244 to the appellant 's committing an attempt to cheat the University but amounted just to his making preparations to cheat the University. The second is that even if the appellant had obtained the admission card and appeared at the M. A. Examination, no offence of cheating under section 420, Indian Penal Code, would have been committed as the University, would not have suffered any harm to its reputation. The idea of the University suffering in reputation is too remote. The offence of cheating is defined in section 415, Indian Penal Code, which reads: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omis sion causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat '. Explanation. A dishonest concealment of facts is a deception within the meaning of this section. " The appellant would therefore have cheated the University if he had (i) deceived the University; (ii) fraudulently or dishonestly induced the University to deliver any property to him; or (iii) had intentionally induced the University to permit him to sit at the M.A. Examination which it would not have done if it was not so deceived and the giving of such permission by the University caused or was likely to cause damage or harm to the University in reputation. There is no doubt that the appellant, by making false statements about his being a graduate and a teacher, in the applications he had submitted to the University, did deceive the University and that his intention was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the M.A. Examination. This card is 'Property '. The appellant would therefore have committed the offence of 'cheating ' if the admission card had not been withdrawn due to certain information reaching the University. 245 We do not accept the contention for the appellant that the admission card has no pecuniary value and is therefore not 'property '. The admission card as such has no pecuniary value, but it has immense value to the candidate for the examination. Without it he cannot secure admission to the examination hall and consequently cannot appear at the Examination. In Queen Empress vs Appasami (1) it was held that the ticket entitling the accused to enter the examination room and be there examined for the Matriculation test of the University was 'property '. In Queen Empress vs Soshi Bhushan (2) it was held that the term 'property ' in section 463, Indian Penal Code, included the written certificate to the effect that the accused had attended, during a certain period, a course of law lectures and had paid up his fees. We need not therefore consider the alternative case regarding the possible commission of the offence of cheating by the appellant, by his inducing the University to permit him to sit for the examination, which it would not have done if it had known the true facts and the appellant causing damage to its reputation due to its permitting him to sit for the examination. We need not also therefore consider the further question urged for the appellant that the question of the University suffering in its reputation is not immediately connected with the accused 's conduct in obtaining the necessary permission. Another contention for the appellant is that the facts proved do not go beyond the stage of reparation for the commission of the offence of `cheating ' and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations (1) Mad. 151. (2) All. 210, 246 are complete and the culpit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence ' and is exactly what the provisions of section 511, Indian Penal Code, require. The relevant portion of section 511 is: "Whoever attempts to commit an offence punish able by this Code. . or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished. . " These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit 's attempt to commit an offence punishable, must be an act which, by itself, or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence. It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear. 247 We may refer to some decided cases on the construction of section 511, Indian Penal Code. In The Queen vs Ramsarun Chowbey (1) it was said at p. 47: "To constitute then the offence of attempt under this section (section 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence. Two illustrations of the offence of attempt as defined in this section are given in the Code; both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence, although it was not an act which constituted a part of the offence,, and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition. From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredient (so to say) of the offence attempted. . The learned Judge said, further, at p. 49: "I regard that term (attempt) as here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence, although nothing be done, or omitted, which of itself is a necessary constituent of the offence attempted". We do not agree that the 'act towards the commission of such offence ' must be 'an act which leads immediately to the commission of the offence '. The purpose of the illustration is not to indicate such a construction of the section, but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The learned Judge himself emphasized this by observing at p. 48: "The circumstances stated in the illustrations to (1) (1872) 4 N.W.P. 46. 248 section 51 1, Indian Penal Code, would not have constituted attempts under the English law, and I cannot but think that they were introduced in order to show that the provisions of Section 51 1, Indian Penal Code, were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law". In In the matter of the petition of R. MacCrea (1) it was held that whether any given act or series of acts amounted to an attempt which the law would take notice of or merely to preparation, was a question of fact in each case and that section 511 was not meant to cover only the penultimate act towards the completion of an offence and not acts precedent, if those acts are done in the course of the attempt to commit the offence, and were done with the intent to commit it and done towards its commission. Knox, J., said at p. 179: "Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed. The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practiced upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon her mind may be several in point of number, and yet the first act after preparations completed will, if criminal in itself, be beyond all doubt, equally an attempt with the ninety and ninth act in the series. Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt, in my opinion, because the person (1) I.L.R. 15 All. 173. 249 committing the offence does or may repent before the attempt is completed". Blair, J., said at p. 181: "It seems to me that section (section 511) uses the word 'attempt ' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt, obviously using the word in the larger sense, does any act, etc., shall be punishable. The term 'any act ' excludes the notion that the final act short of actual commission is alone punishable. " We fully approve of the decision and the reasons therefor. Learned counsel for the appellant relied on certain cases in support of his contention. They are not much to the point and do not in fact express any different opinion about the construction to be placed on the provisions of section 511, Indian Penal Code. Any different view expressed has been due to an omission to notice the fact that the provisions of section 511, differ from the English Law with respect to 'attempt to commit an offence '. In Queen vs Paterson (1) the publication of banns of marriage was not held to amount to an attempt to commit the offence of bigamy under section 494, Indian Penal Code. It was observed at p. 317: "The publication of banns may, or may not be, in cases in which a special license is not obtained. a condition essential to the validity of a marriage, but common sense forbids us to regard either the publication of the banns or the procuring of the license as a part of the marriage ceremony. " (1) I.L.R. 1 All. 32 250 The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne 's Commentaries on the Indian Penal Code to the effect: "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations have been made." In Regina vs Padala Venkatasami (1) the preparation of a copy of an intended false document, together with the purchase of stamped paper for the purpose of writing that false document and the securing of information about the facts to be inserted in the document, were held not to amount to an attempt to commit forgery, because the accused had not, in doing these acts, proceeded to do an act towards the commission of the offence of forgery. In In the matter of the petition of Riasat Ali (2) the accused 's ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting to commit forgery as the printed form would not be a false document without the addition of a seal or signature purporting to be the seal or signature of the company. The learned Judge observed at p. 356: ". . . I think that he would not be guilty of an attempt to commit forgery until he had done some act towards making one of the forms a false document. If, for instance, he had been caught in the act of writing the name of the Company upon the printed form and had only completed a single letter of the name, I think that he would have been guilty of the offence charged, because (to use the words of Lord Blackburn) 'the actual transaction would have commenced, which would have ended in the crime of forgery, if not interrupted '. " The learned Judge quoted what Lord Blackburn said in Reg. vs Chessman (3): (1) Mad. 4. (2) Cal. (3) Lee & Cave 's Rep. 145. 251 "There is no doubt a difference between the preparation antecedent to an offence and the actual attempt; but if the actual transaction has commenced, which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.", He also quoted what Cockburn, C. J., said in M 'Pher son 's Case (1): "The word 'attempt ' clearly conveys with it the idea, that if the attempt had succeeded, the offence charged would have been committed. An attempt must be to do that which, if successful, would amount to the felony charged. " It is not necessary for the offence under section 511, Indian Penal Code, that the transaction commenced must end in the crime or offence, if not interrupted. In In re: Amrita Bazar Patrika Press Ltd. Mukherjee, J., said at p. 234: "In the language of Stephen (Digest of Criminal Law, article 50), an attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. To put the matter differently, attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime; in other words, an attempt consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of, its actual commission; it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted: Reg. vs Collins This again is not consistent with what is laid down in section 511 and not also with what the law in England is. In Stephen 's Digest of Criminal Law, 9th Edition, attempt ' is defined thus: (1) Dears & B. 202. (2) Cal. (3) (1864) 9 Cox. 497. 252 "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case. An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime. The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself. " In In re: T. Munirathnam Reddi (1) it was said at p. 122: "The distinction between preparation and attempt may be clear in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real distinction. The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he would be guilty of an attempt to commit the offence of murder. The illustrations in the section (section 511) bring out such an idea clearly. In both the illustrations, the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box in one case and the pocket was empty in the other case. " The observations 'the crucial test is whether the last act, if uninterrupted and successful, would constitute a crime ' were made in connection with an attempt to commit murder by shooting at the victim and are to be understood in that context. There, the nature of the offence was such that no more than one act was necessary for the commission of the offence. (1) A.I.R. 1955 And. 118. 253 We may summarise our views about the construction of section 511, Indian Penal Code, thus: A personal commits the offence of 'attempt to commit a particular offence ' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. In the present case, the appellant intended to deceive the University and obtain the necessary permission and the admission card and, not only sent an application for permission to sit at the University examination, but also followed it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of 'cheating '. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher. We therefore hold that the appellant has been rightly convicted of the offence under section 420, read with section 511, Indian Penal Code, and accordingly dismiss the appeal. Appeal dismissed.

The wajib ul arz of village Buland, teshil and district Rohtak, provided as follows: "No non proprietor can settle in the village or build a house without the consent of the owner of the estate. Whenever anybody settles, he obtains land or house from the proprietor of the same and he can live there so long as he pleases. Whenever he abandons the village, if the house belongs to the Shamlat of it falls into the possession of the proprietor About the houses of non proprietors there is no customary right to sell or mortgage residential houses, remove the material or build burnt brick house without the consent of the proprietor If any person dies heirless his house reverts 152 to the possession, of the proprietor of the estate in which it is situate", and mentioned the mendicants as a type of non proprietors settled in the village. One F, a Muslim belonging to that class, migrated to Pakistan. The appellants, who were proprietors, took possession of his dwelling house. The Custo dian of Evacuee Property claimed it as evacuee property. The appellants ' objection was finally dismissed by the Custodian General who held that the house was evacuee property and vested in the Custodian. The High Court dismissed the appellants ' petition under article 226 of the Constitution holding that the right of a non proprietor to occupy a village site was a right in property and vested in the Custodian when the non proprietor became an evacuee. In this Court, while the appellants relied on the wajib ul arz, on behalf of the respondents reliance was placed on section 18 of the . Held, that section 18(1) of the Administration of Evacuee Pro perty Act, 1950, contemplated tenants, whether occupancy tenants or tenants for a certain time and applied only to the occupancy rights of a tenant. Under the wajib ul arz, however, a non proprietor could have no such right in the site occupied by him as would make him a tenant of it. Section 18(1) of the Act, therefore, had no application and the house in question reverted to the proprietors under the provisions of the wajib ul arz when the non proprietor abandoned the village and migrated to Pakistan. It could not, therefore, vest in the Custodian. It was not correct to say that under the wajib ul arz that F 's interest in the house was that of a lessee. Associated Hotels of India vs R. N. Kapur, [1960] 1 S.C.R. 368, held inapplicable,

Civil Appeal No. 1 1 37 of 1981 . From the Award dated 22nd December, 1978 of the 9th Industrial Tribunal, West Bengal in Industrial Case No. X 7/74 (G.O. No. 8231 IR IR IOL 3 (K)/73. R.K. Garg, P.K. Chakravarti and A K. Ganguli for the Appellants. G.B. Pai, section Chatterjee, Altaf Ahmed and A K Panda for the Respondents. The Judgment of the Court was delivered by DESAI, J. In exercise of the power conferred by Sec. 10 of the , the Government of the State of West Bengal as an appropriate Government referred the following dispute to the Ninth Industrial Tribunal, West Bengal for adjudication. The reference reads as under: "Whether the termination of services of Shri Manas Kumar Mukherjee is justified ? To what relief, if any is he entitled ?" Hindustan Steel Ltd. ( 'Employer ' for short) dismissed Manas Kumar Mukherjee( 'Workman ' for short) without holding any inquiry 431 and without giving any opportunity to the workman to question or A correct the allegation of misconduct levelled against him and in violation of principles of natural justice. The employer tried to sustain its action by invoking its powers under Standing Order 32 of the certified Standing Orders of the Hindustan Steel Ltd. S.O. 32 reads as under: B "32. Special Procedure in certain cases. Where a workman has been convicted for a criminal offence in a Court of Law or where to General Manager is satisfied, for reasons to be recorded in writing, that it is inexpedient or against the interests of security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure laid down in Standing Order 31. " S.O. 31 prescribed detailed procedure for dealing with cases of misconduct. Briefly stated, the procedure prescribed in S.O. 31 for imposing major penalty is that the employer has to draw up a charge sheet and give an opportunity to the delinquent workman to make his representation within seven days. If the allegations are controverted, an enquiry has to be held by an officer to be nominated by the management and in such an enquiry reasonable opportunity of explaining and defending the alleged misconduct must be given to the workman. The delinquent workman may also be given the assistance of a fellow employee. The procedure also permits suspension of the delinquent workman pending enquiry. At the end of the enquiry. if the charges are held proved, and it is provisionally decided to impose major penalty, the delinquent workman has to be afforded a further resalable opportunity to represent why the penalty should not be imposed on him. According to the employer it can dispense with such an enquiry in exercise of the power conferred by S.O. 32. The scope and ambit of S.O. 32, will be presently examined. The Tribunal held that as the employer dispensed with the disciplinary enquiry in exercise of the power conferred by S.O. 32, it cannot be said that dismissal from service was not justified. The Tribunal observed that even if there were allegations of misconduct, the employer was quite competent to pass an order of removal from service without holding any enquiry in view of the provision con 432 tained in S.O. 32 The Tribunal concluded that the employer accused the workman of committing misconduct and proceeded to pass the order of removal from service without holding any enquiry into the allegations of misconduct, it cannot be said to be a colorable exercise of power and the workman would not be entitled to any relief. The Tribunal accordingly rejected the reference. Hence this appeal by special leave. The only question that must engage our attention is what is the scope and ambit of S.O 32. It has already been extracted. Upon its true construction the standing Order does not provide that for reasons to be recorded in writing, an enquiry into misconduct can be dispensed with. S.O. 32 clearly confers power upon the General Manager that on his being satisfied that it is inexpedient or against the interest of security to continue to employ the workman, then for reasons to be recorded in writing the workman may be removed or dismissed from service without following the procedure laid down in Standing Order 31. This archaic standing order reminiscent of the days of hire and fire is relied upon by a public sector undertaking to sustain an utterly unsustainable order and to justify an action taken in violation of the principles of natural justice, an action which has the effect of denying livelihood and casting a stigma. One can appreciate that in a given situation, and enquiry into misconduct may be counter productive. Constitution itself contemplates such a situation when it enumerates siltations in which a punishment of dismissal, removal or reduction in rank can be imposed without holding a disciplinary enquiry. Let it be extracted: "311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State ( 1) . . . . . . (2) No such person as aforesaid/shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: . . . . . . . . . 433 Provided further that this clause shall not apply A (a) where a person is dismissed or removed or reduced in rank on the ground ' of conduct which has led to his conviction on a criminal charge: or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. " A bare perusal of the situations and contingencies in which a disciplinary enquiry affording a reasonable opportunity of being heard before imposing the enumerated penalty can be dispensed with will clearly show that the power is not given to dismiss remove or reduce in rank the delinquent worker but the power conferred by the afore mentioned provision is to dispense with an enquiry before imposing major penalty. Sub art (3) of Art 311 provides that 'if, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2). the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. ' Now the three situations contemplated by the provision arc such that holding of an enquiry would be counter productive. Where the penalty of dismissal, removal or reduction in rank is to be imposed on the ground of a conduct which has led to his conviction on a criminal charge, obviously, the enquiry will be superfluous or a repeat performance because a judicial tribunal has held the charges proved. But where the authority empowered to impose the penalty is satisfied for reasons to be recorded by it in writing to dispense with an enquiry, the reasons so recorded must ex facie show that it was not reasonably practicable to hold a disciplinary enquiry. Similarly, where in the interest of the security of the State, the President or the Governor, as the case may be, is satisfied that it is not expedient to hold such enquiry, the same can be dispensed with. In the last mentioned situation, the highest executive of the country, the President and the highest executive of State the Governor alone is entitled to dispense with the inquiry, if it is satisfied that in the interest of the security of the State, it is not 434 expedient to hold such enquiry Dispensing with the enquiry in the first and third situation does not present a difficulty because in the first situation there is a conviction by a criminal court and in the third situation, the highest executive in the Centre and the State is empowered to dispense with the enquiry. It is in the second fact situation that one must evaluate the width of discretionary power to dispense with enquiry. The appointing authority is invested with power to dispense with enquiry. And in case of persons belonging to Class IV services, the appointing authority may be some one in the lower administrative hierarchy and such an officer is invested with such draconian powers. Where such a power is conferred, on an authority entitled to impose penalty of dismissal or removal or reduction in rank, before it can dispense with the inquiry, it must be satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an enquiry. Power to dispense with enquiry is conferred for a purpose and to effectuate the purpose power can be exercised. But power is hedged in with a condition of setting down reasons in writing why power is exercised. Obviously therefore the reasons which would permit exercise of power must be such as would clearly spell out that the inquiry if held would be counter productive. The duty to specify by reasons the satisfaction for holding that the inquiry was not reasonably practicable cannot be dispensed with. The reasons must be germane to the issue and would be subject to a limited judicial review. Undoubtedly Sub article (3) of article 311 provides that the decision of the authority in this behalf is final. This only mean that the Court cannot inquire into adequacy or sufficiency of reasons. But if the reasons ex facie are not germane to the issue namely of dispensing with enquiry the Court in a petition for a writ of certiorari can always examine reasons ex facie and if they are not germane to the issue record a finding that the pre requisite for exercise of power having not been satisfied, the exercise of power was bad or Without jurisdiction. If the court is satisfied that the reasons which prompted the concerned authority to record a finding that it was not reasonably practicable to hold the enquiry, obviously the satisfaction would be a veneer to dispense with the inquiry and the court may reject the same. What is obligatory is to specify the reasons for the satisfaction of the authority that it was not reasonably practicable to hold such an inquiry. Once the reasons are specified and are certainly subject to limited judicial review as in a writ for certiorari, the court would examine whether the reasons were germane to the issue or was merely a cloak, device or a pretence to dispense with the inquiry 435 and to impose the penalty. Let it not be forgotten what is laid down A by a catena of decisions that where an order casts a stigma or affects livelihood before making the order, principles of natural justice namely a reasonable opportunity to present one 's case and controvert the adverse evidence must have full play Thus even where the Constitution permits dispensing with the inquiry, a safeguard is introduced that the concerned authority must specify reasons for its decision why it was not reasonably practicable to hold the inquiry. Turning to S.O 32, it nowhere obligates the General Manager to record reasons for dispensing with the inquiry as prescribed by S.O. 31. On the contrary, the language of S O. 32 enjoins a duty upon the General Manager to record reasons for his satisfaction why it was inexpedient or against the interest of the security of the State to continue to employ the workman. Reasons for dispensing with the inquiry and reasons for not continuing to employ the workman stand wholly apart from each other. A Standing Order which confers such arbitrary, uncanalised and drastic power to dismiss an employee by merely stating that it is inexpedient or against the interest of the security to continue to employ the workman are violative of the basic requirement of natural justice inasmuch as that the General Manager can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the character of the workman without recording reasons why disciplinary inquiry is dispensed with and what was the misconduct alleged against the employee. It is time for such a public sector undertaking as Hindustan Steel Ltd to recast S.O. 32 and to bring it in tune with the philosophy of the Constitution failing which it being other authority and therefore a State under article 12 in an appropriate proceeding, the vires of S O. 32 will have to be examined. It is not necessary to do so in the present case because even on the terms of S.O. 32, the order made by the General Manager is unsustainable. The view we are taking gets some support from a decision of this Court. In a slightly different situation, this Court in L. Michael & Anr. vs M/s Johnston Pumps India Ltd ll) observed that discharge simplicitor on the ground of loss of confidence when questioned before a court of law on the ground that it was a colorable exercise of power or it is a mala fide action, the employer must disclose that he has acted in good faith and for good and objective reasons. Mere ipse dixit of the employer in such a situation is of no significance. Where a disciplinary enquiry is dispensed with on the specious plea that it was not reasonable practicable to hold one and a penalty (1) [1975] 3 S.C.R.489. 436 of dismissal or removal from service is imposed, if the same is challenged on the ground that it was a colorable exercise of power or mala fide action, the same situation would emerge and the employer must satisfy the Court the good and objective reasons showing both proof of misconduct and valid and objective reasons for dispensing with the enquiry. In our opinion, when the decision of the employer to dispense with enquiry is questioned, the employer must be in a position to satisfy the Court that holding, of the enquiry will be either counter productive or may cause such ireparable and irreversible damage which in the facts and circumstances of the case need not be suffered. This minimum requirement cannot and should not be dispensed with to control wide discretionary power and to guard against the drastic power to inflict such a heavy punishment as denial of livelihood and casting a stigma without giving the slightest opportunity to the employee to controvert the allegation and even without letting him know what is his misconduct. Turning to the facts of the case, a bare perusal of the impugned order is both instructive and provides ample material for pointing out how the drastic power can be arbitrarily exercised without keeping in view the prerequisite to be satisfied for exercise of the power. The order reads as under: " HINDUSTAN STEEL LIMITED DURGAPUR STEEL PLANT Ref. No. Order/PF/MN 1215 24th August, 1970 O R D E R Having considered the matter fully, I am satisfied that it is no longer expedient to employ Shri Manas Mukharjee, Assistant, Order Department, Durgapur Steel Plant any further. It is therefore ordered that Shri Manas Mukherjee be removed from the service of the Company with effect from 24. 8. 1970. He is allowed/three months ' salary which he may collect from the cash section of the Finance Department by 26.8.1970. Sd/ Maj. ,Gon. Director Ineharge. 437 The expression 'no longer expedient ' as used in the order A clearly spells out the fact that some enquiry was started. What prompted the General Manager to close the enquiry, one cannot gather from the order But our attention was invited to Ann. R 2 which according to the respondents specifies the reasons recorded in writing for dispensing with the enquiry. Briefly, in Ann. R 2, it is stated that the authority concerned has looked into the secret . report sent to him by Shri P S Rao Naidu, Planning & Progress Officer, Order Deptt. and the comments of DGM thereon. He has also stated that he has looked into the report received from Sr. AO (E) and the copy of the complaint lodged by Smt. Gita Majumdar, wife of an employee in the plant with the police. These recitals have been considered sufficient to dispense with tho enquiry. If Smt. Gita Majurndat did file a report with the police making accusation against the appellant, she would have to be examined in the criminal case. She could have been more conveniently called before the enquiry officer, and the secret reports remain secret. The reason for dispensing with the enquiry do not spell out what was the nature of the misconduct alleged to have been committed by the appellant and what prompted the General Manager to dispense with tho enquiry. It is difficult to hold that the recitals of the order spell out some objective reasons and the reasons were germane to the question of dispensing with the enquiry Frankly speaking, we are not satisfied in this case that for valid, objective and relevant reasons, the enquiry was dispensed with. An attempt was made to urge that some annexures to the counter affidavit would show certain complaints received against; the appellant. We decline to look into them as they were not given to the appellant in the course of enquiry to meet or explain the same. We consider them irrelevant at this stage, Once we hold that there was DO justification for dispensing with the enquiry, imposition of penalty of dismissal without disciplinary enquiry as contemplated by S O 31 would be illegal and invalid. Two options are thereupon open to us. One would be to permit the General Manager, if he is so minded to hold the disciplinary enquiry and come to his own decision and the second would be to remit the matter to the Labour Court to permit the respondent employer if it is entitled in law to substantiate the charges of misconduct before the Tribunal. The order removing the appellant from service was passed way back on August 24, 1970. More than 14 years have rolled by. H 438 In such a situation, to start the whole thing de nevo would neither be of any help to the appellant nor would be conducive to the maintenance of discipline in the plant. Undoubtedly, once a workman is removed from service a stigma attaches to him, and if the order is held to be not in consonance with the provisions of the relevant standing orders at any rate, the stigma has to be removed Having given the matter our anxious consideration, we dispose of the appeal as under The respondent shall recall and cancel the order dated August 24, 1970 removing the appellant from service and reinstate him and on the same day the appellant shall tender resignation of his post which shall be accepted by the respondent. The respondent shall pay as and by way of back wages and future wages, a sum of Rs. 1,50,000 to the appellant within 2 months from today to be spread over from year to year commencing from the date of removal from service. We give one more opportunity to the respondent to recast its Standing Order 32 within a period of two weeks to be brought at best in conformity with the second proviso to sub article (2) of article 311 failing which its validity will be re examined by this Court. The amount of Rs. 1, 50,000 directed to be paid to the appellant by the respondent comprises backwages, and all other allowances admissible to him from year to year from 1970 upto the end of 1984. The amount shall be spread over from year to year. If because of the lump sum payment as directed herein the respondent is required to deduct Income tax as enjoined by Sec. 192 of the y Income tax Act, 1961, the appellant shall be entitled to relief under Sec. 89 of the Income Tax Act, 1961. For this purpose, the appellant shall make an application as required by Sec. 89 read with Rule 21A to the appropriate authority, who would consider granting of relief to the appellant under Sec. 89 of the Income tax Act. The proceeding in this behalf shall be disposed of within a period of six months. The appeal is disposed of in these terms with no order as to cost. N.V.K. Appeal allowed.

The correct test to determine whether a contract made before the partition of India on behalf of the Governor General in Council comes within the purview of cl. (a) of article 8(1) of the Indian Independence (Rights, Property and Liabilities) Order, 1040 1947, so as to be deemed to have been made on behalf of the Dominion of Pakistan, is either (1) if the contract was made on August 15, 1947, it would have been a contract for the purposes of the Dominion of Pakistan ; or (2) if Pakistan had existed on the day the contract was made, it would be a contract for the purposes of Pakistan. Union of India vs Chinu Bhai jeshing bhai, I.L.R. 1953 Bom. 117, approved. The purpose of a contract is not to be confused with the ultimate disposal of the goods supplied thereunder since such disposal can in no way determine or modify it. Nor do the powers of control over military stores vested in the joint Defence Council by article 8(c) of the joint Defence Council Order, 1947, and saved by article 3(2) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, whereby the goods might be transferred anywhere in India, make any difference and the rights and liabilities accruing from such contracts fall entirely to be adjudged by the provisions of the Indian Independence Order and not by the joint Defence Council Order. The concluding part of article 8(1) makes it quite clear that the Article makes no distinction between contracts where the consideration is either executed or executory in nature and applies equally to both. Elahi Bux vs Union of India, A.I.R. 952 Cal. 471 and Krishna Ranjait vs Union of India, A.I.R. 1954 Cal. 623, approved. Union of India vs Loke Nath, A.I.R. 1952 Cal. 140, disapproved. Consequently, in a case where the Union of India was sought to be made liable an the basis of a contract entered into on behalf of the Governor General of India in Council for the supply of fodder to the Manager, Military Farms, Lahore Cantonment, which was in Pakistan on August 15, 1947, and the trial Court found for the Union of India but the High Court, taking the view that the fodder constituted military stores under the exclusive control of the joint Defence Council on August 15, 1947, liable to be transferred anywhere in 'India, reversed that finding, the contract, even assumig that view to be correct, must be held to be one exclusively for the purposes of Pakistan as from the at date and the Union of India could not be made liable thereunder.

the Court to interpret words of ambiguous meaning in a, broad and liberal sense, 107 826 & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 61 of 1952. Appeal by special leave granted by the Supreme Court on the 10th September, 1951, from the Judgment and Order dated the 5th March, 1951, of the High Court of Judicature at Bombay (Chagla C.J. and Bhagwati J.) in Criminal Appeal No. 394 of 1950 arising out of the Judgment and Order dated the 29th May, 1950, of the Court of the Presidency Magistrate, Second Court, Mazagaon, Bombay, in Cases Nos. 630 /P and 635/P of 1949. M.P. Amin (R. J. Kolah, with him) for appellants Nos. 1, 2 and 4. As K. Muthuswami for appellant No. 3. C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with him) for the respondent. 1953. March 30. The Judgment of the Court was delivered by BOSE, J. The appellants have been convicted under sections 7 and 9 of the Essential Supplies Act (No. XXIV of 1946) on two counts. The first appellant is a registered joint stock company, the Seksaria Mills Ltd. It was fined Rs. 10,000 on each of the two counts, that is to say, a total fine of Rs. 20,000, and this was upheld in appeal. The second appellant is the Director of the Mills. He was sentenced to two months ' rigorous imprisonment and to a fine of Rs. 2,00,000 on each count. In appeal the sentence of imprisonment was set aside and the fine reduced to Rs. 10,000 on each count. The third appellant is the General Manager of the Mills. He was sentenced to a fine of Rs. 2,000 on each count. This has been upheld. The fourth appellant is the Sales Manager of the Mills. He was sentenced to four months ' rigorous imprisonment and a fine of Rs. 1,00,000 on. each count. In appeal the sentence of imprisonment was upheld but the fine was reduced to Rs. 10,000 on each count. The substantive sentences are to run concurrently. 827 A Government of India Notification dated 2nd February, 1946, required every manufacturer to submit " true and accurate information relating to his undertakings " to the Textile Commissioner C.S.T. Section at Bombay. In compliance with this Order the first appellant submitted a return, signed by the third appellant, on 10th March, 1947. This return is Exhibit A 1. It showed that 13 bales of cloth (20 half bales and 3 full bales) were delivered to Messrs. Dwarkadas Khetan & Company of Bombay during the month of February, 1947, on behalf of the quotaholder Shree Kishan & Company. Another return of the same date (Exhibit A 2), also relating to the month of February, 1947, showed that 6 bales were delivered to the same Dwarkadas Khetan & Company on behalf of another quota holder Beharilal Bajirathi. A note on the back of each printed form states. By 'delivered 'or delivery ' is meant physical delivery of cloth in bales or in pieces but not cloth which though paid for is still in the I physical possession of the seller. " The offence charged is that this information is not true and accurate. The case for the prosecution is that the bales remained in the physical possession of the first appellant at all material times and were not physically delivered to Messrs. Dwarkadas Khetan & Company. Before us the learned Solicitor General added that even if there was physical delivery to Dwarkadas Khetan that did not comply with the requirements of the form because the form requires information regarding physical delivery to the quota holder or his agent and as Dwarkadas Khetan was not the agent of the quota holder, the statement is inaccurate and misleading. The learned Presidency Magistrate who tried the case, and also the High Court on appeal, hold that the prosecution have established their case and so have convicted and upheld the convictions respectively. 828 The business procedure of the first appellant is explained by Dwarkadas Khetan. His firm, Dwarkadas Khetan & Company, are the first appellant 's sole selling agents. ' They are del credere agents and guarantee payment to the first appellant of all sales made and, on the other side, guarantee delivery to the purchasers with whom they deal direct. It is necessary at this stage to understand that because of various orders and rules made under the Essential Supplies Act the first appellant could only sell to specified quota holders and only up to the limits of their quotas. The two quota holders which concern us are Shree Kishan & Company and Beharilal Bairathi. The first appellant 's selling procedure is this. When goods are ready for sale, it sends Dwarkadas Khetan & Company in duplicate a " ready sale note ". These notes contain particulars about the bales and the persons to whom they are to be delivered. Upon receipt of this Dwarkadas & Company contact the quota holders or their agents. The next step is for the quota holder to pay Dwarkadas & Company the price of the goods specified in the " ready sale note". Upon receipt of the money, one of the two notes is handed over to the quota holder or his agent and he is given a receipt for the money paid. At the same time Dwarkadas & Company send the first appellant an " advice slip " telling it that the money has been received and asking it to prepare a delivery order. The first appellant then debits Dwarkadas & Company with the price and not the purchaser. For payment it looks to Dwarkadas & Company. Upon receipt of this advice slip the first appellant 's office prepares the delivery order and delivers the goods to the party concerned. The person receiving the goods then signs the delivery order in token of receipt and the signed order is sent to Dwarkadas & Company who, after making the necessary entries in their books, return the order to the Mills office. It will be seen that the first appellant has no direct dealing, with the purchaser. It acts through Dwarkadas & Company in every case. 829 It will now be necessary to trace the history of the two consignments relating to the 13 bales and the 6 bales separately. We will deal with the 13 bales first. The quota holder in respect of the 13 bales was Shree Kishan & Company. This firm was an up country firm and so it was necessary for it to appoint a local agent in Bombay for making payments and receiving delivery. There was some confusion about the agent so appointed; at first one Dharsi Moolji was appointed and then P. C. Vora. The letter informing the first appellant that Dharsi Moolji bad been appointed is not on record but we were told at the Bar that it is not disputed that I the letter is dated 7th February, 1947. In any case, Dharsi Moolji wrote to the first appellant on 20th February, 1947, saying that he had been authorised to take delivery of the January quota on behalf of Messrs. Shree Kishan & Company and on 21 st February, 1947, he paid Dwarkadas Khetan & Company a sum of Rs. 14,000 for this quota. A receipt and an entry in Dwarkadas ' books evidence the payment. The same day Dwarkadas Khetan wrote to the first appellant telling it that his firm had received payment in advance from Shree Kishan & Company and that the 13 bales should be sent to "our godown ", Whether the " our " refers to Dwarkadas ' godown or to a godown jointly shared between Dwarkadas and the first appellant is not clear. The learned High Court Judges hold that the godown belonged to the first appellant, but that, in our opinion, is not very material for reasons we shall give later. On receipt of this " advice slip " the first appellant prepared what it has called a " ready sale note " on the same. day, 21st February, 1947, authorising the purchaser to take delivery within a week. Dharsi Moolji was named as the Commission Agent. (The man now entered is Prataprai Chunilal, that is, P. C. Vora, but the original name was Dharsi Moolji. The change was made for reasons which will presently appear). 830 In pursuance of all this, the first appellant dispatched the 13 bales on 28th February, 1947, and sent them to Dharsi Moolji. But in the meanwhile other events had taken place. One P. C. Vora wrote to the first appellant on 17th February, 1947, and said that he had been authorised to take possession of these 13 bales. What had happened in the meanwhile was that the, quota holder Shree Kishan & Company had changed its local agent. Accordingly, when the goods reached Dharsi Moolji he refused to take delivery. The selling agent Dwarkadas thereupon telephoned the first appellant. He explained that he had actually, received the money for the bales from Dharsi Moolji and had not received anything from P. C. Vora and so could not deliver the goods to the latter and equally could not accept money from P. C. Vora until the matter had been straightened out with Dharsi Moolji. The first appellant thereupon told Dwarkadas to keep the goods in the Dady Seth godown. On the same day, apparently before all this occurred, the first appellant credited Dwarkadas Khetan with the money he had received from Dharsi Moolji on account of the 13 bales, less Dwarkadas ' commission. In other words, this adjustment in the accounts was the equivalent of payment for the 13 bales by Dwarkadas Khetan to the first appellant on account of the purchaser Shree Kisban & Company. It will be remembered that Dwarkadas Khetan & Company were the sole selling agents and they alone were responsible to the Mills for orders ' which. were placed through them. The muddle between Dharsi Moolji and P. C. Vora was cleared up between 3rd March, 1947, and 14th March, 1947. On 3rd March, 1947, Dwarkadas Khetan returned the Rs. 14,000 which Dharsi Moolji had paid and on 14th March, 1947, accepted the money from P. C. Vora. The alteration in the "ready sale note" of 21st February, 1947, was presumably made because of these facts. Four days later, Dwarkadas Khetan delivered the goods to P. C. Vora. (There was no need to make any alterations in the first 831 appellant 's account books because Dwarkadas was responsible for the price whatever happened between him and Dharsi and also because in any event the. goods were sold to Shree Kishan: the only query at that time was who was his agent to accept delivery for him). The return with which we are concerned was made on 10th March, 1947. It will be seen from the above that the position at that date was as follows: (1) the selling, agent bad informed the first appellant that he had effected a sale, (2) the selling agent had paid the first appellant for the goods, (3) specific bales had been set aside and appropriated to the sale and consequently the property in the goods had passed, (4) the goods had actually left the Mills ' premises, and (5) they were in the Dady Seth godown under the control of Dwarkadas Khetan. We say the goods were under the control of Dwarkadas Khetan for three reasons: (1) as shown above, the property in the goods had passed and so the, first appellant no longer had title to them, (2) Dwarkadas says that until be received the money for them from P. C. Vora he would have refused to deliver them, (3). being a del credere agent he would have been within his rights (a) to refuse delivery to anybody till he was paid and (b) to deliver them despite anything the first appellant might say once he received his money; also because Dwarkadas ' Mehtaji says "If the goods are not, accepted by the merchants or their agents, the same are sent to us and we keep them in the godown. " Bearing these facts in mind, we will now examine the offending document. It is a printed form. The heading is " Manufacturer 's Returns showing detail% of delivery to quota holders or other8 of civil cloth. " Then there is a note as follows : " IMPORTANT: This form should be completed in accordance with the instructions printed overleaf. giving full details relating to the previous month, 832 Under that is the following "All stocks pledged/hypothecated by manufacturers with banks or others shall be included in this statement. " The only column in the printed form which could be related to this is column 3 headed " Full name and address of person to whom delivered. " On the back there are the following instructions: "II. The word I others ' in the heading of the form includes artificers who are privileged to purchase cloth under General Permission No. TCS 42 / 1, dated 10th August, 1944, and any person to whom deliveries are made under any other General or Special Permission or Order of the Textile Commissioner. The name of artificers or any other persons shall be 'mentioned in column 3 and against their names, number and date of General or Special Permission shall be mentioned in column 2. By 'delivered ' or 'delivery 'ismeantphysical delivery of cloth in bales or in pieces but not cloth which, though paid for, is still in the physical possession of the seller. " The form was filled in as follows : In the column headed 11 Full name and address of quota holder " the name of ShreeKishan & Company is entered. In the column headed Full name and address of person to whom delivered the name of Dwarkadas Khetan & Company is entered. The question we,have to decide is whether these two entries are inaccurate. Dealing first with the learned Solicitor 'General 's argument regarding the construction of the words used in the form, we are of opinion that it cannot be accepted. The second clause of the portion marked "Important" towards the head of the form states that all stocks pledged or hypothecated with banks or others must also be included, and Instruction No. II on the back directs that the names of "any other person" must be entered in column 3 and that the number and date of the General or Special Permission must be set out in column 2, Whether this means that goods 833 cannot be pledged without permission or that only goods allotted to quota holders can be pledged we do not know, but whatever it means, it is clear that the entry in column 3 is not intended to be confined to quota holders or their agents but means what it says, namely the person to whom physical delivery of the goods has been made whoever he may be. The only question therefore is whether there was physical delivery to Dwarkadas Khetan. In one sense, there can be no doubt about that. The goods left the Mills ' premises, the property in them had passed and when Dharsi Moolji refused to receive them they were handed over to Dwarkadas Khetan and not taken back to the Mills. Dwarkadas Khetan asked the Mills what he should do with them, and in the end he placed them in the Dady Seth godown. In any ordinary understanding of the term it would be clear that the goods had been physically delivered to Dwarkadas Khetan. But the learned High Court Judges do not appear to have concerned themselves with the question of actual physical possession because they say: "It would not be true to say, and the record amply bears it out, that this godown belonged to Dwarkadas Khetan. Even if Dwarkadas Khetan had control over the godown, the control was exercised on behalf of and as the agent of the Mills. " Therefore, the test of the sort of possession which they had in mind was not the control over the goods. But that has always been regarded as one of the tests of physical or de facto possession. Lancelot Hall distinguishing between possession in law and possession in fact says that "possession in the popular sense denotes a state of fact of exclusive physical control". See his treatise on Possessory Liens in English Law, page 2. See also Pollock and Wright in their Essay on Possession in the Common Law, page 119. Drawing the same distinction they say that "physical possession" may be generally described by stating that 108 834 "when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control. " This would seem exactly to meet the case of Dwarkadas Khetan. Possession is an ambiguous term. The law books divide its concept into two broad categories, (1) physical possession or possession in fact and (2) legal possession which need not coincide with possession in fact. The offending form with which we are concerned draws the same broad line. But even on the factual side of the border niceties creep in and so the possession of a servant is called custody rather than possession. But what of an agent ? If a man lives abroad over a period of years and leaves his house and furniture in charge of an agent who has the keys of the house and immedi ate access to and physical control over the furniture, it would be difficult to say that the agent was not in physical possession. It is true the legal possession would continue to reside in the owner but the actual physical possession would surely be that of the agent. And so with a del credere agent, because such a person is the agent of the seller only up to a point. Beyond that he is either a principal or an agent of the buyer. This distinction was discussed by one of us in the Nagpur High Court in Kalyanji Kuwarji vs Tirkaram Sheolal(1) and was accepted by the Madras High Court in Kandula Radhakrishna Rao vs The Province of Madras(2). But we need not go into all this. Here is an Order which is to affect the business of hundreds of persons, many of whom are small petty merchants and traders, the sort of meni who would not have lawyers constantly at their elbow; and even if they did, the more learned their advisers were in the law the more puzzled (1) A.I.R. 1938 Nag. (2) 835 they would be as to what advice to give,for it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding. In a penal statute of this kind it is our duty to interpret words of ambiguous meaning in a broad and liberal sense so that they will not become traps for honest, unlearned (in the law) and unwary men. If there is honest and substantial compliance with an array of puzzling directions, that should be enough even if on some hypercritical view of the law other ingenious meanings can be devised. In our opinion, Dwarkadas Khetan could, in the circumstances given above, be described, without any straining of language, as the person to whom the goods were actually delivered. It follows the conviction on this count cannot stand. We would like to add that in any event, even if ultra technical notions regarding the concept of possession were to be incorporated into the case, it would be wrong to say that there had been anything beyond a technical and unintentional breach of the law. The facts are truly and accurately given according to the popular and natural meaning of the words used; nothing was hidden. The goods did reach the quotaholder in the end, or rather his proper agent, and we cannot see what anyone could stand to gain in an unauthorised way over the very natural mistake which occurred owing to what seems to have been a time lag in the consequences of a change of agency. So, even if there was a technical breach of the law, it was not one which called for the severe strictures which are to be found in the trial court 's judgment and certainly not for the savage sentences which the learned Magistrate imposed. In the High Court also we feel a nominal fine would have met the ends of justice even on the view the learned Judges took of the law. The charge on the second count relating to the 6 bales is a similar one and the facts follow the same pattern. They have been detailed in the High Court 's 836 judgment, so it is not necessary to do more than outline them here. The quota holder here is Beharilal Bairathi. In this case also, Dharsi Moolji paid Dwarkadas Khetan for the goods and the Mills sent the bales to Dharsi Moolji for delivery in the same truck as the 13 bales. Dharsi Moolji refused to accept these bales also, so they were deposited in the Dady Seth godown along with the other thirteen. Dwarkadas Khetan & Company has been entered as the person to whom delivery was made. For the reasons given above, we hold that this was a true and accurate return. The appeal is allowed. The conviction and sentence in each of the four cases is set aside. The fines, if paid, will be refunded. Appeal allowed. Agent for appellants Nos. 1, 2 & 4: Rajinder Narain. Agent for appellant No. 3: Ganpat Rai.

The plaintiff filed a suit against his brothers who had for merly constituted a joint family for a declaration that the partnership which had been formed by them after they ceased to be joint in respect of a sugar mill stood dissolved on May 13, 1944, on which date one of the brothers had filed an earlier suit for dissolution of the partnership. The earlier suit had been dismissed for default. The plaintiff in the present suit also prayed for a decree for accounts from defendants I and 2 as well as for the appointment of a Receiver. The trial court decreed the suit, ordered winding up and appointed a Commissioner. It also directed the accounts prayed for. Before the High Court Kanshi Ram who had not filed a written statement and against whom the proceedings in the trial court had been ex parte contended that the suit was barred by limitation and in any event he should not be called upon to account. The plaintiff contended that the suit was one for distribution of the assets of a dissolved firm and was not barred by limitation. The High Court while noticing that the plea of limitation taken by one of the parties was raised before it for the first time, held that by reason of section 3 of the Limitation Act it was bound to take notice of the bar of limitation and dismissed the suit. Having decided Kanshi Ram 's plea the High Court passed consequential orders with regard to the several appeals by the other defendants. On appeal it was contended in this Court that the question of limitation which was not raised even in the grounds of appeal before the High Court was a mixed question of fact and law and it should not have been entertained by the High Court. Hold, that the suit for dissolution filed on May 13, 1944, had ended in a dismissal for default, and as such no date 317 of dissolution of the partnership as contemplated by 0.20, r. 15, of the Code of Civil Procedure had been fixed by the Court; the plaint could not be construed as the notice contemplated by section 43 of the Partnership Act, to terminate the partnership. Even on the assumption that the summons accompanied by the plaint could be said to be the service of notice for dissolution of the partnership, the date of dissolution could only be the date on which the last of the partners was served. With all these questions of fact to be investigated, the High Court had committed an error in treating the question of limitation as purely one of law and allowing it to be raised at the hearing for the first time before it, at the instance of a party who had not filed a written statement and raised an issue on the question before the trial court.

Appeal No. 1854 of 1992. From the Judgment and Order dated 18.12.1990 of the Kerala High Court in M.F.A. No. 800 of 1990. M.L. Verma, V.J. Francis, V. Subramanian and Padmakumar for the Appellant. P.S. Poti and R. Sasiprabhu for the Respondent. The Judgment of the Court was delivered by MOHAN, J. This appeal by special leave is directed against i.e. judgment of the High Court of Kerala in M.F.A. No. 800/90 dated 18.12.90. The short facts leading to this appeal are as under: The respondent Hotel is situated in Kaloor, Cochin 17. It is a commercial establishment. In July, 1985 this establishment obtained a Bar licence whereupon a Bar was started. After running the business for some time it was closed down with effect from 31.3.88. The Insurance Inspectors of the appellant verified the records of the respondent establishment on 29.9.87, 9.10.87 and 19.10 87. It was reported that the employment strength of the respondent establishment including Chembaka Restaurant and Mayuri Bar was more than 19 as on 17.7.85. Therefore, it was treated as covered under the (hereinafter referred to as the Act) with effect from 11.7.85 provisionally. The fact of coverage was intimated to the respondent by notice dated 21.3.88. Since the final date of coverage could be decided only after verifying all the records pertaining to the date of functioning of the establishment, the respondent was requested to produce all the records such as attendance register, wage register, ledgers etc. from the date of starting of the establishment. The respondent was also called upon to start 222 compliance under the Act with effect from 11.7.85. But there was no compliance. Hence, a notice was issued in Form C 18 dated 26.3.88 along with a draft order for contribution amount of Rs. 49,399.75 which was assessed under section 45 A of the Act for the period 11.7.85 to 313.88. Though the respondent was afforded an opportunity to appear before the officer, it was not availed of However, a letter dated 13.7.88 was received but the explanations were not acceptable to the appellant. Subsequently, a detailed order dated 3.8.88 under section 45 A of the Act was passed calling upon the respondent to pay a contribution of Rs. 49,399.75 together with interest at 6 per cent, failing which it would be covered as an arrears of land revenue. Again, reminder was sent on 22.9.88. No reply was received. Hence, in order to recover the contribution under section 45 A of the Act, a claim in Form 19 was sent to the District Collector, Ernakulam on 31.10.88 requesting to recover the contribution for the period from 11.7.85 to 31.3.88. Challenging these proceedings the respondent filed an application under section 75 of the Act before the Employees ' Insurance Court, Alleppey. Inter alia it was contended that the applicant (respondent in this appeal) at no time employed 20 or more persons during the relevant time. The order was illegal because under section 45 A of the Act the respondent was entitled to a reasonable opportunity of being heard. That was not afforded. These contentions were refuted by the appellant. It was incorrect to state that on no occasion the respondent employed 20 or more workmen since the inspection report dated 8.12.86 clearly established to the contrary. The contention that no opportunity had been afforded before initiating the revenue recovery proceedings, was also denied in view of Form C 18 dated 23.6.88, show cause notice dated 3.8.88 and reminder dated 22.9.88. By its order dated 6th June, 1990 the Employees ' Insurance Court, Alleppey came to the following conclusion: "In the result, I can only uphold the assessment made by the ESI Corporation. But when the question of recovery is considered, certain other aspects cannot be ignored. The adhoc assessment itself was made by the opposite party after the 223 closure of the entire establishment. All the employees working in the establishment had left by that time after accepting the termination of their services. In respect of those employees who had already left, the ESI Corporation is now trying to recover contribution. Now the position emerges is that despite the collection of contribution it will be impossible to bring under coverage those employees, because, they are not at all available for coverage and for enjoying the benefits under the scheme. Therefore, even if the proceedings initiated earlier were sus tainable, so long as the employees are not available for the purpose of coverage, there is no meaning in collecting contribution alone. In these circumstances, I can only hold that the applicant had failed to comply with provisions of the ESI Act at the appropriate time. Therefore, according to me, after the closing of the establishment such recovery steps are not justified but only the prosecution as contemplated under sec. 85 of the ESI Act is attracted. Therefore, it is upto the ESI Corporation to decide whether any prosecution should be launched against the applicant for the contravention or noncompliance of the requirements of the ESI Act and Rules. ' Aggrieved by the same the appellant Corporation preferred an appeal in M.F.A. No. 800 of 1990. A Division Bench of the Kerala High Court by its order dated 18th December, 1990 posed the question for determination as to whether the appellant could proceed against respondent for realisation of contribution under the ESI scheme, after the closure of establishment. The High Court upheld the finding of Insurance Court that the respondent had failed to comply with the provisions of the Act at the appropriate time. However, it proceeded to hold that the respondent establishment was closed on 31.3.88. P3 notice calling upon the respondent to pay the contribution was only on 23.6.88. Since the scheme was made after the closure of the establishment, the appellant was not justified in proceeding against the respondent. In this view, it dismissed the appeal. It is under these circumstances, the ESI Corporation has come up by way of special leave to appeal. Mr; M.L. Verma, learned senior counsel for the appellant urges the 224 following: 1. The closure of the respondent establishment was on 31.3.88 but the liability with reference to contribution arose earlier. The demand is for the period 11.7.85 to 31.3.88. So long as the establishment is covered by the provisions of the Act it is not open to the respondent to circumvent its liability by contending that before actual recovery proceedings it had closed down. If the finding of the High Court is accepted it would be the easiest way to evade the provisions of the Act. In R.M. Lakshmanamurthy vs The Employees ' State Insurance Corporation, Bangalore, This Court has held that it is a beneficial piece of social security legislation in the interest of labour. Further, the provisions of the Act will have to be construed with that end in view in order to promote the scheme and avoid the mischief. Under section 26 of the Act all contributions are paid into a common fund. Such a fund will have to be administered for the purposes of the Act as indicated under section 28. Therefore, the employer cannot contend that he did not collect the employees ' contribution and hence, he cannot be called upon to pay. Thus the impugned judgment is wrong and is liable to be set aside. Per contra, Mr. P. Surbramanian Poti, learned senior counsel for the respondent would argue that the contention of the respondent throughout was that at no time it engaged 20 or more employees. Therefore, it was under the belief that the Act would not be applicable. In that belief the employer did not recover from the employees any contribution. Nor was the employer called upon during that relevant time to comply with the provisions of the Act. It was entirely due to the fault of the Officers of the appellant, the respondent did not make the contribution. In any event, the establishment had been closed down on 31.3.88. It will be unjust to enforce the provisions of the Act and to seek to recover contribution after the closure, more so, when the employees have settled their claims and have gone away. Certainly, such a situation is not con templated under the Act. From this point of view the judgment of the High Court is right and does not call for any interference. In order to appreciate the rival contentions, it would be useful to set 225 out the necessary legal background. The is an act for certain benefits to employees in cases of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. Section 1(4) makes it applicable to all factories, in the first instance ' Under sub section (5) of the said section, the Government may, by a Notification, extend the provisions of the Act to any other establishment or class of establishment; industrial, commercial, agricultural or otherwise. Admittedly, in this case, the hotel industry like that of the respondent has been notified under the Act. Under section 26, a fund called Employees ' State Insurance Fund is created by all the contributions paid under this Act, the purposes, for which it may be expended, are cataloged under section 28. Section 38 requires all employees in factories or establishments shall be insured. Section 39 talks of contribution. In respect of an employee it shall comprise of contribution payable by the employer (employer 's con tribution) and contribution payable by the employee. It is this contribution which has to be paid to the Corporation. Section 40 imposes the liability to pay contributions, in the first instance, on the principal employer. After such contribution the employee 's contribution could be deducted from his wages. Sub section (4) of section 40 is important. That says as follows: "(4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted." (Emphasis supplied) Therefore, this sub section puts the matter beyond doubt that there is an entrustment. In other words, the employer is a trustee. Under section 44 there is an obligation on the employer to furnish returns and maintain registers. The benefits available to the insured persons are stated in section 46: 1. Sickness 2. Maternity 3. Disablement 226 4. Injury 5. Medical treatment for and attendance on insured persons. Lastly, there is power to prosecute under section 85 which includes punishment for failure to pay contributions as well as for contravention of or non compliance with any of the requirements of the Act. In the above legal background we may analyse the factual situation. Two facts stare at us. The liability to contribution of the respondent employer relates to a period between 11.7.85 to 31.3.88. 2. The respondent establishment was closed on 31.3.88. The contention of the respondent that at no time there were 20 or more employees in his establishment has to be rejected because at no point of time the respondent sought an adjudication on this aspect. On the contrary, the inspections made by the officials of the appellant on 8.12.86, September 87 and October 87 state to the contrary. Therefore, we have to proceed on the basis that the provisions of the Act are applicable to the respondent establishment, since (i) it is a notified industry, (ii) in the establishment more than 20 employees were working at the relevant time. From the above provisions it is clear that from the date of his commencement of business, namely, 11.7.85, there was a liability to contribute. It has already been seen under section 40 the primary liability is his, to pay, not only the employer 's contribution but also the employee 's contribution. Therefore, he cannot be heard to contend that since he had not deducted the employee 's contribution on the wages of the employees, he could not be made liable for the same. The object of making a deeming entrustment sub section (4) of section 40 will be altogether rendered nugatory if such a contention were to be accepted. After all, when he makes employee 's contribution he is entitled to deduct from the wages. Therefore, by force of the application of the statutory provisions, the liability to contribute, during this relevant period, namely, 11.7.85 to 31.3.88, arose. There is no gain saying in that. Hence, we reject the arguments of Mr. Subramanian Poti, learned senior counsel for the respondent. From the above statutory provisions, it would be clear that from out 227 of the common fund maintained under section 26, the employees derive various benefits like sickness, maternity, disablement, injury, medical treatment for and attendance on insured persons. Therefore, it is a beneficial piece of social security legislation. As a matter of fact, this Court had occasion to consider the same in B.M. Lakshmanamurthy 's case (supra). At page 370, paragraph 16 it was held : "The Act is thus a beneficial piece of social security legislation in the interest of labour in factories at the first instance and with power to extend to other establishments. Provisions of the Act will have to be construed with that end in view to promote the scheme and avoid the mischief." Mr. M.L. Verma, learned senior counsel for the appellant is right in his submissions in this regard. The Insurance Court as well as the High Court have correctly upheld the demand for contribution. But it is rather strange to conclude that the demand could not be enforced against a closed business. If this finding were to be accepted it would not promote the scheme and avoid the mischief. On the contrary, it would perpetrate the mischief. Any employer can easily avoid his statutory liability and deny the beneficial piece of social security legislation to the employees, by closing down the business before recovery. That certainly is not the indentment of the Act. To hold, as the High Court has done, would set at naught all these beneficial provisions. It is equally fallacious to conclude that because the employees had gone away there is no liability to contribute. It has to be carefully remembered that the liability to contribute arose from the date of commencement of the establishment and is a continuing liability till the closure. The very object of establishing a common fund under section 26 for the benefit of all the employees will again be thwarted if such a construction is put. We cannot also accept the finding of the High Court that because Ext. P3 notice was issued on 23.6.88 after the closure of the respondent establishment on 31.3.88, the appellant was not justified in proceeding against the respondent. The proceeding for the recovery is of the dues of contribution which arose prior to the closure on 31.3 88. Therefore, it matters little when notice was issued, calling upon to pay the contribution. 228 In our considered view, such a notice is only a reminder to the employer to discharge his statutory obligation. For all these reasons, we have little hesitation in setting aside the impugned judgment of the High Court which in turn upholds the order of Employees ' State Insurance Court. The appellant will be entitled to proceed with the recovery proceedings in accordance with law. Accordingly, the appeal will stand allowed with costs. G.N. Appeal allowed.

Section 32 (1) (ii) of the Income Tax Act, 1961 provided for depreciation, while computing business income for purpose of income tax. It was allowed at a percentage of the written down value of certain capital assets employed in the business. Section 35(1) provided for the deduction of four types of expenditure on scientific research and the deduction provided under 35 (1 ) (iv) was to the effect that in respect of any expenditure of a capital nature on scientific research related to the business carried on by the assessee, such deduction as may be admissible under the provisions of sub section (2). Sub Section (2) provided that, for the purposes of clause (iv) of sub section (1), one fifth of the capital expenditure incurred in any previous year should be deducted for that previous year; and the balance of the expenditure should be deducted in equal instalments in each of the four immediately succeeding previous years. It further provided in clauses (iv) and (v) that where a deduction was allowed for any previous year under this section in respect of expenditure represented wholly or partly by an asset, no deduction should be allowed under clauses (i), (ii) and (iii) of sub section (1) of section 32 for the same previous year in respect of that asset; and where the asset mentioned in clause (ii) was used in the business after it ceased to be used for scientific research related to that business, depreciation should be admissible under clauses (i), (ii) and (iii) of sub section (1) of Section 32. Explanation 1 to Section 43(1) also provided that where an asset was used in business after it ceased to be used for scientific research related to that business and a deduction had to be made under clause (i), clause (ii) or clause (iii) or sub section (1) or sub section (1A) of Section 32 in respect of that asset, the actual cost of the asset to the assessee, as reduced by the amount of any deduction allowed under clause (iv) of sub section (1) of Section 35. The provisions of Section 32(1) (ii) and Section 35(2) (1) (iv) and (v) read with Explanation 1 to Section 43(1) virtually repeated the provisions contained in Section 10(2) (vi) and 10(2) (xiv) of the 1922 Act. In 1968, there was an amendment in the provisions of Section 35(2). The effect of the amendment was that the entire amount of capital expenditure incurred in relation to scientific research was allowed as a deduction in one year, instead of being spread over a period of five years as was the position earlier. Thereafter, the Finance Act, 1980 made an amendment with retrospective effect from 1.4.1962, i.e. from the date of commencement of Act of 1961 which provided under clause (iv) of Section 35(2), that where a deduction was allowed for any previous year under this section in respect of expenditure represented wholly or partly by an asset, no deduction should be allowed under clauses (i), (ii) and (iii) of sub section (1) of Section 32, for the same or any other previous year in respect of that asset. In the Writ Petitions filed before this Court on behalf of the asses sees it was contended that the allowances in respect of depreciation on the one hand and of capital expenditure on scientific research on the other are two totally different and independent heads of allowances; one was a notional allowance to provide for the wear and tear of a capital asset employed in the business as the years rolled by; and the other was an allowance for actual expenditure of a capital nature granted to give fillip to new industrial innovations and development of indigenous know how and techniques by proper planning on research and development by various business houses; and therefore there was nothing wrong in construing the statute as providing cumulatively for both types of deductions in respect of the same capital asset; that both the types of allowances were permissible under the statute except to the extent limited by clauses (iv) and (v) of Section 35 of the Act/Clauses (d) and (e) of the proviso to Section 10(2) (xiv) of the 1922 Act; that this interpretation of the statutory provisions was very clear. patent and unambiguous; that the retrospective amendment of the provision would impose unexpected and impossible burden on them over the years, jeopardise their solvency and lay them open to action by creditors and financial institutions and such an onerous burden was unreasonable and oppressive and the provision imposing such a burden violated the fundamental rights of the assessees under Articles 14 and 19(1) (g) of the Constitution that retrospective provisions may be permissible even in taxing statutes in certain special circumstances such as in the case of provisions clarifying the impact of a statute provision curing defective legislations in the light of the judicial decisions and the like but if the legislature chose to impose a totally new burden which was not at all in contemplation earlier and proceeded to give full retrospective effect thereto such an attempt should be struck down as unreasonable and discriminatory. that the amendment was not in the nature of a statutory clarification of an ambiguity but a totally new and fresh imposition sought to be unjustifiably given retrospective effect and that the statute did not intend one deduction to preclude other. On behalf of the Revenue it was contended that the deduction provided by Section 35 (1) (iv) was in the alternative to the deduction provided by clauses (i) (ii) and (iii) of sub section (1) and sub section (1A) of Section 32; if one was availed of the other was not available not only during the year or years in which the deduction under Section 35(1) (iv) was availed of but permanently; for the reason that if both were allowed to be availed of; it amounted to grant of 200% deduction viz., 100% under Section 35(1) (iv) and another 100% under sub sections (1) and (1A) of Section 32, and this was totally outside the contemplation of the Act. Dismissing the writ petitions, this Court, HELD: Per Ranganathan J. (For himself and Ramaswami, J.) 1.1. There is a fundamental, though unwritten, axiom that no legislature could have at all intended a double deduction in regard to the same business outgoing; if it is intended it will be clearly expressed. In other words, in the absence of clear statutory indication to the contrary, the statute should not be read so as to permit an assessee two deductions both under Section 10(2) (vi) and section 10(2) (xiv) under the 1922 Act or under Section 32 (i) (ii) and 35(2) (iv) of the 1961 Act qua the same expenditure. The use of the words "in respect of the same previous year" in clause (d) of the proviso to Section 10(2) (xiv) of the 1922 Act and Section 35 (2) (iv) of the 1961 Act is not a contra indication which permits a disallowance of depreciation only in the previous years in which the other allowance is actually allowed. The purpose of the words above referred to is totally different. That the two allowances cannot be and are not intended to be granted in respect of the same asset or expenditure, can be easily seen from the limitation imposed by these words. Where the capital asset is one of the nature specified, the assessee can get only one of the two allowances in question but not both. For determining which of the two allowances should be granted that which the assessee chooses or that which the assessing officer might prefer, it is necessary for the statute to define this and this is what has been done by the rider in clause (d) of the proviso to Section 10(2) (xiv) of the 1922 Act Section 35(2) (iv) of the 1961 Act. It mandates that the asssessee should, in such a case, be granted the special allowance for scientific research and not the routine and annual one for depreciation. Clause (d) of the proviso to Section 10(2) (xiv) of the 1922 Act and Section 30(2)(iv) of the 1961 Act thus fall into place as an appropriate and necessary provision. The provision contained in clause (e) of the proviso to Section 10(2) (xiv) of the 1922 Act, re enacted in Explanation to Section 43(1) of the 1961 Act, also reinforces this line of approach. Therefore, it is not correct to say that the allowances under the two provisions are by nature unconnected with, and indpendent of, each other. [171 D H; 172 A E] 1.2. Under the provisions of the statute as they stood earlier, the assessees could not have claimed continued grant of depreciation after the expiry of five previous years before the 1968 amendment and after the expiry of the first year after the 1968 amendment, even though the entire cost of the capital asset in question had been allowed to be written off completely against the business profits of those five previous years or one previous year as the case may be. It is impossible to conceive of the legislature having envisaged a double deduction in respect of the same expenditure even though it is true that the two heads of deduction do not completely overlap and there is some difference in the rationale of the two deductions under consideration. The last few words of the English statute, viz., "assets for any year of assessment during any part of which they were used by the person carrying on the trade for scientific research related to the trade" show that there is really no difference between the English and Indian Acts; the former also in terms prohibits depreciation only so long as the assets are used for scientific research. [169 F H; 171 B, C] 1.3. In the circumstances, it is clear that, even before the 1980 amendment, the Act did not permit a deduction for depreciation in respect of the cost of a capital asset acquired for purposes of scientific research to the extent such cost has been written off under Section 10(2) (xiv) of the 1922 Act/35(1) & (2) of the 1961 Act. Prior to 1968, such assets qualified for an allowance of one fifth of the cost of the asset in five previous years starting with that of its acquisition and during these years the assessee could not get any depreciation in relation thereto. In respect of assets acquired in previous year relevant to assessment year 1968 69 and thereafter, their cost was written off in the previous year of acquisition and no depreciation would be allowed in that year. This is clear from the statute. Equally, it is not envisaged, that depreciation could be allowed on them thereafter and also that it could be allowed starting with the original cost of the asset despite its user for scientific research and the allowances made under the 'scientific research ' clause. There was no difficult at all in the interpretation of the provisions. The mere fact that a baseless claim was raised by some over enthusiastic assessees who sought a double allowance or that such claim may perhaps have been accepted by some authorities is not sufficient to attribute any ambiguity or doubt as to the true scope of the provisions as they stood earlier. [173 E H; 174 A] C.I.T. vs Indian Telephone Industries Ltd., and C.l.T. vs Hico Products, (1991) 187 I.T.R. 517, overruled. Lohia Machines limited V. Union of India, S.C.; Alkali & Chemical Corporation of India Ltd, vs C.l.T., Cal.; C.l. T vs Indian Explosive Ltd., Cal.; C.I.T vs International Instruments P. Ltd., Kar. and Warner Hindustan Ltd. vs C.l.T., (1988) 171 I.T.R. 224 A.P., referred to. The assessees may have some possible case only if the earlier statutory provisions can be said to have been unambiguously in favour of the assessee and the 1980 amendment had radically altered the provisions to cast a new and substantial burden on the assessee with retrospective effect but there is no ambiguity. The 1980 amendment has effected no change at all in the provisions except to set out more clearly and categorically what the provision said even earlier. Thus, even without the amendment, the assessees cannot claim the depreciation allowance in question. Even if it is assumed that there was an ambiguity or doubt as to interpretation, that was retrospectively clarified by the legislature. Therefore, the validity of the amendment cannot be challenged. This is indeed beyond all doubt. [174 C G] Rai Ramkrishna vs State of Bihar, [1964] 1 S.C.R. 897;Asst. Commissioner of Urban Land Tax vs Buckingham & Carnatic Co. Ltd., ; ; Krishnamurthi & Co. vs State of Madras; , ; Hira Lal Rattan Lal vs Sales Tax Officer and Anr., (1973) 31 S.T.C. 178 and Shiv Dutt Rai Fateh Chand vs Union of India, (1984) 148 I.T.R. 644, referred to. Per Jeevan, Reddy, J. (Concurring) 1.1. A double deduction cannot be a matter of inference; it must be provided for in clear and express language, regard having to its serious impact on the revenues of the State. If the Legislature/Parliament wanted to provide for more than 100% deduction they would have said so, as they done in cases where they have provided for what is called "weighted deduction", vide Section 35(B) of the Act of 1961. It is not possible to agree that while introducing clause (xiv) in sub section (2) of Section 10 of the 1922 Act consequent on the introduction of Section 20(4) in the U.K. finance Act, 1944, the Indian Legislature as also the Parliament made a conscious departure from the English Amendment with the idea of providing an additional incentive over and above the deduction on account of depreciation, to induce the Indian assessees to invest more in scientific research. The underlying reason in clause (iv) of Section 35(2) of Act of 1961 providing that during the years or year in which the assessee avails of the deduction under Section 35(1) (iv) he should not avail of the deduction on account of depreciation provided by clauses (i), (ii) and (iii) of sub section (1) and sub section (1A) of Section 32 is to ensure that the assessee does not get double deduction for example, where the asset was acquired prior to April 1, 1957, the deduction under Section 35(1) (iv) would be allowed in five consecutive years. If during the very five previous years, depreciation under the aforementioned provisions is also allowed, the assessee would obtain, at the end of five years, a double depreciation i.e., 100% under Section 35 and almost 100% under Section 32. (In many cases, the rate of depreciation under Section 32 is 20% or even higher). If such a course was barred by clause (iv) during the initial five years, it would not be reasonable to say that same thing can be achieved by claiming the deduction after the expiry of five years. If both the deductions are in the alternative, as indicated by clause (iv), they must be understood as being in the alternative and not consecutive. It would be a rather curious thing to say (in the case of an asset acquired prior to April 1, 1967) that Parliament barred claim for depreciation under Section 32 even in the first year when only 20% of the cost of the asset is allowed as deduction under Section 35(1) (iv), it barred it in the second, third and fourth years, when the deduction had reached 40, 60 and 80 per cent but permitted it be claimed after the fifth year, by which year the entire 100% cost was allowed as a deduction. No express provision was necessary to say what is so obvious. The position after April 1. 1967 is no different. That the aforesaid view is the correct one is indicated by Explanation (1) to clause (1) of Section 43 [the corresponding provision in the 1922 Act being sub clause (e) of clause (xiv) of Section 10(2) of 1922 Act]. [177 H; 178 A E] 13. The amendment of Section 35(2) in 1980 is merely clarificatory in nature. It makes explicit what was implicit in the provisions. question of its constitutionality, therefore, does not arise. Though purporting to be retrospective, it does not take away any rights which had legally vested in the assessees. [180 B] Commissioner of Income Tax vs Hico Products Pvt. Ltd, , overruled. None of the assessments relating to any of the assessment years in question has become final. They are pending at one or the other stage and in one or the other forum. Since the amendment under challenge merely makes explicit which was implicit in the unamended clause, there is no question of any right vesting in the assessee and its being taken away. [180 H; 181 A]

vil Appeal Nos. 4068 70 of 1989 etc. 9 From the Judgment and Order dated 26.8.88 of the Cen tral Administrative Tribunal, Bangalore in Appln. 99 1 993 of 1988. For the appearing parties: G. Ramaswamy, Additional Solicitor General, Anil Dev Singh, 277 U.R. Lalit, C.V. Subba Rao, T.C. Sharma, Ms. A. Subhashini, C.S. Vaidyanathan, S.R. Setia, S.R. Bhat, Mrs. V.D. Khanna, R. Ramachandran, N.B. Bhat, Altar Ahmed, and S.K. Bhattacha rya. The Judgment of the Court was delivered by DUTT, J. These special leave petitions have been heard at length and elaborate submissions have been made on behalf of the parties at the preliminary hearing and, accordingly, we grant special leave in all these matter and proceed to dispose of the same on merits. These appeals have been preferred by the Union of India and some erstwhile Emergency Commissioned Officers (for short 'ECOs ') and Short Service Commissioned Officers (for short 'SSCOs ') and directed either against the judgment of the learned Single Judge of the Calcutta High Court or against the judgment of the Central Administrative Tribunal, Bangalore. The Tribunal has struck down the impugned rules, namely, rule 3(2)(d) of the Indian Forest Service (Regula tion of Seniority) Rules, 1968, hereinafter referred to as 'IFS (Regulation of Seniority) Rules, 1968 ', and clauses (c) and (d) of sub rule (3) of rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to as 'IPS (Regulation of Seniority) Rules, 1954 ', as ultra vires Articles 14 and 16 of the Constitution of India and has directed the Government of India to assign fresh years of allotment to the ECOs and SSCOs, who were some of the respondents before the Tribunal. Before the Calcutta High Court, rule 3(2)(d) of the IPS (Regulation of Seniority) Rules, 1954 was involved and the High Court on a construction of that rule allowed the writ petition of the respondents and set aside the impugned order relating to the year of allotment of ECOs and SSCOs. The period between 1.11. 1962 and 10.1. 1968 is marked by three events, namely, Indo Chinese War followed by Indo Pakistan War and the proclamation of emergency. These ECOs and SSCOs voluntarily entered the Armed Forces of the Union of India at a time when the security of the nation was in peril due to external aggression. As they were engaged in defending the country by accepting the war service, they did not get any opportunity to enter into civil services. The Central Government assured them that after the cessation of emergency, they will be rehabilitated in civil life so that they might not 278 suffer on account of their rendering services to the nation. The grievance of the respondents who have been recruited to Indian Forest Service or the Indian Police Service from State Services is that although the ECOs or SSCOs, have been recruited in the said All India Services after the respond ents, yet their year of appointment has been fixed earlier than the year of allotment of the respondents. At this stage, we may refer to the impugned rules. Rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1986 provides as follows: "3(2). The year of allotment of an officer appointed to the Service shall be (a). . . . . . (b). . . . . . (c). . . . . . (d) Where an officer is appointed to the Service in accordance with rule 7A of the Recruitment Rules, deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of his commission where there was only post commission training according as he qualified for appointment to the Service in his first or second chance, as the case may be, having been eligible under regulation 4 of the Indian Forest Service (Appointment by Competitive Examination) Regulations, 1967. Explanation. If an officer, who qualified himself for appointment to the Service in a particular year, could not be so appointed in that year on account of non availability of a vacancy and is actually appointed in the next year, then his year of allotment would be depressed by one year. He shall be placed above all the officers re cruited under Rule 7A of the Recruitment Rules and who have the same year of allotment. " Rule 3(2)(d) refers to rule 7A of the Recruitment Rules which provides, inter alia that till January 28, 1974, 20 per cent of the per 279 manent vacancies in the Indian Foreign Service to be filled by direct recruitment in any year shall be reserved for being filled by ECOs and SSCOs of the Armed Forces of the Union of India, who were commissioned after November 1, 1962 and who have been released from the Armed Forces after a spell of service. Clauses (c) and (d) of sub rule (3) of rule 3 of IPS (Regulation of Seniority) Rules, 1954 provides as follows: "3(3)(a) . . . . . (d) . . . . . (c) The year of allotment of an offi cer appointed to the Service in accordance with rule 7A of the Indian Police Service (Recruitment) Rules, 1954, shall be deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of his commission where there was only post commission training according as he qualified for appointment to the Service in his first or second chance, as the case may be, having been eligible under rule 4 of the Indian Police Service (Appointment by Competi tive Examination) Regulations, 1955. Explanation. If an officer, who qualified himself for appointment to the Service in a particular year could not be so appointed in that year on account of non availability of a vacancy and is actually appointed in the next year then his year of allotment would be depressed by one year. He shall be placed above all the officers recruited under Rule 7A of the Recruitment Rules and who have the same year of allotment. (d) The year of allotment of an offi cer appointed to the Service in accordance with rule 7A of the Indian Police Service (Recruitment) Rules, 1954, having been eligi ble under the second proviso to sub regulation (iii) of Regulation 4 of,the Indian Police Service (Emergency Commissioned and Short Service Commissioned Officers) (Appoint 280 ment by Competitive Examination) Regulations, 1971, shall be deemed to be the year in which he would have been so appointed at his first or second attempt, after the date of joining pre commission training or the date of his Commission where there was only post comission training and also after the lapse of as many years as would have been necessary for him to complete his studies, in the normal course, for the award of the educational qualifica tions prescribed for direct recruitment to the Indian Police Service according as he quali fied for appointment to the Service in his first or second chance as the case may be." Both the above rules, namely, IFS (Regulation of Senior ity) Rules, 1968 and IPS (Regulation of Seniority) Rules, 1954 have been framed under All India Services Act, 1954, hereinafter referred to as 'the Act '. The Act, before it was amended, conferred power on the Central Government to make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Services. No power was, however, conferred by the Act on the Central Government to frame rules with retrospective effect. The impugned rules, namely, rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1968 and clauses (c) and (d) of sub rule (3) of rule 3 of IPS (Regulation of Seniority) Rules, 1954 are admittedly retrospective in operation. It is now a settled principle of law that if the statute under which a rule is framed does not confer on the authority concerned the power to make such a rule with retrospective effect, the authority will have no power to frame any rule with retro spective effect. The impugned rules, with which we are concerned, have been made by the Central Government with retrospective effect, although there was no such power conferred by the Act in that regard. The All India Services (Amendment) Act, 1975 has been enacted by Parliament for the purpose of validating the impugned rules. By section 2 of the Amendment Act, a new sub section (1 A) has been inserted after sub section (1) of section 3 of the Act, which has been referred to as "the principal Act" in the Amendment Act. Sub section (1 A) pro vides as follows: "(1 A). The power to make rules conferred by this section shall include the power to give retrospective effect from a 281 date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the inter ests of any person to whom such rule may be applicable. " The provision for validation is contained in section 3 of the Amendment Act and it reads as follows: "3. No rule made, or purporting to have been made, with retrospective effect, under section 3 of the principal Act before the commencement of this Act shall be deemed to be invalid or ever to have been invalid merely on the ground that such rule was made with retrospective effect and accordingly every such rule and any action taken or thing done thereunder shall be as valid and effective as if the provisions of section 3 of the principal Act, as amended by this Act, were in force at all material times when such rule was made or action or thing was taken or done. " The ECOs and SSCOs, who are some of the appellants, after demobilisation of the military emergency service, have been appointed in the Indian Police Service and the Indian Forest Service in 1969. In view of their past service in the army, which they had voluntarily joined for the defence of the country during the period between 1.11. 1962 and 10.1. 1968, the impugned rules were framed providing for the year of allotment of such officers appointed in the Indian Police Service or in the Indian Forest Service with retrospective effect from the date they would have been appointed at their first or second attempt after the date of joining pre com mission training or the date of their commission where there was only post commission training. Thus, even if an officer has been appointed in an All India Service in 1969 in a regular manner after being selected on the basis of the result of the competitive examination in 1969, his year of allotment will be one or two years after his joining the pre commission training in the army service. Suppose, an officer, after having been selected for the army service, joined his pre commission training in 1963. In 1963 he was, therefore, eligible for taking a competitive examination for being recruited to an All India Service. If he was not successful, he would get a second chance in the next year, that is, in 1964. If, after his release from the army in 1968, he took the competitive examination and successfully competed in such examination and was selected for appoint ment in the first chance. according to the impugned rules, his 282 year of all allotment would be 1963. If he was either not successful in his first attempt or did not avail himself of the same, he would have another chance to compete in the examination for recruitment in an All India Service in the next year, that is, in 1969 and if he was successful and appointed, his year of allotment would be 1964. In other words, and impugned rules give weightage to ECOs and SSCOs of the past services rendered by them in the emergency army service. It has been already noticed that the Tribunal has struck down the impugned rules as ultra vires the provisions of Articles 14 and 16 of the Constitution. According to the Tribunal, the impugned rules are discriminatory in nature without any reasonable justification therefore and thus offends against the provisions of Articles 14 and 16 of the Constitution. The same contention has been advanced on behalf of the respondents before us. It has not been disput ed before the Tribunal and also before us, that the ECOs and SSCOs formed a definite class, distinct from the respondents or other officers of Indian Forest Service and Indian Police Service. In other words, it is the admitted position that the classification of ECOs and SSCOs is rounded on an intel ligible differentia which distinguishes them from the re spondents and other officers of Indian Police Service and Indian Forest Service. It has, however, been strenuously 'urged that the differentia on which the classification is rounded is lacking in rational relation to the object sought to be achieved by the impugned rules and, as such, it does not satisfy the test of reasonable classification as contem plated by Article 14 of the Constitution. This is also the view of the Tribunal. We are unable to accept the contention. The impugned rules have been framed with a view to giving weightage to the ECOs and SSCOs in recognition of their past services in the army during the period of emergency. We fail to under stand why the classification has no rational relation to the objects sought to be achieved by the impugned rules. The classification has been made only for the purpose of compen sating the ECOs and SSCOs for their lost opportunity because of their joining the army service and the impugned rules best subserve the purpose. Accordingly, we do not think that there is any merit in the finding of the Tribunal and also in the contention of the respondents that the impugned rules are violative of the provisions of Articles 14 and 16 of the Constitution. Both the High Court and the Tribunal have taken the view that although section 3 of the All India Services (Amend ment) Act, 1975 validates the impugned rules purporting to have been made with 283 retrospective effect, yet the impugned rules are invalid inasmuch as they prejudicially affect the interests of the respondents. Much reliance has been placed by the respond ents on the provision of the new sub section (I A) of sec tion 3(1) of the Act as inserted by section 2 of the Amend ment Act, 1975. Sub section (1 A) provides, inter alia, that no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable. The contention of the appel lants is that sub section (1 A) is itself not retrospective in operation and, as such, has no application to the im pugned rules which are retrospective in operation, that is, before sub section (1 A) was inserted in section 3. It is, however, difficult to accept the contention of the appellants that sub section (i A) is only prospective and does not apply to the impugned rules which are retro spective in operation. It has been already noticed that the impugned rules have been validated with retrospective effect by section 3 of the Amendment Act which, in validating any rule made with retrospective effect under section 3 of the Act, provides that no such rule shall be deemed to have been invalid or ever to have been invalid merely on the ground that such rule was made with retrospective effect and, accordingly, every such rule and any action taken or thing done thereunder shall be as valid and effective as if the provisions of section 3 of the Act (principal Act), as amended by the Amendment Act, were in force at all material times when such rule was made or action or thing was taken or done. In view of section 3, it has to be deemed that provisions of Section 3, as amended by the Amendment Act, were in force at all material times when such rule was made. In view of the provisions of section 3 of the Amendment Act, sub section (1 A) which has been inserted in section 3 of the Act by way of amendment, must be deemed to be in force at the time the impugned rules were made. But the question is, even though sub section (1 A) is deemed to have been there at the time the impugned rules were framed with retro spective effect, whether the impugned rules prejudicially affect the interests of the respondents. It is urged on behalf of the respondents that the im pugned rules take away the vested rights of the respondents and, consequently, prejudicially affect their interests. Accordingly, it is submitted that the impugned rules are illegal and cannot operate retrospectively in the face of the provision of sub section (1 A). This contention does not at all impress us. The respondents have been given a partic ular seniority in accordance with the relevant rules. The seniority of the respondents is not taken away or interfered with by the impugned rules. The year of 284 allotment of the respondents remains the same and is not altered to their prejudice. The impugned rules only provide for giving weightage to the ECOs and SSCOs for their past services in the army during the emergency period and their year of allotment will be determined in accordance with the impugned rules. It is, however, complained that by giving the ECOs and SSCOs a year of allotment which is prior to the year of allotment of the respondents, the respondents have become their juniors and their (respondents) chances of promotion are seriously affected. At this stage, we may also notice the contention of Mr. Raju Ramachandran, learned Counsel appearing on behalf of some of the respondents. It is submitted by the learned Counsel that as the respondents have acquired a particular seniority, section 3 of the Act as amended, if read as suggested by the army officers, would contravene the funda mental rights of the respondents. This extreme contention is not sustainable on the face of it, for even assuming that the seniority of the respondents or their chances of promo tion are affected by the impugned rules, surely it cannot be said that there has been a contravention of the fundamental rights of the respondents. Nobody has any fundamental right to a particular seniority or to any chance of promotion. It is not the case of respondents that because of the impugned rules their cases for promotion will not be taken into consideration by the authorities. The decision in A. Janard hana vs Union of India; , has no manner of application to the facts and circumstances of the instant cases. In that case, this Court has laid down that it is open to the Government to retrospectively revise service rules, it the same does not adversely affect vested rights. Further, it has been observed as follows: "After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market years after promotee was inducted in the service comes and challenges all the past recruitments made before he was born in service and some decisions especially the ratio in Jaisinghani 's case as interpreted in two B.S. Gupta 's cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted. When the promotee was promoted and was render ing service, the direct recruit may be a schoolian or college. going boy. He emerges from the education institu 285 tion, appears at a competitive examination and starts challenging everything that had hap pened during the period when he has had noth ing to do with service. " We have already pointed out that the impugned rules do not affect the vested rights of the respondents adversely. In Janardhana 's case, this Court was dealing with the ques tion of seniority of promotees vis a vis fresh recruits from the market and observed that when the promotee was promoted and was rendering service, the direct recruit might be a schoolian or college going boy. In the instant cases before us, the dispute is not between promotees and direct re cruits, the latter having no past services to their credit. The ECOs and SSCOs are not in the position of direct re cruits, for they have a record of past services in the army which have been taken into consideration for fixing their year of allotment in accordance with the impugned rules. So, Janardhana 's case has no manner of application to the facts and circumstances of the instant case before us. It is not that for the first time by impugned rules, the past services of the ECOs and the SSCOs have been taken into consideration for the purpose of giving them their year of allotment with retrospective effect, that is to say, on a date earlier than their actual appointment in the Indian Police Service or in the Indian Forest Service, as pointed out by Mr. G. Ramaswamy, learned Additional Solicitor Gener al appearing on behalf of the Government appellants. The learned Additional Solicitor General has drawn our attention to the notings in the Government files for the purpose of showing the Government policy to rehabilitate the ECOs and SSCOs in All India Services, Central Services and State Services in order to ensure good response and to provide sufficient incentives for those who offered themselves for emergency commissions. These, notings start from November 17, 1962. It is not necessary for us to make a particular reference to the notings in the Government files. Suffice it to say that in view of the voluntary offer of services by the of youngmen our country to defend the country against foreign aggression, the Government took a very sympathetic view and took steps to compensate them after their discharge from the Emergency Commission Service, for the opportunity lost by them in joining the All India Services. One thing which is very significant to be mentioned here that although their past services were taken into consideration, the Government did not relax the minimum qualifications required for the All India Services. These ECOs and SSCOs had to appear in the competitive tests held by the Union Public Service Commission and they were appointed only 286 after they become successful in such tests. In this connection, we may refer to the Office Memoran dum dated January 29, 1966 providing for the rehabilitation of the ECOs and SSCOs recruited since November 1, 1962, after their release from the Armed Forces. The contents of the Memorandum are in the nature of executive instructions, but such executive instructions were followed and were given effect. Paragraph 6 of the Memorandum which deals with seniority and pay reads as follows: "6. Seniority and pay. Seniority and pay of those candi dates who are appointed against the reserved vacancies in the All India and Central Serv ices would be determined on the assumption that they entered service/post at the first opportunity they had after joining for pre Commission training. The principles regarding fixation of pay and seniority laid down in this Ministry 's Office Memorandum No. F. 35/11/62 Ests. (E) dated the 6th August, 1963 read with Office Memorandum of even number dated 15th February, 1965 (copy enclosed) will apply mutatis mutandis to determine the pay and seniority of ex Emergency Commissioned Officers/Short Service Regular Commissioned Officers appointed against the reserved vacan cies. " Thus, although the impugned rules were not in existence in 1966, the executive instructions as contained in the Office Memorandum conferred the same benefit as conferred by the impugned rules. In other words, it is apparent that the executive instructions have now been adopted as rules framed under the Act. Even otherwise, the Released Emergency Com missioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1967, framed by the Presi dent of India under the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India, contained similar provisions as to the seniority and pay of ECOs and SSCOs. Indeed, the provision of rule 6 relating to seniority of pay of ECOs and SSCOs is somewhat similar to paragraph 6 of the Office Memorandum. The date of commencement of the said rules is significant to be noticed. Under subrule (2) of rule 1, the said rules shall be deemed to have come into force with effect from January 29, 1966 which is the date of the said Office Memorandum. It is, therefore, manifestly clear that the executive instructions, as contained in the Office Memorandum, have been 287 incorporated in the form of rules framed under proviso to Article 309 and clause (5) of Article 148 of the Constitu tion of India. It is, however, submitted on behalf of the respondents that in view of the All India Services (Conditions of Serv ice Residuary Matters) Rules, 1960 (for short 'Residuary Rules '), the said rules framed under the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India will not apply to persons appointed to an All India Service. The contention, in our opinion, is not correct, for clause (a) of rule 2 of the Residuary Rules provides that the Central Government may make regulations to regulate any matters relating to conditions of service of persons ap pointed to an All India Service for which there is no provi sion in the rules made or deemed to have been made under the Act and until such regulations are made such matters shall be regulated in the case of persons serving in connection with the affairs of the Union of India, by the rules, regu lations and orders applicable to officers of the Central Services Class I. Admittedly, no rules under the Act were then framed in regard to the seniority of ECOs and SSCOs and/or granting them weightage for their past war service and, accordingly, the rules framed under the proviso to Article 309 and clause (5) of Article 148 of the Constitu tion of India applicable to Class I Officers of the Central Government were also applicable to ECOs and SSCOs relating to their seniority in the All India Services. It is urged on behalf of the appellants that while the benefit of weightage is being conferred on the discharged ECOs and SSCOs way back from 1966, the writ petitions of the respondents should have been dismissed on the ground of inordinate delay and laches. In support of this contention, some decisions have been cited by the appellants. Similarly, the respondents have also placed reliance on some other decisions of this Court. We do not think that after the writ petitions were entertained by the Calcutta High Court and by the Tribunal and disposed of on merits, it will be proper at this stage to dismiss the writ petitions on the ground of inordinate delay or laches. At the same time, it should be borne in mind that when a particular rule conferring bene fits on a particular group of Government servants in recog nition of their past services in the army, has been in operation for over twenty years, this Court will be very slow to interfere with the rule and deprive such group of Government servants of the benefits so conferred on them. This, however, does not mean that this Court will shut its eyes even though such rules are illegal and are violative of the provisions of Articles 14 and 16 of the Constitution. He have, however, held that the impugned rules do not offend against or infringe the provi 288 sions of Articles 14 and 16 of the Constitution. Now, we may consider the contention of Mr. Lalit, learned Counsel appearing on behalf of the respondents in the appeal arising out of S.L.P. (C) No. 10105, of 1988. These respondents were in the State Forest Service before 1966 and, subsequently, absorbed in the Indian Forest Serv ice under the Central Government. It is not disputed that unlike Indian Police Service, the Indian Forest Service was constituted much later in the year 1966. It is also not disputed that the respondents were the first batch of incum bents or entrants in the Indian Forest Service. It is sub mitted on.behalf of the respondents that the Indian Forest Service was constituted with the respondents as the initial recruits. We may now refer to some of the provisions of Indian Forest Service (Recruitment) Rules, 1966, hereinafter re ferred to as 'IFS Recruitment Rules '. Rule 3 of the IFS Recruitment Rules relates to the constitution of the Serv ice. It provides as follows: "3. Constitution of the Service. The Service shall consist of the following persons, name ly: (a) Members of the State Forest Service recruited to the service at its ini tial constitution in accordance with the provisions of sub rule (1) of rule 4; and (b) Persons recruited to the service in accordance with the provisions of sub rules (2) to (4) of Rule 4." So, under rule 3, the Service consists of members of the State Forest Service recruited to the Service at its initial constitution and persons recruited in accordance with the provisions of sub rules (2) to (4) of rule 4. The next relevant provision is rule 4. Sub rules (1) and (2) of rule 4, which are relevant for our purpose, are extracted below: "4. Method of recruitment to the Service. (1) As soon as may be after the commencement of these rules, the Central Government may re cruit to the Service any person from amongst the members of the State Forest Service ad judged suitable in accordance with such regu lations as the Central Government may make in consultation with the State Governments and the commission; 289 Provided that no member holding a post referred to in sub clause (ii) of clause (g) or rule 2 and so recruited shall, at the time of recruitment, be allocated to any State cadre other than the cadre of a Union Territo ry. (2) After the recruitment under sub rule (1), subsequent recruitment to the Serv ice, shall be by the following methods, name ly; (a) by s competitive examination; (aa) by selection of persons from amongst the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962, but before the 10th January, 1968 and who are released in the manner specified in sub rule (1) of rule 7A; (b) by promotion of substantive members of the State Forest Service. " It appears from sub rules (1) and (2) that there are four methods of recruitment. The first method is as con tained in rule 4(1), that is, the initial recruits from the State Forest Service. The other three methods of recruitment have been provided for in sub rule (2) including the re cruitment of ECOs and SSCOs who were commissioned during the period of emergency and released in the manner specified in sub rule (1) of rule 7A. It is ', however, clear that the recruits under sub rule (2) including the ECOs and SSCOs are recruited after the initial recruits under rule 4(1). Anoth er thing to be noticed is that the first examination for recruitment in the Indian Forest Service was held by the Union Public Service Commission in 1967. It is strenuously urged by Mr. Lalit that as the re spondents were the initial recruit or, in other words, the Indian Forest Service having been constituted with them, no person recruited under rule 4(2) of the IFS Recruitment Rules can be given seniority over the respondents who are the initial recruits. As the Indian Forest Service itself was constituted in 1966, there is no question of giving seniority to any recruits beyond 1966. It is urged by the learned Counsel that the first 1967 after the constitution of their service, there is also no question of lost opportu nity so far as the ECOs and SSCOs are concerned. It is submit 290 ted that if such examinations had started to be held from 1962, then it could be said that the ECOs and SSCOs had lost the opportunity of competing in such examinations in view of their joining the army. Accordingly, it is submitted that so far as the Indian Forest Service is concerned, the consider ation for giving weightage to the ECOs and SSCOs on the basis of their past services in the army does not apply. Attractive though the contentions are, we are unable to accept the same. It is true that the respondents were the initial recruits when the Indian Forest Service was consti tuted in 1966 and that the other recruits including the ECOs and SSCOs entered the service after the respondents, but this fact has very little bearing on the question of fixing the year of allotment having regard to the past services of such recruits. The respondents themselves were 'appointed to the Indian Forest Service in 1966, but they have been given the year of allotment as '1964 1/2 ', that is to say, long before the Service came into existence. If it is possible in the case of the respondents, we fail to understand why it is not possible in the case of other recruits including the ECOs and SSCOs. The grievance of the respondents is that the ECOs and SSCOs having been appointed subsequent to their appointment or, in other words, they having entered service after the respondents, they could not be given a year of allotment prior to that allotted to the respondents. This contention is again misconceived. So far as the respondents are concerned, the year of allotment has been granted to them on the basis of certain principles, as contained in rule 3 of IFS (Regulation of Seniority) Rules, 1968. The ECOs and SSCOs are, however, governed by the impugned rules and their year of allotment has been fixed as '1964 ' which is prior to the year of allotment of the respondents and, accordingly, the ECOs and SSCOs are senior to the respond ents in the Indian ForeSt Service. In the Indian Police Service also the year of allotment of the ECOs and SSCOs is prior to that of those respondents who are in that Service. We do not think that any invidious discrimination has been made between the ECOs and SSCOs on the one hand and the respondents on the other, both in regard to Indian Forest Service and Indian Police Service, as contended on behalf of the respondents. As soon as it is found that the ECOs and SSCOs have been classified into a distinct and separate class, and that such classification is reasonable, no objec tion can be taken to the year of allotment given to them in accordance with the impugned rules. After giving our anxious consideration to the respective contentions of the parties and after considering the different rules and regulations and also the fact that the ECOs and SSCOs had 291 voluntarily offered their services for the defence of the country during the period of emergency, disagreeing with the High Court and the Tribunal, we are of the view that no illegality has been committed by the Government in framing the impugned rules with retrospective effect. We hold that the impugned rules are quite legal and valid. For the reasons aforesaid, the impugned judgments of the High Court and of the Tribunal are set aside and all these appeals are allowed. There will, however, be no order as to costs in any of these appeals. R.N .J. Appeals allowed.

A preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 was made on 26.7.1963. The decla ration under Section 6 was duly notified on 16/18.1.1969. A Writ Petition was filed in the High Court challenging the declaration. The High Court took notice of the Land Acquisi tion (Amendment & Validation) Act, 1967, but held that the delay of 5 1/2 years from the date of the preliminary noti fication was unreasonable, and quashed the said declaration, relying on its own decision in Valji Mulji vs State, These appeals, by special leave, are against the High Court 's judgment. Allowing the appeals, HELD: 1. The validation provision came into force on 20th January, 1967. The position is now concluded and the reliance placed by the High Court on its decision cannot be sustained. [248E] Gujarat State Transport Corporation vs Valji Mulji Soneji & Ors., ; and State of Gujarat & Anr. vs Punjabhai Mathubai & Ors., , followed. The decision of the High Court is set aside and the declaration under section 6 of the Land Acquisition Act is sus tained. [248F]

Civil Appeals Nos. 1760 1763/69. Appeals by Special Leave from the Judgment and Decree dated 25 10 1967 of the Andhra Pradesh High Court in Civil Revision Application Nos. 342 345/64. Vepa P. Sarathi and A. V. Rangam for the Appellant. Ex parte for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The petitioner who lost before the Subordinate Tribunals and the High Court is the appellant in this appeal by special leave. Alleging that he was the landlord and that the respondents were his tenants in respect of certain lands in Bhommika village, the appellant filed petition before the Tehsildar, Pathapatnam under Section 13 of the Andhra Tenancy Act for the eviction of the respon 203 dents on the ground of default in payment of rent. The respondents pleaded that the lands were situated in an Inam Estate which had been taken over by the Government under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948, and that, they and their ancestors, who had occupancy rights were always in cultivating possession of the lands. It was also pleaded that after the taking over of the estate by the Government there was no longer any relationship of landlord and tenant between the petitioner and the respondents. The Tehsildar dismissed the petition for eviction on the ground, among others, that the respondents had occupancy rights in the land. The landlord preferred an appeal before the Revenue Divisional Officer, Tekkali. The Revenue Divisional Officer rejected the appeal on the ground that the petition for eviction was not maintainable since the question as to who was the lawful ryot in respect of any holding in an estate had to be decided by the Settlement Officer under Section 56(1)(c) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, and that the decision of such question was within the exclusive competence of the Settlement Officer. A revision petition filed before the High Court of Andhra Pradesh under Article 227 of the Constitution was dismissed by the High Court again for the reason that the question as to who was entitled to the grant of ryotwari patta had to be decided by the Settlement Officer under Section 56 of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act and that the decision of such question was within the exclusive jurisdiction of the Settlement Officer. The appellant has preferred this appeal by special leave of this Court. Shri Vepa P. Sarathi, learned Counsel for the appellant argued that the view expressed by the High Court regarding the exclusive jurisdiction of the Settlement Officer to decide the question as to who was the lawful ryot of a holding was not good law in view of the decision of a Full Bench of three Judges of the Andhra Pradesh High Court in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors. It is not disputed that the lands are situated in Bhommika village. It is not also disputed that Bhommika village was in Inam estate and that it was taken over by the Government under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act. The appellant claims that he is the lawful ryot of the lands in dispute and that the respondents are his tenants. On the other hand the respondents claim that they are the lawful ryots of 204 the holding. The question at issue between the parties therefore is, whether the appellant or the respondents are the lawful ryots of the holding. Under Section 56(1)(e) of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act "where, after an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer". Section 56(2) provides for an appeal to the Estates Abolition Tribunal against the decision of the Settlement Officer and further provides that the decision of the Tribunal shall be final and shall not be liable to be questioned in any Court of law. Prima facie, therefore, the question as to who is the lawful ryot of any holding, if such question arises for decision after an estate is notified, has to be resolved by the Settlement Officer and by the Estates Abolition Tribunal under Section 56 (1) (c) and 56(2) of the Andhra Pradesh Estates Abolition Act. The Andhra Pradesh Estates Abolition Act is a self contained code in which provision is also made for the adjudication of various types of disputes arising after an estate is notified, by specially constituted Tribunals. On general principles, the special Tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide disputes entrusted by the statute to them for their adjudication. Shri Vepa P. Sarathi 's submission was that Section 56(1) (c) did not enable the Settlement Officer to decide the question as to who was the lawful ryot of a holding every time such question arose and for all purposes but only when such question arose in connection with the matters dealt with by Section 55 and Section 56(1) (a) and (b). In other words the argument was that Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b) and that an enquiry into the question as to who was the lawful ryot of a holding under Section 56(1)(c) was permissible only for the purpose of identifying the person liable to pay the arrear of rent which had accrued in respect of the holding before the taking over of the estate. The submission of Shri Vepa P. Sarathi is supported by the decision of the Full Bench of the Andhra Pradesh High Court in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors. (supra). We are, however, unable to see any justification for restricting the scope of Section 56(1)(c) in the manner suggested by Shri Sarathi. We will briefly indicate our reasons for holding that the scope of Section 56(1) (c) is not to be restricted as was done by the Full Bench of Andhra Pradesh High Court in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors. (supra). We 205 are fortunately relieved of the necessity of considering the matter more elaborately in view of the fact that the decision in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors. on this part of the case has since been over ruled by a Full Bench of five Judges of the High Court of Andhra Pradesh in I. Munuswami Naidu (died) & Ors. vs R. Venkata Reddy & Ors. after a thorough and exhaustive consideration of the question. We may also add here that until the decision in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors., for several years it was understood that Section 56(1) (c) conferred complete and exclusive jurisdiction on the Settlement Officer to decide rival claims of ryots for the grant of ryotwari patta and Section 55 or 56(1)(a) and (b) were never understood as controlling Section 56(1)(c). A brief resume of the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act relevant for our present purpose is permissible here. As stated in the preamble the Act was enacted to provide for the repeal of the Permanent Settlement, the acquisition of the Rights of land holders in permanently settled and certain other estates and the introduction of the ryotwari settlement in such estates. Section 1(4) provides for the notification of estates and Section 3 enumerates the consequences of notifying an estate under Section 1(4) of the Act. In particular Section 3 (b) provides that the entire estate shall stand transferred to the Government and vest in them free of all encumbrances Section 3(c) provides that all rights and interests created in/or over the estate by the land holder shall cease and determine as against the Government. Section 3(d) empowers the Government to take possession of the estate but saves from dispossession any person who the Government considers is prima facie entitled to a ryotwari patta until the question whether he is actually entitled to such patta is decided by the Settlement officer in the case of a ryot or by the Settlement Officer and the Tribunal on appeal in the case of a land holder. Section 3(f) provides that the relationship of the landholder and ryot shall, as between them, be extinguished. Section 3(g) provides that ryots in the estate shall, as against the Government be entitled only to such rights and privileges as are recognised or conferred on them by or under the Act. Section 11 confers on every ryot in an estate the right to obtain a ryotwari patta in respect of ryoti land which was included or ought to have been included in the holding on the notified date. Sections 12, 13 and 14 confer on the land holder the right to obtain a ryotwari patta in respect of private land in a Zamindari, Inam and Under tenure estate respectively. Section 15(1) provides for enquiry by the Settlement Officer into claims 206 by a land holder for a ryotwari patta, Under Sections 12, 13 and 14. Section 15(2) provides for an appeal to the Tribunal from the decision of the Settlement Officer and it declares that the decision of the Tribunal shall be final and not liable to be questioned in any Court of law. Section 16 imposes on every person, whether a land holder or a ryot who becomes entitled to a ryotwari patta under the Act in respect of any land, the liability to pay to the Government the assessment that may be lawfully imposed on the land. Section 21 to 23 provide for the survey of estates, the manner of affecting ryotwari settlement and the determination of the land revenue. Sections 55 to 68 occur under the heading "Miscellaneous". Section 55 provides for the collection of rent which had accrued before the notified date. Section 56 provides for the decision of certain disputes arising after an estate is notified. It provides for the decision of a dispute as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is. The dispute is required to be decided by the Settlement Officer. Against the decision of the Settlement Officer, an appeal is provided to the Tribunal and the decision of the Tribunal is declared final and not liable to be questioned in any Court of law. Now the Act broadly confers on every tenant in an estate the right to obtain a ryotwari patta in respect of ryoti lands which were included or ought to have been included in his holding before the notified date and on the land holder the right to obtain a ryotwari patta in respect of lands which belonged to him before the notified date as his private lands. The Act makes express provision for the determination of claims by landholders for the grant of ryotwari patta in respect of the alleged private lands. If there is provision for the determination of the claims of a landholder for the grant of ryotwari patta in respect of his alleged private lands, surely, in an Act aimed at the abolition of intermediaries and the introduction of ryotwari settlement, there must be a provision for the determination of the claims of ryots for the grant of ryotwari patta. Section 56(1) is clearly such a provision. But in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors (supra) it was held that an enquiry as to who was the lawful ryot was permissible under Section 56(1) (c) for the limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other purpose. The conclusion of the Full Bench was based entirely on the supposed context in which the provision occurs. The learned Judges held that Section 56(1) (c) occurred so closely on the heels of Section 55 and Section 56(1)(a) and (b), that the applicability of Section 56(1)(c) must be held to be "intimately and integrally connected" 207 with those provisions. We think that the approach of the Full Bench was wrong. Apart from the fact that Section 55 and 56(1)(a), (b) and (c) occur under the heading "Miscellaneous", and, therefore, a contextual interpretation may not be quite appropriate, the Full Bench over looked the serious anomaly created by its conclusion. The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by land holders for the grant of ryotwari pattas., there is, if the Full Bench is correct, no provision for the adjudication of claims by ryots for the grant of ryotwari pattas. It would indeed be anomalous and ludicrous and reduce the Act to an oddity, if the Act avowedly aimed at reform by the conferment of ryotwari pattas on ryots and the abolition of intermediaries, is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding. The object of the Act is to protect ryots and not to leave them in the wilderness. When the Act provides a machinery in Section 56(1) (c) to discover who the lawful ryot of a holding has, it is not for the Court to denude the Act of all meaning by confining the provision to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation". Interpretation of a statute, contextural or otherwise must further and not frustrate the object of the statute. We are, therefore, of the view that Cherukuru Muthuyya vs Gadde Gopalakrishnayya & ors. (supra) was wrongly decided in so far as it held that ambit of Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b). We do not think it necessary to consider the matter in further detail in view of the elaborate consideration which has been given to the case by the later Full Bench of five Judges of the High Court of Andhra Pradesh in T. Muniswami Naidu (died) & Ors vs R. Venkata Reddi & Ors. (supra) except to add that to adopt the reasoning of the Full Bench of three Judges in Cherukuru Muthayya vs Gadde Gopalakrishnayya & Ors. would lead to conflict of jurisdiction and the implementation of the Act would be thrown into disarray. In this connection we may quote the observations of Subba Rao, Chief Justice, who said as follows in Appanna vs Sriramamurty. "Where a special tribunal, out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as is otherwise expressly provided or necessarily implied, that tribunal 's jurisdiction to determine those questions is exclusive. Under the 208 Act old rights were abolished and new rights were created. A lawful ryot is entitled to a patta, when a question arises whether a person is a lawful ryot or not, that question falls to be decided by the special Tribunal created by the Act". In view of the above discussion the appeal is dismissed. S.R. Appeal dismissed.

In December 1973, the Madras Legislature passed an Act known as the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 after obtaining the assent of the President. The State Act was amended by Act 16 of 1974 and the President 's assent was received on April 10, 1974. The provisions of the State Act were brought into force with effect from May 8, 1974. The State Act was repealed and the President 's assent to the repealing Act was given on September 6, 1977. The Act provided for the investigation in respect of a complaint of criminal misconduct against any 'public man by a Commissioner or the Additional Commissioner of Inquiries appointed for this purpose. The word 'public man ' had been given a specific connotation in section 2(c) of the Act and clearly excluded a Government servant. The appellant was the former Chief Minister of the State of Tamilnadu. On June 15, 1976 the Chief Secretary to the State Government requested the Central Bureau of Investigation to make a detailed investigation into certain allegations that the appellant and others were alleged to have abused their official position in the matter of purchase of wheat from Punjab. With the State Governor 's sanction a charge sheet was filed after investigation for the prosecution of the appellant under sections 161, 468 and 471 IPC and section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act for allegedly having derived pecuniary advantage to the extent of Rs. 4 to 5 lakhs for passing favourable orders in respect of some firms. The appellant applied for discharge under section 239 Cr. P.C. on the ground that the prosecution against him suffered from various legal and constitutional infirmities. On the application being rejected, the appellant applied to the High Court for quashing the proceedings and for setting aside the order of the Special Judge refusing to discharge him. The High Court rejected the applications. 255 In the appeals to this Court, it was contended on behalf of the appellant: (1) Even though the State Act was repealed, the provisions of the Central Acts having themselves been protanto repealed by the State Act when it was passed could not be pressed into service for the purpose of prosecuting the appellant unless these provisions were re enacted by the appropriate legislature. (2) It was contended that even assuming that the State Act had ceased to exist and the Central Acts applied, the appellant cannot be prosecuted under any of the sections of the Penal Code or the Corruption Act, because by virtue of the position that the appellant enjoyed as Chief Minister, there was no relationship of master and servant between him and the Government and he was acting as a constitutional functionary, and therefore could not be described as a 'public servant ' as contemplated by section 21(12) of the Penal Code. (3) The provisions contained in the State Act run counter to those of the Central Acts in respect of the following matters; (a) The procedure for investigation of the offences by a Central Agency as contemplated by the Corruption Act is dispensed with and is instead invested in a Commissioner appointed under the State Act. (b) The provisions under the Prevention of Corruption Act regarding the grant of sanction under section 197 of the Code to the accused is given a complete go by and instead a Commissioner is appointed to hold a regular inquiry for himself and then to submit his report. An accused who has to be tried under the State Act is thus deprived of the protection afforded to every Government servant regarding grant of a sanction by the appointing authority. Therefore the protection if any, given by the State Act is purely illusory, and (4) By virtue of the fact that the State Act has obtained the assent of the President, it will be deemed to be a dominant legislation, and therefore it would over rule the Central Acts. Dismissing the appeals, ^ HELD: 1. The scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State Legislatures. First, regarding the matters contained in List I, i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I. Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by article 254(1). Thirdly, so far as the matters in List II, i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. [263 D E] 2. In such matters repugnancy may result from the following circumstances: (i) Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. 256 (ii) Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with cl. (2) of article 254. (iii) Where a law passed by the State legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the lay may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List an entrenchment, if any, being purely incidental or inconsequential. (iv) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Art 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and over rule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to article 254. [263 F 264 D] 3. A careful analysis, therefore, of the various provisions of the State Act leads to the irresistible inference that the State Act was passed with a view to afford sufficient protection to a public man by enjoining a summary inquiry or investigation by a high and independent Tribunal of the status of a High Court Judge or a Senior District Judge to instil confidence in the people and to prevent public men from being prosecuted on false, frivolous and vexatious allegations. Although the ingredients of criminal misconduct as defined in section 5(1) (d) of the Corruption Act are substantially the same in the State Act as in the Central Acts but here also the punishment is much severer in the case of the State Act than the one contained in the Central Acts. It is, therefore, manifest that the State Act does not contain any provision which is repugnant to the Central Acts, but is a sort of complementary Act which runs pari passu the Central Act. [270 G 271 A] 4. Prima facie, there does not appear to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied: (i) That there is a clear and direct inconsistency between the Central Act and the State Act; (ii) that such an inconsistency is absolutely irreconcilable; (iii) that the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. [272D E] 5. (1) In order to decide the questions of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, 257 so that they cannot stand together or operate in the same field; (2) that there can be no repeal by implication unless the inconsistency appears on the face of the two statutes; (3) that where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results; (4) that where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field. [278 F H] Hume vs Palmer, ; ; Union Steamship Co. of New Zealand vs Commonwealth, ; ; Clyde Engineering Co. vs Cowburn, ; exhibit Parte McLean; , ; Zavarbhai Amaidas vs State of Bombay, [1955] 1 SCR 799; Ch. Tika Ramji & Ors. vs The State of U.P. & Ors. ; Shyamakant Lal vs Rambhajan Singh, ; Om Prakash Gupta vs State of U.P., ; ; Deep Chand vs State of UP & Ors. [1959] 2 Supp. SCR 8, Megh Raj & Ors. vs Allah Rakhia & Ors. AIR 1942 FC 27; State of Orissa vs M. A. Tulloch & Co. ; ; T. section Balliah vs T. section Rangachari; , ; referred to. Colin Heward 's Australian Federal Constitution Law 2nd Edn. Nicholas Australian Constitution 2nd Edn. p. 303 referred to. There can be no doubt that the State Act creates distinct and separate offences with different ingredients and different punishments and it does not in any way collide, with the Central Acts. On the other hand, the State Act itself permits the Central Act, namely, the Criminal Law (Amendment) Act to come to its aid after an investigation is completed and a report is submitted by the Commissioner or the Additional Commissioner. [279 A B] 6. Doubtless, the State Act is the dominant legislation but there are no provisions in the State Act which are irreconcilably or directly inconsistent with the Central Acts so as to over rule them. [279 C] The original section 29 of the State Act underwent an amendment which was brought about by Tamil Nadu Act 16 of 1974 which substituted a new section 29 for the old one. This amendment received the assent of the President on 10th April, 1974 and was published in the Tamil Nadu Government Gazette Extra ordinary, dated 16 April, 1974. Although the State Act was passed as far back as 30 December, 1973 it received the assent of the President on the 10 April, 1974 that is, on the same date as Act 16 of 1974. The Act was however brought into force on the 8 May, 1974 when the new section 29 which had already replaced the old section and had become a part of the statute. Therefore, for all intents and purposes the State Act cannot be read in isolation, but has to be interpreted in conjunction with the express language contained in section 29 of the State Act. The legislature has in unequivocal terms expressed the intention that the State Act which was undoubtedly the dominant legislation would only be "in addition to and not in derogation with any other law for the time being in force" which manifestly includes the Central Acts, namely, the Indian Penal Code, the Corruption Act and the Criminal Law (Amendment) Act. Thus, the Legislature about a month before the main Act came into force clearly declared its intention that there would be no question of the State Act colliding with the Central Acts referred to above. The second part 258 of section 29 also provides that nothing contained in the State Act shall exempt any public man from being proceeded with by way of investigation or otherwise under a proceeding instituted against him under the Central Acts. It is, therefore, clear that in view of this clear intention of the legislature there can be no room for any argument that the State Act was in any way repugnant to the Central Acts. [279 D 280 D] 7. The provisions of section 29 would be presumptive proof of the fact that there is no repugnancy between the State Act and the Central Acts nor did either the legislature or the President intend to create any repugnancy between these Acts as a result of which the criticism regarding the repugnancy is completely obliterated in the instant case and we, therefore, hold that the State legislature never intended to occupy the same field as covered by the Central Acts. [281 B] 8. So far as the first part of cl. (12) (a) is concerned, namely 'in the service of the Government undoubtedly signifies a relationship of master and servant where the employer employs the employee on the basis of a salary or remuneration. However, the second limb of the clause, 'in the pay of the Government ' is concerned, that appears to be of a much wider amplitude so as to include within its ambit even a public servant who may not be a regular employee receiving salary from his master. A Minister or a Chief Minister will be clearly covered by the said expression. [282 E F] A careful analysis of the meanings assigned to the word 'pay ' in the various dictionaries and the texts would clearly reveal that the expression 'in the pay of ' connotes that a person is getting salary, compensation, wages or any amount of money. This by itself however does not lead to the inference that a relationship of master and servant must necessarily exist in all cases where a person is paid salary. [283 G H] Shorter Oxford English Dictionary; Websters Third New International Dictionary: Websters New World Dictionary: Words and Phrases, Permanent Edition Vol. 31A p. 176. Venkataramaya 's Law Lexicon Vol. 11 p. 1122. Corpus Juris Secundum Vol. 70 p. 200; referred to. By virtue of the provisions contained in article 167, the Chief Minister undoubtedly performs a public duty of the nature as enjoined by clauses (a) to (c) of article 167. It is also clearly provided in the Constitution that the Chief Minister or the Ministers are entitled to salaries or allowances obviously in lieu of public duties that they perform. The salaries given to the Chief Minister or the Ministers are given from the Government funds, and, therefore, there will be no difficulty in holding that the Ministers are in the pay of the Government inasmuch as they receive their salaries, remunerations or wages from the Government. [285 E F] Once it is conceded that the Governor appoints the Chief Minister who is paid a salary according to a statute made by the legislature from the Government funds, the Chief Minister becomes a person in the pay of the Government so as to fall squarely within cl. (12) of section 21 of the Penal Code. [286 B] 259 10. The use of the words 'other public servants ' following a Minister of the Union or of a State clearly show that a Minister would also be a public servant as other public servants contemplated by section 199(2) of the Code and the Code being a statute complementary and allied to the Penal Code can be looked into for the purpose of determining the real meaning and import of the words 'public servant ' as used in the aforesaid section [286 F] Dattatraya Narayan Patil vs State of Maharashtra, [1975], Supp. SCR 145; Emperor vs Sibnath Banerji & Ors., AIR 1945 PC 156; Rao Shiv Bahadur Singh & Anr. vs The State of Vindhya Pradesh, ; ; referred to. section Tara Singh vs Director Consolidation of Holdings, Punjab, Jullundur & Ors. AIR 1958 Pub. 302, Bakshi Ghulam Mohd. vs G. M. Sadiq & Ors., AIR 1968 J & K 98; approved. Three facts that have been proved beyond doubt: (i) That a Minister is appointed or dismissed by the Governor and therefore, subordinate to him whatever be the nature and status of his constitutional function. (ii) That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him. (iii) That the said salary is paid to the Chief Minister or the Minister from the Government funds. [290A B] 12. It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of which the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is coterminus with his office and is not paid like other constitutional functionaries such as the President and the Speaker. These fact, therefore, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is, therefore, a public servant within the meaning of section 21(12) of the Penal Code. [290 C D]

Civil Appeal No. 23 of 1966. Appeal from the judgment and decree dated May 11, 1962 of the Patna High Court in Appeal from Original Decree No. 169 of 1958. U.P. Singh, for the appellants. Sarjoo Prasad and R.C. Prasad, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by Bachawat J. The plaintiffs, defendants 5 to 7 and the ancestor of defendants 8 to 13 were the sixteen anna proprietors of certain villages in district Shahbad. By a registered deed dated October 3, 1944 they leased the forest rights in the villages to the defendants 1 and 2 for a period of 9 years ending Bhado 30, 1360 Fasli corresponding to September 2, 1953 at an annual. rent of Rs. 16,000. The plaintiffs had 6 annas share in the proprietary rights in the villages and Rs. 6,000 was fixed as their share of the annual rent. The defendant No. 3 was a transferee of a portion of a lessees ' interest from defendant 1. On September 3, 1954 the plaintiffs instituted a suit claiming a decree against defendants 1 and 2 for Rs. 36,405 on account of their share of the rent for 1356 to 1360 Faslis and interest thereon at 1% per annum. During the pendency of the suit, defendant 2 died and his heirs were substituted as defendants 2 and 2(a). The Trial Court decreed the suit on contest against defendants 2 and sup./69 6 362 2(a) and ex parte against defendants 1 and 3 with future interest and costs. On appeal, the High Court held that (1 ) as defendant 2 had only 4 anna share in the lessees ' interest as mentioned in the lease deed and as he had acquired another one anna share in the lessees interest subsequently, defendants 2 and 2(a) were liable to pay only 5 annas share in the annual rent, that is to say, Rs. 1,875 per annum and defendants 1 and 3 were liable to pay the balance rent; (2) as the lease deed granted a lease of forest rights, the suit was governed by article 2(b)(i) of Schedule III of the Bihar Tenancy Act, 1885 and consequently the suit in respect of rent for 1356 and 1357 Faslis was barred by limitation, and (3) in view of sec. 67 of the Bihar Tenancy Act the plaintiffs could claim interest at the rate of 61/4% per annum only. Accordingly the High Court allowed the appeal in part and ' passed a decree against defendants 2 and 2(a) for 5 annas share of the rent for 1358 to 1360 Faslis and a separate decree against defendants 1 and 3 for the balance rent for those years with interest at 61/4 % per annum. The plaintiffs have filed the present appeal after obtaining a certificate from the High Court. The appellants challenge the correctness of all the findings of the High Court. Clause 3 of the lease deed provided: "that the lessees shall pay an annual Zama of Rs. 16,000 in respect of the thika property on 1st Kuar of every year. If for any reason, the rent for two consecutive years shall fall into arrears in that case the lessors shall be competent to enter into khas possession and occupation of the thika property and to this the lessees shall ' have no objection and in case of making default the lessees shall pay an interest at the rate of Re. 1 per cent till the date of payment. The lessors either separately or jointly shall realise (the amount) to the extent of their respective shares according to their choice by instituting in court with interest thereon mentioned above from the persons and properties of the lessees. " At the end of the lease it was stated that defendant 1 had twelve anna share in the lessees ' interest and his share of the rent was Rs. 12000. It was also stated that defendant 2 had 4 anna share in the lessees ' interest and his share of the rent was Rs. 4GO0. Clause 3 of the deed clearly shows that the lessees were jointly liable to pay the annual rent of Rs. 16000. The deed mentioned the share of each lessee and the annual rent for the purpose of indicating what amount would be contributed by each of them towards the rent jointly payable by them. The joint liability of the lessees is clearly indicated by the provision that entire lease 363 would be terminable on default of payment of rent for two consecutive years. Having regard to sec. 43 of the defendants 1 and 2 were jointly and severally liable to pay the rent. It was not disputed before the High Court that the liability of defendant 3 stood on the same footing. The High Court was in error in holding that defendant 2 was liable to pay only 5 anna share in the rent. The High Court was right in allowing the defendant to raise the point of limitation, though the plea was not taken in the written statement. Under section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation is liable to be dismissed though limitation has not been pleaded learned Counsel for the appellants could not tell us what further evidence his clients could adduce on this point. In the circumstances, the absence of the plea of limitation in the written statement did not cause the appellants any prejudice. On a careful reading of the lease deed, we are satisfied that it granted a lease in respect of forest rights only. It gave the lessees the right to cut and appropriate trees of certain types and the fruits and flowers of certain fruit bearing trees. The right to open roads and to construct buildings were incidental to the right to enjoy the forest produce. The suit is for recovery of rent in respect of forest produce and saving regard to sec. 193 of the Bihar Tenancy Act is governed by article 2(b)(i) of the Schedule III thereto. This view is supported by the decisions of the Calcutta High Court in Abdulullah vs Asraf Ali(1) and Bande Ali Fakir vs Amud Sarkar(2). The special period of limitation applies though the claim for arrears of rent is rounded on a registered instrument, (see Mackenzie vs Haji Syed Muhammad Ali Khan. (3)The High Court was right in holding that the suit in respect of rent for Fasli years 1356 and 1357 was barred by limitation. Having regard to sec. 193 all the provisions of the Act applied to a suit. Section 67 (1 ) provides that arrears of rent shall bear simple interest at the rate of 61/4% per annum. The section overrides the contractual stipulation that the interest would be payable at 1% per annum. The High Court was right in holding that interest was payable at the rate of 61/4% per annum only. In the result, the appeal is allowed in part and it is declared that defendants 1, 2, 2(a) and 3 are jointly and severally liable to pay to the plaintiffs Rs. 6000 per annum on account of the plaintiffs ' share of rent for Fasli years 1358, 1359 and 1360 and simple interest thereon at the rate of 61/4% per annum upto date. We direct that a decree be drawn up accordingly. The decree will carry future interest on the principal sum at the rate of 6% (1) 7 C.L.J. 152. (2) 19C.W.N. 415. (3) I.L.R.19 Cal. 1. 364 per annum. The aforesaid defendants will pay to the plaintiffs proportionate costs of the suit in the Trial Court. The parties will bear their own costs of the appeal in the High Court and in this Court. This decree will be without prejudice to the payments, if any, made by the defendants to the plaintiffs after the institution the suit. Y.P. Appeal partly allowed.

The plaintiffs defendants 5 to 7 and the ancestor of defendants 8 to 13 leased the forest rights in theft villages to defendants 1 and 2 at an annual rental. The deed mentioned the share of each lessee and the annual rent for the purpose of indicating what amount would be contributed by each .of them towards the rent jointly payable by them. It was stated in the lease that the entire lease would be terminable on default of payment of rent for two. consecutive years and the lessee shall pay interest at Re. 1 per cent in case of default, and that the lessors either separately or jointly shall realise the amount according to their choice. Defendant 3 was a transferee of a portion of lessees ' interest from defendant 1. The plaintiff lessors flied a suit in September 1954 claiming a decree of their share of rent for 1356 to 1360 Fasli and interest thereon. The plea that suit was. barred by limitation was not taken in the written statement. Defendant 2 died and his heirs were substituted as defendants 2 and 2(a). The trial court decreed the suit. On appeal, the High Court held that (i) the defendants 1 to 3 were liable to pay the amount of the annual rent up to the extent of their respective shares; (ii) as the lease deed granted a lease of forest rights, the suit was governed by article 2(b)(1) of Schedule HI of the Bihar Tenancy Act, 1885 and consequently the suit in respect of rent for 1356 and 1357 Faslis was barred by limitation; and (iii) in view of section 67 of the Bihar Tenancy Act the plaintiffs could claim at the rate of 61/2% per annum only. In appeal. this Court, HELD: The defendants 1 to 3 were jointly and severally liable to pay the plaintiff 's share of the rent for 1358, 1359 and 1360 Faslis and simple interest thereon at 61/4% per annum up. to date. (i) The deed mentioned the share of each lessee and the annual rent for the purpose of indicating what amount would be contributed by each of them towards the rent jointly payable by them. The joint liability of the lessees was clearly indicated by the provision that the entire lease would be terminable on default on payment of rent for two consecutive years. Having regard to section 43 of the defendants 1 and 2 were jointly and severally liable to pay the rent, and the liability of defendant 3 stood on the same footing. [362 H 363B] (ii) Under section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation is liable to be dismissed though limitation is not pleaded. The respondent was rightly allowed to raise the 361 point of limitation though the plea was not taken in the written statement. [363 C] The lease deed granted a lease in respect of forest rights only. It gave the lessees the right to cut and appropriate trees of certain types and the fruits and flowers of certain fruit bearing trees. The right to open roads and to construct buildings were incidental to the right to enjoy a forest produce. The suit was for recovery of rent in respect of forest produce and having regard to section 193 of the Bihar Tenancy Act was governed by article 2(b)(1) of the Schedule III therefore. The special period of limitation applied though the claim for arrears of rent was claimed on a registered document. [363 D F] The suit in respect of rent for 1356 and 1357 was barred by limitation. Abdulullah vs Asraf Ali, 7 C.L.J. 152, Bande Ali Fakir vs Amud Sarkar, and Mackenzie vs Haji Syed Muhammad Ali Khan, I.L.R. , approved. (iii) Interest was payable at the rate of 6 1/4% per annum only. By section 193 of the Bihar Tenancy Act all the provisions of the Act applied to the suit. Section 67(1) provides that arrears of rent shall bear simple interest at the rate of 61/2% per annum. The section overrides the contractual stipulation that the interest be payable at 1% per annum.[363 F G]

ivil Appeal No. 341 of 1973. From the Judgment and Order dated 26.2.1971 of the Punjab and Haryana High Court in L.P.A. No. 566/1968. Harbans Singh for the Appellants. R.S. Sodhi and S.K. Sinha for the Respondents. The Judgment of the Court was delivered by KHALID, J. This is an appeal by certificate against the Judgment of a full bench of the Punjab and Haryana High Court dated 20th November, 1970. The question involved in this appeal is ingenious but untenable. The question re ferred to the full bench reads as follows: "Whether after the re organisation of the State of Punjab the land owners owning land in both the States of Punjab and Haryana can claim to retain the permissible area in each State separately after 1st of November, 1966. If so, whether an order declaring the area to be surplus passed prior to the date above said, but which order has not been implemented and the surplus land so declared has not in fact been utilised would continue to have effect after said date?" Now the facts. Balwant Singh was a displaced person from West Pakistan. He owned in all 67 standard acres of land distributed in various villages. According to him he had sold some properties to strangers and the remaining in favour of his wife and minor son in 1957. On 8th November, 1960, when proceedings under the Punjab Security of Land Tenures Act, 1930 (for short the Act) were initiated ' the Special Collector, Punjab, declared 29 standard acres be longing to him as surplus area. While doing so, the trans fers made by him mentioned above, were ignored. He had an option to choose the property which fell to his share. He opted for the entire land belonging to him and situated in village Samani as his permissible area and did not opt for any area in Mohamad Pera, District Ferozepore. The Special Collector reserved for him about 18 standard acres out of his holding in village Dhab Kharial in order to make up his permissible area of 50 standard acres. This part of the order of the Special Collector, though 695 challenged in appeal, was confirmed by the Commissioner, Jullundar Division on 5th January, 1965, since the appeal before him was held to be barred by limitation. The appel lant pursued the matter before the Financial Commissioner, Planning, Punjab,_by filing a revision. This was dismissed on 19 2 1965. On 1st November, 1966, the , (for short, Re organisation Act) came into force. The State of Punjab was distributed under the Act to the present State of Punjab, State of Haryana, Union Territory of Chand igarh and Union Territory of Himachal Pradesh. In December, 1966, Balwant Singh, his wife and his minor son filed a writ petition for the issuance of necessary directions to the States of Punjab and Haryana restraining them from utilising the surplus area declared by the Special Collector by his order dated 8 11 1960. It is relevant to note here that the original properties that belonged to him fell within the new State of Punjab and the new State of Haryana. The matter came before a learned Single Judge. The following questions were raised before him: (1) That after the States Reorganisation, persons owning lands both in the State of Punjab and Haryana could claim that they should be allowed permissible area in both the States separately, (2) that orders passed regarding surplus area prior to 1st November, 1966, and which area had not been utilised till then, should be deemed to have no effect and (3) that the proceedings declaring surplus land were bad for want of notice to the transferees. These contentions were repelled by the learned Single Judge. He took the matter in appeal. The Division Bench before whom the appeal was posted felt that an important question was involved and therefore referred the appeal to a larger bench. The full Bench considered the matter in detail and held that the order declaring the area to be surplus passed before 1st November, 1966, would continue to have effect after that date, even if that order had not been implemented and persons owning land in the newly created States is not, in law, entitled for a separate allotment under the Act. It is this conclusion of the Full Bench that is assailed before us on the strength of a certificate issued by the Court Balwant Singh had more than the permissible area, viz., 50 standard acres with him. The excess area was liable to be declared as surplus. Surplus area was declared by the Spe cial Collector, by his 696 order dated November 8, 1960. It was confirmed in appeal and in revision. The revisional order is dated 19th February, 1965, that is before 1st November 1966, when the Re organi sation Act came into force. As indicated above, by virtue of the Re organisation of the two States, a part of his hold ings fell in the territory of the State of Haryana and another part in the State of Punjab. He evolved a contention that he could have 50 standard acres of land in each of the two States. On this basis, he questioned the order dated 8th November., 1960. He supported this argument with the addi tional plea that the said order had not been implemented and the land declared surplus not utilised. The question that fell to be decided by the full Bench was whether the order which had become final would continue to have effect after the date of enforcement of the Re organisation Act when that order had not been given effect to and the surplus area had not been utilized by the Govern ment. Under the Scheme of the Act, it is the entire holding of a person on 15th April, 1953, that is to be taken into consideration for. determining his surplus area. The Govern ment acquires the right to utilize the surplus area of a person against whom an order of declaration has been made for the resettlement of tenants ejected or to be ejected. Sections 9(1)(i) and 10A(a), which read as follows, make the position clear: "9(1). Notwithstanding anything contained in any other law for the time being in force, no land owner shall be competent to eject a tenant except when such tenant (i) is a tenant on the area reserved under this Act or is a tenant of a small land owner; or. . . ." "10A(a) The State Government or any officer empowered by it in this behalf, shall be competent to utilise any surplus area for the re settlement of tenants ejected, or to be ejected, under clause (i) of sub section ( 1 ) of Section 9. " It was contended before the High Court and repeated before us that the order did not get finality unless the surplus area had in fact been utilised, and tenants re settled there. This contention did not find 697 favour with the High Court. We will presently examine wheth er the contention has any merit. It is true that along with the order declaring the land of an owner as surplus, a corresponding right & duty accrues to the Government to utilise the surplus area for the re settlement of tenants. In other words, the rights on the land declared as surplus get vested in the Government, to be distributed amongst the tenants for re settlement. This is an indefeasible right that the Government secures. The appellant is not well rounded in his contention that he could get back the land if the surplus had not been utilised. There is nothing in the Act which imposes any time limit for the Government to utilise the land for the purpose mentioned in the Act. Nor is there any provision enabling the owner of the land to claim back the land and to get it restored to him if utili zation is not made by the Government within a specified period. All that the Act contains by way of exception is what is seen in Section 10A(b). If at the time of the com mencement of the Act, the land is acquired by the Government under the relevant acquisition laws or when it is a case of inheritance, the owner could claim exclusion of such land from his land for fixation of his ceiling under the Act. The second exception itself is further lettered by the provision in Section 10 B that where succession had opened after the surplus area or any part thereof had been utilised under Section 10A(a), the saving specified in favour of an heir by inheritance would not apply in respect of the area so uti lised. To put it short, the Government had under the Act an unfettered right without time limit to utilise the land for re settlement of tenants subject to the two exceptions mentioned above. It is, of course, desirable that re settle ment should be done as expeditiously as possible. Inaction on the part of the Government to re settle the tenants will not clothe the owner with a power for restoration of the land. The contention of the appellant based on non utilisa tion of the land has, therefore, to fail. The second question is whether the appellant is entitled to have the best of the two worlds; in other words, to have his quota of full 50 acres in Punjab and another 50 acres in Haryana. Section 88 of the Re organisation Act makes the position clear. It reads as follows: "The provisions of Part II 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 Punjab shall, until otherwise provid ed by a competent Legislature or other compe tent authority, be construed as meaning the territories within that State 698 immediately before the appointed day. " As per this Section the provisions of the Act which was applicable to the old State of Punjab would continue to apply to the new State. In other words the order passed before 1st November, 1966, which became final, declaring the surplus area, would be given effect to and the order would be implemented uninfluenced by the division of the State. After the Re organisation Act, the Governer of Haryana in exercise of the powers conferred by Section 89 of the Re organisation Act passed an order by name Haryana Adaptation of Laws (States and Concurrent Subjects) Order, 1968, on 23 10 1968 making it to take effect retrospectively from 1st November, 1966. Clauses 10 and 11 of the order read as follows: "10. The provisions of this order which adapt or modify any law so as to alter the manner in which, the authority by which, or the law under or in accordance with which any powers are exercisable shall not render invalid any notification, order, licence, permission, award, commitment, attachment, by law. Rule or regulation duly made or issued, or anything duly done, before the appointed day; and any such notification, order licence, permission, award, commitment, attachment, bye law, rule, regulation or thing may be revoked, varied or undone in likemanner, to the like extent and in the like circumstances as if it has been made, issued, or done after the commencement of this order by the competent authority and under and in accordance with the provisions then applicable to such a case. Nothing in this Order shall affect the previous operation of, or anything duly done or suffered under any existing State law or any right, privilege, obligation or liability already acquired, accrued or incurred under any such law, or any penalty, forfeiture or punishment incurred in respect of any offence already committed against any such law. " A combined reading of these two clauses makes it clear that any order made or anything done or any liability in curred or a right accrued before the 1st November, 1966 would not be affected by the coming into force of the order. These two clauses show unambiguously that the respective State Governments would be entitled to give effect 699 to orders passed before 1st November, 1966, declaring the surplus area by utilising them for the re settlement of the tenants, despite the reorganisation of the State of Punjab. The orders passed will be respected by both the States. The fact that the land belonging to a particular owner, under fortuitous circumstances, fall in the two newly formed States, will not in any way affect the operation of the orders which had become final prior to 1st November, 1966. To accept the appellant 's contention would create anomalies. Persons against whom proceedings under the Act were taken and became final prior to 1st November, 1966, would be entitled to claim lands in both the States while those whose petitions are pending on the date the States Reorganisation Act came into force would be in a disadvantageous position. This is not the object of the Act. Nor the scheme behind it. The States re organisation was a historical accident. The land owners cannot take advantage of this accident, to the detriment of ejected tenants or tenants in need of re set tlement. For the above reasons, we hold that the High Court was justified in answering the question referred to it against the appellant. The appeal is accordingly dismissed. There will be no order as to costs. S.R. Appeal dis missed.

The respondent was employed by the appellant company, but later on his work and conduct became very unsatisfactory and repeated warnings, both oral and written, did not show any improvement. A thorough inquiry into his record of service was made and a report was submitted which showed that he was unsuitable to be retained in its service. No formal enquiry, however, was held by submitting a charge sheet to the respondent and giving him an opportunity to rebut those chares. The appellant gave him a choice either to terminate his services on payment of full retrenchment compensation, or if he refused to accept the same, to make an application for permission to terminate his services. Eventually, the appellant filed an application before the Labour Appellate Tribunal under section 22 Of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to discharge the respondent from its service. The application was originally heard ex parte, the respondent not appearing, and the Tribunal, by order dated October 14, 1955, allowed the application. Subsequently the respondent made an appli cation for a review of the order under Or. 47, R. I, for setting it aside under Or. 9, R. 13 and for restoration of the application under Or. 41, R. 21, Of the Code of Civil Procedure. The Tribunal found that there was sufficient cause for the respondent not appearing when the application was called on for hearing, and set aside the ex parte order and restored the appellant 's application. On a further hearing of the application, the parties adduced evidence and the Tribunal, after hearing them, rejected the application on the, ground that a prima facie case had not been made out for permission to discharge the respondent. On appeal to the Supreme Court it was contended for the appellant (1) that the Labour Appellate Tribunal had no jurisdiction to review its own order and (2) that it exceeded its jurisdic tion under section 22 Of the Act, in discussing the evidence led before it in meticulous detail and coming to the conclu sion that the appellant failed to make out a prima facie case to discharge the respondent from its service. Held: (1) that under section 9, sub sections (1) and (10) of the Act the Labour Appellate Tribunal had jurisdiction to set aside the 515 ex parte order dated October 14, 1955, and restore the application to its file. (2) that under section 22 of the Act, the jurisdiction of the Labour Appellate Tribunal in considering whether a prima facie case has been made out by the employer, is to see whether the employer is acting mala fide or is resorting to any unfair labour practice or victimisation, and whether on the evidence led it is possible to arrive at the conclusion in question. Though the Tribunal may itself have arrived at a different conclusion it has not to substitute its own judgment for the judgment in question. Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union and Others, , The Automobile Products of India Ltd. vs Rukmaji Bala & others; , and Laksh mi Devi Sugar Mills Limited vs Pt. Ram Sarup, (1956) S.C.R. 916, relied on. In the instant case, though the appellant was justified in making the application for permission to discharge the respondent on account of his work and conduct being demon strably unsatisfactory, and the standard of proof which the Tribunal ];ad applied for finding whether there was a Prima facie case was not strictly justifiable, in view of the fact that no formal inquiry into the charges against the respond ent was held and the evidence on behalf of the appellant did not show that the respondent was given an opportunity to controvert the allegations made against him, the decision of the Tribunal was upheld.

Appeal No. 144 of 1955. Appeal by special leave from the judgment and order dated September 25, 1953, of the Labour Appellate Tribunal of India, Calcutta in Miscellaneous Case No. C 112 of 1953. C. K. Daphtary, Solicitor General of India, A. B. N. Sinha and B. P. Maheshwari, for the appellant. section P. Sinha, R. Patnaik and A. D. Mathur, for the respondents. 801 1956. October 11. The Judgment of the Court was delivered by section K. DAS J. , This is an appeal by special leave from a decision of the Labour Appellate Tribunal, Calcutta, dated the 25th September, 1953. The relevant facts lie within a narrow compass. On the 4th of May 1953 the appellant, the Rohtas Industries Limited, Dalmianagar, made an application to the said Labour Appellate Tribunal under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), hereinafter referred to as the Act, for permission to discharge ninety six temporary employees in the following circumstances. The appellant company have a number of factories at Dalmianagar including a cement factory, power house, pulp mill, paper factory, chemical factory, factory for the manufacture of certain acids and an asbestos cement factory. The company had a number of temporary employees who were engaged temporarily in connection with certain erection works for the extension and enlargement of those factories. The terms of employment of these employees were embodied in a temporary appointment form which was signed by the employees as well as the management. The said terms stated, inter alia, that "the company could discharge the employee at any time without notice, compensation and giving any reason therefor, whether on completion of the work on which the employee was engaged or earlier"; the terms also made it clear that whether the employee was on the same job or some other job, in the same department or some other, either on temporary work or permanent work, he would remain a temporary employee until the Works Manager issued a written letter expressly making him a permanent employee. As and when the various erection works were completed, the temporary employees were first put on a list of spare men and then discharged. Some time prior to the 3rd of July 1952, sixty nine of these temporary employees were spared for being discharged. The names of these sixty nine employees were given in two lists, Appendix 802 A and Appendix B. It was alleged that on the 3rd of July 1952, a number of these employees headed by one Brij Nandan Pandey entered the office of Shri L. C. Jain, Manager of the Cement Factory, and Brij Nandan Pandey assaulted the Manager. A serious situation resulted from that 'incident and the company stopped the sixty nine temporary employees from coming to their factories or to their Labour Office and issued a notice to them stating that the company were applying to the Industrial Tribunal for permission to terminate their services. At that time an industrial dispute relating to, among other things, the payment of bonus to the employees was pending adjudication in the Court of the Industrial Tribunal, Bihar. On the 5th of July 1952, the appellant company made an application to the said Tribu nal for permission to discharge the sixty nine employees. The application was made under section 33 of the . On the 12th of July 1952, forty nine out of the said sixty nine employees made an application, under section 33 A of the , to the Chairman, Industrial Tribunal, Bihar, on the allegation that the appellant company had discharged sixty nine employees on the 5th July 1952 and had thereby contravened section 33 of the . On the 20th of August 1952, thirty six more temporary employees were put on the spare list and an application was made to the Industrial Tribunal Bihar, for including these thirty six persons also in the application which had been made for permission to discharge the temporary men; thus, all told, the application related to one hundred and five temporary men. The case of the appellant company was that the completion of the erection works for which these temporary men were originally employed was a gradual process and so far as the Cement Factory erection work was concerned, it was completed by the end of March 1952 except for certain minor additions and alterations. Therefore, the appellant company no longer required the services of the temporary employees and they were put on the spare list as and 803 when their services were no longer required. The two applications which had been made to the Industrial Tribunal, Bihar, the one under section 33 of the and the other under section 33 A of the said Act, remained pending with the Industrial Tribunal till the 17th of December 1952 on which date the application under section 33 A filed by forty nine of the sixty nine temporary employees, was dismissed. On the 3rd of January 1953, the Chairman of the Industrial Tribunal, Bihar, intimated to the appellant company that the Tribunal was no longer competent to pass any orders on the application under section 33 of the , as the adjudication proceedings on the main reference had already concluded. Two appeals were taken to the Labour Appellate Tribunal, one from the award made on the main adjudication and the other from the order made on the application under section 33 A of the . On the 20th May 1953, the appeal from the order under section 33 A was dismissed. As we are not concerned with that appeal in any way, nothing further need be said about it in this judgment. The appeal from the main award was pending on the 4th of May 1953 on which date the appellant company made their application under section 22 of the Act to the Labour Appellate Tribunal for permission to discharge ninety six of the temporary employees. Though there were one hundred and five temporary employees originally, with regard to whom an application had been made to the Industrial Tribunal, Bihar, nine out of them voluntarily left the service of the company; therefore, the number of temporary employees regarding whom the application under section 22 of the Act was made was ninety. six only. , The application was contested by forty two of the temporary employees, and in their affidavit they denied that any of the sixty nine workmen were originally recruited as temporary workmen and they further denied that they were involved in the incident relating to the assault on Shri L.C. Jain on the 3rd of July 1952. They said that in effect they were 804 permanent employees and enjoyed all the benefits of permanent employees. They further stated. : "The erection work of the cement plants of the petitioners was completed towards the end of 1950 and it is therefore patently false to suggest that we became redundant as a result of the completion of the erection of the cement plants. It is significant to note that a large number of workmen who had worked on the job of erecting the cement plants were discharged shortly after the completion of the said work on the ground that they were surplus. The cement plants started to Work in full swing from about the first quarter of 1951 and we were working in the said cement plant producing cement from the very beginning. right up to 5th July 1952, when we were informed that we were surplus. In fact the real reason for the proposed retrenchment is the petitioner 's desire to increase the rate of exploitation of its workmen by increasing the workload". With regard to the terms embodied in the appointment form, it was alleged that on or about the 3rd of December 1948 the employees of the appellant company were forced to go on strike on account of an industrial dispute; towards the end of the strike the workmen became exhausted and drifted back to work. The strike was ultimately called off and the appellant company taking full advantage of their victory compelled a section of the workmen, who did not return to work until the strike was called off, to sign the ap pointment form with the purpose of humiliating and terrorising them. The Labour Appellate Tribunal gave its decision on the 25th September 1953 which is the decision under appeal. It dismissed the application of the appellant. company on a finding which the Tribunal expressed in the following words: "It is thus clear that these 96 workmen had been working in the production departments from as far back as the beginning of the year 1951 and so the completion of the erection work cannot be put forward as the ground for their retrenchment". 805 Referring to the Directors ' Report dated the 10th of July 1951, the Tribunal came to the conclusion that the workmen 's version that the erection works had been completed by the end of 1950 was supported by the said report. In other words, the decision of the Labour Appellate Tribunal was primarily based on the finding that the erection works were completed by the end of 1950 and therefore there was no ground for discharging the ninety six temporary men. Learned counsel for the appellant has contended before us that (1) the Appellate Tribunal did not correctly appreciate the true scope and effect of section 22 of the Act; (2) the Appellate Tribunal gave attention to only one point, namely, the completion of erection works, and did not consider the other circumstances put forward on behalf of the appellant in support of their application; (3) instead of considering the real point which arose for determination on an application under section 22 of the Act, the Appellate Tribunal confined its attention to a point which was not decisive of the question before it; and (4) by reason of its failure to consider the real point for determination, the order of the Appellate Tribunal has resulted in manifest injustice. In our opinion, these contentions are correct and should be upheld. It was pointed out in The Automobile Products of India Ltd. vs Rukmaji Bala(1) that section 22 of the Act confers on the Appellate Tribunal a special jurisdiction which is in the nature of original jurisdiction and the Tribunal being an authority of limited jurisdiction must be confined to the exercise of such functions and powers as are actually conferred on it. With regard to the scope of section 22 of the Act, it was observed: "The object of section 22 of the 1950 Act like that of section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject matter of pending proceedings against victimisation by the employer on account of their having raised industrial disputes or their continuing the (1) ; 105 105 806 pending proceedings. It is further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen. To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment. Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein. The purpose of these two sections being to determine whether the ban should be re moved or not, all that is required of the authority exercising jurisdiction under these sections is to accord or withhold permission". The earlier decision of this Court in Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union(1) dealt with clause 23 of the U. P. Government Notification dated the 10th March 1948 made in exercise of the powers conferred by sections 3 and 8 of the U. P. , and it was there observed that the scope of the enquiry was to come to a conclusion whether there was a prima facie case made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman. That being the scope of the enquiry on an application under section 22 of the Act, what the Labour Appellate Tribunal had to decide in the present case was whether the appellant company had made out a Prima facie,case for the proposed discharge and whether they were resorting to any unfair practice or victimisation in the matter of the proposed discharge. (1) ; 807 Instead of doing that, the Labour Appellate Tribunal dismissed the application of the appellant company on the only ground that the version of the workmen that the erection works had been completed by the end of 1950 was supported by the Report of the Directors dated the 10th July 1951. Learned counsel for the appellant has rightly pointed out that even in respect of the completion of erection works the conclusion of the Appellate Tribunal is a complete non sequitur. First of all, the Directors ' Report was dated the 10th July 1951 though the balance sheet of the company with which the report was dealing related to the period ending on the 31st October 1950 The report naturally referred to such works as were completed on or before the 10th of July 1951. It should be obvious that the completion of erection works must be a gradual process, and while some of the erection works might have been completed by the end of 1950 or July 1951, some were still in the process of completion. Under their terms of employment, temporary employees could be moved from one work to the other and the mere circumstance, that they were employed in a production department for some time, even if true, did not make them permanent employees; nor did the circumstance that they enjoyed some of the benefits of permanent employees make them permanent. These are circumstances which have been completely ignored by the Labour Appellate Tribunal. It is worthy of note that in their application dated the 12th of July 1952, the forty nine workmen admitted: "though most of us were originally recruited for erection work in the Cement Factory, many of us were later on transferred as permanent workers to sugar and paper factories and some of us were absorbed as permanent workers in the maintenance section of the Cement Factory". (Vide paragraph 3 of the application). In the joint affidavit filed on the 12th August, 1953, in reply to the appellant 's application under section 22 of the Act, the said workmen denied however that 808 they were at any time engaged temporarily for temporary work vide paragraphs 3 and 6 of the affidavit. Obviously, they were shifting from the position which they had originally taken up. No evidence was given that the men who were employed temporarily were afterwards made permanent. They filed a schedule, marked 'A ', to their affidavit wherein they showed their period of service and the name of the factory or plant from where their duties stopped. On an ex amination of the schedule (Annexure A) it appears that a number of them were put on the spare list when the erection work was completed some time in 1952. 'Annexure 'A ' therefore supports the case of the appellant company that the completion of the erection works was a gradual process, some were completed in 1950, some in 1951 and some in 1952. The first batch of sixty nine employees with whom we are concerned were put on the spare list between March and July 1952 and the second batch were put on the spare list in August 1952 when the relevant erection works were completed. The finding of the Labour Appellate Tribunal with regard to the completion of erection works was vitiated by reason of the failure to take into consideration the circumstances stated above. With regard to the terms of employment embodied in the temporary appointment form, the respondents ' case was that the appointment forms were signed as a result of the strike in 1948; it was never suggested that these forms were never signed at all and the comment of learned counsel for the respondents that the appellant company have not produced the appointment forms has very little force. The respondents gave no evidence in support of the allegation that the appointment forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding. None of the affidavits filed on behalf of the respondents suggested, even in a remote way, that the appellant company were resorting to any unfair practice or victimisation in the matter of the pro posed discharge. 809 Learned counsel for the respondents has contended before us that the finding of the Labour Appellate Tribunal is a finding on a question of fact, namely, whether the respondents were temporary or permanent employees. He has argued that this Court should not interfere even though the finding is based on reasons which may not appear convincing to us. We have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection works. Secondly, learned counsel for the respondents has contended that under section 22 of the Act the Appellate Tribunal had a discretion either to lift the ban or not to lift it and in a matter of discretion this Court should not interfere. It is true that this Court does not sit upon the decisions of Industrial Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under article 136 of the Constitution. In our opinion, such special circumstances exist in the present case where the Labour Appellate Tribunal has not directed its mind to the real question to be decided on an application under section 22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injustice. The discretion which an Industrial Tribunal has must be exercised in accordance with well recognised principles. There is undoubtedly a distinction between commercial and industrial arbitration. As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining) Vol. 1, page 536: "Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements". 810 A Court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation. We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever. It has been necessary for us to go into the facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so. The Act under which the Appellate Tribunal purported to pass its order has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. A question of some nicety as to the correct interpretation of section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 might have arisen if we had thought fit to remand this case. We do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under subsection (2) of section 33 of that Act. No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under section 22 of the Act clearly emerge from those affidavits. We are satisfied Prima facie that the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed. The appellant company have made out a prima facie case for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation. In these circumstances, we would allow the appeal, set aside the decision of the Labour Appellate Tribunal dated the 25th September 1953 and pass the order 811 Which that Tribunal should have passed in this case, namely, that permission be granted to the appellant to discharge ninety six temporary workmen. In the circumstances of this case, we think that the parties must bear their own costs throughout. Appeal allowed.

The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]

251&558of 1987. (Under Article 32 of the Constitution of India) R.K. Jain and R.P. Gupta for the Petitioners. Kapil Sibal, R.B. Misra, B.B. Sawhney, R.K. Mehta (N.P.) and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by SAWANT, J. The petitioners in Writ Petition No. 25 1 of 1987 are Dairy Mates whereas, those in Writ Petition No. 558 of 1987 are Junior Plant Operatives and Semi Skilled Opera tives, all working with the Delhi Milk Scheme. The first petition is on behalf of about one thousand workers, where as, the second petition is on behalf of about 280 of work ers. The grievance of the Dairy Mates is that although they perform the duties and functions of semi skilled work ers, they have been wrongly classified as un skilled workers and paid salary as such, as recommended by the 4th Pay Commission namely, Rs.750 940 instead of Rs.800 1 150 which is the salary recommended to the semiskilled workers. The grievance of the Junior Plant Operatives and Semi Skilled Operatives is that they are actually ' doing the work of skilled workers, but are classified similarly as unskilled workers and paid salary as such. Both, further, have a grievance that their counterparts in other departments, particularly in Railways, have been properly classified and are paid salary accordingly. The petitions were resisted by the respondent Union of India by filing counter affidavits denying the conten tions of the petitioners that their work was of a semi skilled or skilled character as alleged. In view of the disputed questions relating to the nature and functions of the workmen involved, this Court by its order of July 29, 1988 referred the matter to the Central Govt. Industrial Tribunal cumLabour Court, New Delhi to report to the Court on what would be the appropriate pay scales admissible to the concerned workers, after looking into the record and giving an opportunity to the parties to produce before it such further material as they may desire to do. Pursuant to the order, the Tribunal submitted its report dated October 325 28, 1988. It appears from the report that the Tribunal had given opportunities to both the parties to make additional submissions, if any, and to file further material which they wished to do. Pursuant to the opportunity given, the workers in both the petitions produced additional material and evidence. The respondent Union of India, however, did not produce any further material or evidence. On the basis of the material which was already on record, and the further material produced before it, the Tribunal made its report. The relevant portions of the report may be reproduced here under: 3. "There are 4 categories of workmen in the DMS viz. Dairy Mates, (DM), Junior Plant Operatives (JPO), Semi Skilled Operatives (SSO) and Skilled Operatives (SO). The deploy ment registers of the various units read with the evidence of Shri Lajpat Rai Saxena Dairy Supervisor, conclusively prove that the var ious categories of workmen are performing similar duties and their positions are inter changeable with the result that there is no clear demarcation as to what function is to be performed by which category of workmen. Shri Lajpat Rai Saxena has clearly stated that the nature of duties and the degree or skill of S.O., S.S.O., and J.P.Os and D.Ms is almost same and that sometimes the work done by S.S.Os is performed by S.O. and J.P.Os subject to the availability of the category of work men. To a question by this Tribunal he replied that if an S.O. is available he will be posted as an S.O. only but when no S.O. is available, then S.S.O. is put in his place and sometimes J.P.Os and Dairy Mates may be put to work in his place. He further stated that generally there is a shortage of S.Os and then they have to put other categories of workmen in their places. The position is fully borne out by the various deployment registers . . " 4." . . . The position of deployment of the various categories of workmen clearly goes to show that their duties are inter changeable without any consideration for their grades/designations. The position obtaining on the ground clearly repells the contentions of the respondents contained in affidavit of Shri K.G. Krishnamurty that the functions of the various categories of workmen are distinct and separate. The respondents have not been able to produce any document in support of their contention to show that the duties of the various categories of workmen as enumerated in the affidavit of Shri K.G. Krishnamurty 326 were even published or actually followed. On the other hand, Shri Lajpat Rai Saxena has stated that since the time he joined service in the year 1972 he had not come across any roster of duties for the different categories of workers such as S.O., SSO, JPOs and Mates and no such roster had been issued after 1972. He had heard that there was a roster of duties issued prior to his joining of service but he had not seen any such roster. It would thus appear that if there was any such roster prior to 1972 it got into disuse and was never enforced." 5. "The nature of functions performed by various workmen shows that they require a good degree of skill. In other words, the functions can be performed only by skilled and semi skilled workers and not by unskilled workers. Shri Lajpat Rai Saxena has stated that there are 5 milk pasteurisers and 2 cream pasteuris ers in the plant unit of Process Section. There are also two chillers in R.S.M. There are 13 machines in the product section. All these machines can be operated only by skilled workers. He further stated that the bottle filling plant is automatic and the entire working is also automatic. They have got a separate pest control section for cleaning and sweeping. Sweepers of Pest Control Section are not used for cleaning machines which is done only by the SO, SSOs, JPOs and Dairy Mates. This further goes to show that even the clean ing of machines requires skill and the job cannot be performed by unskilled workers. Even the Management of DMS recognises that the duties performed by the mates and junior plant operatives who have been clubbed with the unskilled category of peons, chowkidars etc., are much more onerous in nature and they deserve a better deal (see the letter dated 4 9 86 addressed by the Chairman D.M.S. to the Joint Secretary Ministry of Agriculture). The first petitioners have placed on record a photo copy of the identity card issued to the mates (page 110 Vol. 1) which shows that the D. Mates were being treated as Technical Personnel for the purpose of issue of identity cards. The job cards annexures 1 to 6 (Vol. II) further go to show that the mates have been performing skilled/semi skilled duties such as repairing of Driver seats vulcanising of punctures, other repairs of vehicles and servicing. All these jobs could not have been done by unskilled workers. Under the circum stances, I have no hesitation in holding that the 327 mates and junior plant operatives have 'been unfairly treated by the 4th Pay Commission by giving them lowest pay scale of unskilled category of workmen like peons, sweepers, chowkidars etc. This category of workmen difinitely deserves to be given a higher grade than the lowest meant for unskilled category of workmen. While it may be conceded that due to the diffuse nature of duties, the Dairy Mates and Junior Plant Operatives of DMS cannot be compared with the Gangmates in the Railways, yet the case of the Dairy Mates and Junior Plant Operatives of the DMS has intrin sic merit. No doubt the workmen categorised as semi skilled (SSOs) at present are carrying out the functions of Skilled Operatives (SOs) frequently, yet, so are the Mates and JPOs. However, all the workmen cannot be given the grade of SOs because the considerations of career planning and promotions etc. have to be kept in view. Already it is being represented that the various categories of workmen are stagnating in their respective grades for the last 20 25 years. The same complaint will arise afterwards if all the workmen are given the grades of SO at the same time. It also militates against the principles of sound administration because there will be double jumping of grades in some category of workmen. It will also not be desirable to create any fresh scales of pay as it would run counter to the recommendations of the pay commission which has reduced the number of pay scales prevailing previously. " 6. "Taking into consideration all the facts and circumstances, it is recommended that the Mates and JPOs may be given the pay scale of Rs.800 1150 and semi skilled operatives may be given the scale of Rs.825 1200. The grades as provided by the 4th Pay Commission and those now recommended by this Tribunal will compare as under: S1. No. Category of workmen Pay Scale Pay Scale recommended by recommended 4th Pay by this Commission Tribunal 1. Skilled Operatives (SO) 950 1150 950 1400 2. Semi Skilled Operatives 800 1150 825 1200 (SSO) 3. Mates/JPOs 750 940 800 1150. " 328 5. While the workmen accepted the report, arguments were advanced on behalf of the respondent mainly criticising the report with regard to the pay scales recommended to the Mates deployed in Transport (Distribution Section). It was contended that the Mates working in the said section consti tuted 60% of the total number of Mates deployed in the different units of the Scheme, and their work merely con sisted of loading and unloading of the crates. That work by no stretch of imagination could be described as other than unskilled. It was, therefore, wrong to give them a scale different from that admissible to the unskilled workers. This contention ignores the admitted fact that Mates from one Unit are transferable to another at any time, and when so transferred they do the work of the Units to which they are transferred without any additional remuneration. What is more as is stated in the report, there is no roster of duties and functions of the Mates in any Unit, and all Mates have to do the work of the Units to which they are assigned on any particular day. The mates have thus to be versatile with the work in all the Units, both unskilled and semi skilled. This is certainly not the case with the Sweepers, Chowkidars and Malis who are categorised as unskilled work ers. This being the case, we do not see any merit in the contention that the Mates should be treated on par with the unskilled workers. There was no contention raised on the report with regard to the mates working in the other Units or with regard to the Junior Plant Operatives and Semi Skilled Operatives. In the circumstances, we accept the report and direct the respondent to pay to the workers the pay scales recom mended in the report which are as follows: A. Mates and Junior Plant Operatives Rs.800 1 150 B. Semi Skilled Operatives Rs.825 1200 8. The above pay scales should come into effect from 1st January, 1990. It is made clear that none of the workers i.e. Mates, Junior Plant Operatives and Semi Skilled Operatives will refuse to do any part of the work which is assigned to them at present merely because they are hereby given the above pay scales. Writ Petitions are allowed accordingly. The parties to bear their own costs. R.N.J. Petitions allowed.

The appellant company was maintaining a large eucalyptus plantation for captive consumption in its production of Rayon Grade Pulp. The State of Kerala claimed that as a consequence of the Kerala Private Forests (Vesting and Assignment) Act, 1971, the eucalyptus plantation being a 'private forest ' stood transferred to and vested in it. The company resisted the State 's claim on the ground that the term 'private forest ' excludes the eucalyptus plantation. The High Court decided the question in favour of the State and against the appellant. 402 In the appeal to this Court, it was contended on behalf of the appellant that since the eucalyptus plantation was covered by the expression 'any other agricultural crop ' in section 2(47)(iv) of the Kerala Land Reforms Act, 1963 the similar expression used in section 2(f)(1)(i)(C) of the Vesting Act, 1971 must also carry the same meaning. Dismissing the appeal, this Court. HELD: 1. Judicial interpretation given to the words defined in one statute does not afford a guide to construc tion of the same words in another statute unless the stat utes are pari materia legislations. [408G] 1.1 The definition of 'private forest ' in the Kerala Land Reforms Act is not just the same as the definition of 'private forest ' in the Vesting Act. Indeed, there is a vast difference between the two. Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Pri vate Forests Act, 1949 applied immediately before the ap pointed day; the second concerned is in relation to the remaining areas in the State of Kerala. The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the Madras Preservation of Private Forests Act ap plied, and exempts there from lands described under sub clauses (A) to (D). This significant reference to this Act in the definition of 'private forest ' in the Vesting Act makes all the difference in the case. The scheme of this Act appears to be that if the land is shown to be private forest on the date on which the Act came into force, it would continue to be a forest, even if there was subsequent re plantation. [408H; 409A D] 1.2 The lands involved in this appeal were all forests as defined in the Madras Preservation of Private Forests Act and continued to be so when the Vesting Act came into force. Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the Kerala Land Reforms Act to the Vesting Act. [409E F] State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs K.C. Moosa Haji, A.I.R. referred to. Malankara Rubber and Produce Co. vs State of Kerala & Ors. , ; , Held inapplicable. 403 State of Kerala vs Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd.; , , referred to. The term 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation. The wider concept covers both the primary or basic as well as the subsequent operations. It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal, trees, casuarina plantations, tendu leaves, coconuts etc. Of course there must be present all throughout the basic idea that there must be cultivation of the land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land. The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations. [407D F] Commissioner of 1. T. West Bengal vs Raja Benoy Kumar Sahas Roy, ; , referred to. 2.1 Under Section 3(1), private forests vest in Govern ment. Subsection (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation. Cultivation for this purpose 'includes cultivation of trees or plants of any species '. The explanation to sub section (2) makes this aspect beyond doubt. The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under section 3 sub section (2). The legislature has thus excluded from vesting under section 3 sub section (2) the trees of every variety. But while pro viding for exclusion under sub clause (C) of section 2(f)(1)(i), the legislature could not have again thought of trees or plants of all kinds. It seems to have considered only fruit bearing trees and not of other species. Sub clause (C) refers to lands which are principally cultivated with cashew or other fruit bearing trees. It next refers to lands which are principally cultivated with any other agri cultural crop. If the legislature had intended to ' use the term 'agricultural crop ' in a wide sense so as to take within its fold all species of trees fruit bearing or other wise, it would be unnecessary to have the first limb denot ing only the cashew or other fruit bearing trees. Therefore, there is no indication that the words 'any other agricultur al crop ' in sub clause (C) are quite wide enough to compre hend all species of trees including eucalyptus plantations. These words exclude only fruit bearing trees. [410H; 41 1A D] State of Kerala vs Amalgamated Malabar Estates, A.I.R. 1980 404 Ker. 137; State of Kerala vs Malayalam Plantation Ltd., A.I.R. 1981 Ker. 1 and State of Kerala vs K.C. Moosa Haji & Ors., A.I.R. , approved. In seeking legislative intention, judges not only listen to the voice of the legislature but also listen atten tively to what the legislature does not say. [410G H]

ivil Appeal No. 501 of 1976. Appeal by Special Leave from the Judgment and Order dated the 28th April, 1975 of the Delhi High Court in Civil Revision No. 186 of 1975. Hardayal Hardy, S.K. Bagga, (Mrs.) section Bagga, (Miss) Yesh Bagga and K.K. Mittal for the Appellant. Bikramjit Nayar, B.P. Maheshwari and Suresh Sethi for Respondent. The Judgment of the Court was delivered by BHAGWATI, J. This is an unfortunate litigation where a widow has been kept out of her monies for over six years by reason of wrong application of law by the courts. Much of the travail of the widow could have been avoided if the courts had taken a common~ sense view of the law instead of adopting a rather technical and unimaginative approach. The facts giving rise to this litigation are few and may be briefly stated as follows. The respondent is the owner of a residential quarter bearing No. 1/20 situate at Old Rajendra Nagar, New Delhi. He wanted a loan for the purpose of repaying an earlier debt and he, therefore, approached the appellant and as a result of negotiations between them, an agreement dated 27th September, 1967 was entered into 184 between the parties. This agreement recited that a sum of Rs. 7500/was lent and advanced by the appellant to the respondent and it provided that in lieu of interest on his amount of Rs. 7500/ , the respondent would give to the appellant a portion of his residential quarter (hereinafter referred to as the premises) for temporary residence. The agreement went on to say, and we are setting out the precise terms of the agreement since they are material for the decision of the controversy between the parties: "On, the expiry of two years as stated above the second party shall give one month 's notice in writing to the first party for the said room. If after the expiry of two years fixed period, the first party wants to pay the amount he shall give one month 's notice in writing to the second party. When the first party repays the above stated loan to the second party, then the second party shall vacate the room etc. under temporary residence and give it to the first party. If the first party pays the amount of Rs. 7500/ and the second party does not give possession of the room etc. under her use, then the second party shall be liable to pay Rs. 110/ per month as damages. If the first party does not pay the amount of Rs. 7500/ to the second party on the expiry of the two years period, the first party will not be entitled to recover damages of Rs. 110/ per month from the second party and the second party shall be entitled to take legal proceedings against the first party and also if the first party pays the amount of Rs. 7500/ and the second party does not give possession, the first party shall be entitled to take the legal proceedings regarding vacation of the room etc. under the use of the second party. " Pursuant to the agreement, the respondent handed over pos session of the premises to the appellant and the appellant started occupying the same against interest on the loan of Rs. 7500/ advanced by her to the respondent. The period of the agreement expired on 27th September, 1969 and according to the terms of the agreement, the. respondent could thereafter repay the loan of Rs. 7500/ to the appellant and claim back possession of the premises from her. The case of the respondent was that he addressed a notice dated 26th August, 1969 to the appellant and tendered a ;sum of Rs. 7500/ to her in repayment of the loan, but the appellant refused to accept the same. The 'respondent also addressed another notice dated 4th May, 1970 to the appellant but this notice also had no effect on her. The respondent thereupon filed Suit No. 123 of 1973 in the Court of Sub Judge, 1st Class, Delhi seeking to recover possession of the premises from the appellant. The appellant did not appear to contest the suit and it was decreed ex parte by a judgment dated 22nd May, 1973. The learned subJudge passed a decree for possession of the premises in favour of the respondent but added the following rider: 185 "The plaintiff is ordered to tender the amount of Rs. 7500/ to the defendant within a period of 30 days from today in cash. If the defendant refuses to accept the money, it should be deposited in the Court with notice to the defendant within the aforesaid period. " Now, it appears that prior to the filing of this suit by the respondent, the appellant had filed a suit against the respondent for recovery of the loan of Rs. 7500/ advanced by her to the respondent. The respondent had filed his defence to the suit and various grounds were taken by him, one of which was that the claim was barred by limitation. This suit was pending on 22nd May, 1973 when the ex parte decree was passed against the appellant. The respondent had obviously no desire and perhaps not even capacity to repay the loan of Rs. 7500/ to the appel lant and he, therefore, preferred an application for review under Order XLVII, Rule 1 of the Code of Civil Procedure seeking deletion of the direction given by the learned Sub Judge requiring him to deposit the sum of Rs. 7500/ . The respondent contended that since the appellant has already filed a suit against him for recovery of the amount of Rs. 7500/ ' and he was resisting the suit inter alia on the ground of limitation, it was not competent to the learned Sub Judge to. give such a direction for deposit of the amount of Rs. 7500/ and the giving of such direction was clearly an error of law apparent on the face of the record. The respondent also claimed review on the ground of discov ery of new and important matter in the shape of Suit No. 123 of 1973 filed by the appellant against him. The learned Sub Judge, by a judgment dated 3rd August, 1973 allowed the review application and held that the direction for deposit ing the amount of Rs. 7500/in court should be deleted from the ex parte decree passed against the appellant. The result was that the respondent became entitled to recover possession of the premises from the appellant without paying to the appellant or .depositing in court the amount of Rs. 7500/ in repayment of the loan. Now, unfortunately this order allowing the review appli cation was made by the learned Sub Judge without issuing notice to the appellant. That was obviously bad and, there fore, on the application of the appellant, the learned Sub Judge had to set aside the order and reheat the review application. The same order was, however, once again made by the learned Sub Judge after hearing the appellant and the direction requiring the respondent to deposit the sum of Rs. 7500/ in court was deleted on the ground that such direc tion nullified the effect of the ex parte decree for posses sion and forced the respondent to admit the claim of the appellant for repayment of the sum of Rs. 7500/ , which, according to the respondent, was time barred. The appellant being aggrieved by the order allowing the review application, preferred a revision application to the High Court of Delhi under section 115 of the Code of Civil Procedure. Mr. Justice Avadh Behari, who heard the revision application, took the view that the order allowing the review application was appealable and 'hence the revision application was not competent, but on the alternative view that the revision application lay before the High Court, 186 he proceeded to consider whether the review had been rightly granted and held that the respondent having brought a simple suit for possession, the learned Sub Judge had no jurisdiction to impose a condition requiring him to deposit the sum of Rs. 7500/ , particularly when the appellant 's suit for recovery of the same was pending in that very court and that under the terms of the agreement, all that he was required to do was to tender the sum of Rs. 7500/ and since that was done by him and the appellant had refused to accept the same, he was entitled to a decree for possession. The learned Judge accordingly dismissed the revision applica tion. That led to the filing of the present appeal with special leave obtained from this Court. When the hearing of 'the appeal commenced a contention of a preliminary nature was advanced on behalf of the re spondent and it was that since the order of the learned Sub Judge impugned in revision before the High Court was an order allowing the review application, it was appealable under XLIII, rule 1. (s) of the. Code of Civil Procedure and hence no revision was competent to the High Court under section 115 of the Code of Civil Procedure and the High Court was right in rejecting the revision application. Now, there can be no doubt that under section 115 of the Code of Civil Procedure a revision application can lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court. The words of limitation used ' in section 115 are "in which no appeal lies thereto" and these. words clearly mean that no appeal must lie to the High Court from the order sought to be revised, because an appeal is a much larger remedy than a revision application and if an appeal lies, that would afford sufficient relief and there would be no reason or justification for invoking the revisional jurisdiction. The question, therefore, here is whether an appeal against the order made by the learned Sub Judge allowing the review application lay to the High Court. If it did, the. revision application would be clearly incompetent. Now Order XLIII, Rule 1. cI. (s) undoubtedly provides an appeal against an order allowing a review application, but the order allowing the review application in the present case was made by the learned SubJudge, and hence an appeal against it lay to the District Court and ' not to the High Court, and, obviously, since no appeal lay against the order of the learned Sub Judge to the High Court, the revision application could not be rejected as incompetent. The preliminary contention must. in the circumstances, be decid ed against the respondent. That takes us to the merits of the appeal and the ques tion which arises for consideration on merits is whether the direction requiring the respondent to deposit the sum of Rs. 7500/ in court as a condition of recovery of possession of the premises from the appellant was erroneous in law so as to justly its deletion on review. determination of this question turns on the true interpretation of the agree ment between the parties. If we turn to the agreement it is clear that the loan of Rs. 7500/ was advanced by the appel lant to the respondent for a period of two years and in lieu of interest on 187 the amount of the loan, the respondent handed over the possession of the premises to the appellant and the appel lant was entitled to occupy the same free of rent. We have already set out the relevant portions of the agreement and it appears clearly from those provisions that the re spondent was not entitled to repay the amount of the loan and demand recovery of possession of the premises from the appellant before the expiry of the period of two years. It was only of the expiration of the period of two ' years that the respondent was entitled to repay the amount of the loan and if he wanted to do so, he was required to give one month 's notice in writing to the appellant and on such repayment, the appellant was bound to hand over vacant possession of the premises to him. If, despite the repay ment of the amount of the loan by the respondent, the appel lant failed to hand over vacant possession of the premises to the respondent, she was liable to pay damages at the rate, of Rs. 110/ per month. But if for any reason the respondent failed to repay the amount of the loan on the expiry of the period of two years, he could not claim to recover any damages from the appellant. Clearly the obliga tion of the appellant to hand over vacant possession of the premises to the respondent was concurrent with the obliga tion of the respondent to repay the amount of loan to the appellant and the respondent could not claim possession of the premises from the appellant without making repayment of the amount of the loan. It the respondent tendered a sum of Rs. 7500/ to the appellant in repayment of the amount of the loan and yet the appellant refused to accept the same, the appellant might incur liability to pay to the respondent damages for wrongful use and occupation of the premises, but the respondent could not say that he was exonerated from the obligation to repay the amount of the loan and was entitled to recover possession of the premises without making repay ment of the amount of the loan. The respondent could seek to recover possession of the premises from the appellant only ion condition of making repayment of the loan, because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the other by reason of any refusal on the part of the appellant to accept the tender of Rs. 7500/ from the respondent. We may in this connection refer to the following passage from the judgment in Dixon vs Clark(1) when it said: "In action of debt and assumpsit, the principle of the plea of tender, in our apprehension is, that the defendant has been always ready (toujoure prist) to perform entirely the contract on which the action is rounded; and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluded a complete performances, by refusing to receive it. And, as in ordinary cases, the debt is not discharged by such tender and refusal, the plea must not only go on to. allege that the defendant is still ready (incore prist) but must be accompanied by a profort in curiem of the money tendered. If the defendant can maintain this plea, although he ,will not thereby (1) 188 bar the debt (for that would be inconsistent with uncore prist and profort in curiem) yet he will answer the action. in the sense that he will recover judgment for his costs of defence against the plaintiff in which respect the plea of tender is essentially different from that of payment of money into court. And, as the plea is thus to constitute an answer to the action, it must, we conceive, be dificient in none of the requisite qualities of a good plea in bar. This decision has been quoted with approval in Leaks on Contracts, 8th Ed. at page 663 and it establishes beyond disputation that merely because the plaintiff or the defend ant has tendered the amount due and payable by him and such tender has been wrongly refused by the other party, it does not absolve the first named party from its obligation to make payment of the amount and where the obligation to make payment of the amount is concurrent with the obligation to hand over possession, the claim for recovery of possession must be accompanied by payment or deposit of the amount. The respondent was, therefore, clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant. We may point out that in fact, in the present case, there was no valid tender of the sum of Rs. 7500/ by the respondent to the appellant. The case of the respondent was that he tendered the sum of Rs. 7500/ in cash to the appel lant on 26th August, 1969 but the appellant refused to accept the sum. Now ', we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs. 7500/ in cash to the appellant on 26th August, 1969, but this was obvious ly not a valid tender, because under the terms of the agree ment the respondent could repay the amount of the loan to. the appellant only on the expiry of the period of two years and the date of the agreement being 27th September, 1967, the period of two years expired on 26th September, 1969. The respondent could not validly tender the sum of Rs. 7500/ to the appellant in repayment of the amount of the loan until 27th September, 1969 and the tender made by him on 26th August, 1969 was clearly invalid. It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September, 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs. 7500/ . Now, if the re spondent did not at any time validly tender payment of the sum of Rs. 7500/ to the appellant, the appellant obviously did not become liable to hand over possession of the prem ises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by 'the respondent against the appellant. It was pointed out to us on behalf of the respondent that he had already filled. suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits, namely Suit No. 800 of 1975 had been decreed by the Sub Judge, 1st Class and Civil Appeal No. 9 of 1975 preferred by the appellant against it had been dismissed by the 189 Additional District Judge, Delhi on the basis that the respondent had made a valid tender of the sum of Rs. 7500/ to the appellant and since the appellant had refused to accept the same, she was in wrongful use and occupation of the premises from the date of the tender and was, therefore, liable to pay compensation to the respondent from that date. This is true, but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties. More over, this decision is under appeal before the High Court. But, apart from that, we do not think this decision is correct, because, on the view we have taken, the respondent was not entitled to tender the sum of Rs. 7500/ to the appellant before 27th September, 1969 and even if a tender was made by him on 26th August, 1969 as alleged by him, the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises. It is only if the respondent made a valid tender of the sum of Rs. 7500/ to the appellant on or after 27th September, 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case, there was no obligation on the appellant to deliver possession of the premises to the respondent. The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs. 7500/ in court in repayment of the amount of the loan. The High Court as well as the learned Sub Judge were, therefore, in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs. 7500/ in repayment of the amount of the loan should be deleted. It was a correct and valid direc tion and it was rightly introduced in the original ex parte decree passed by the learned Sub Judge. We accordingly allow the appeal, set aside the order allowing the review application passed by the learned Sub Judge as also the order of the High Court rejecting the revision application. The original ex parte decree for possession together with the direction requiring the re spondent to pay or deposit the sum of Rs. 7500/ in court will stand, but since possession of the premises has already been taken over by the respondent in pursuance of the ex parte decree for possession, we direct that the respondent do pay to the appellant the sum of Rs. 7500/together with interest thereon at the rate of 9 per cent per annum from the date when possession of the premises was taken by the respondent up to the date of payment. The respondent will pay to the appellant costs of the appeal as also costs of the review application before the Sub Judge and the revision application before the High Court. P.B.R. Appeal allowed.

The appellant was a tenant occupying two rooms in the residential house of respondent No. 2. He used one room for living purposes and the other as a tailoring shop. The landlady brought a suit for his eviction on the ground of personal requirement. but the same was dismissed by the District Magistrate. An appeal to the District Judge Dehra dun was allowed, and Explanation (iv) to section 21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 was held applicable. The view was upheld by the High Court in petition filed by the appellant who con tended that due to his shop the house under tenancy had ceased to be a residential building and that Explanation (iv) was not applicable. The High Court rejected the peti tion. Dismissing the appeal, the Court HELD: Explanation (iv) provides a conclusive and irre buttable presumption of bona fide requirement once the conditions mentioned therein are established. The tests for application of Explanation (iv) are as follows: (1) The building should be a residential building; and (2) The landlord must be in occupation of a part of the building for residential purposes, the other part being in the occupation of the tenant. If the above two tests are fulfilled in a case, there is no need for the landlord to establish any other requirement. [172F H] (2) The fact that a tailoring shop is run in one of the rooms is not sufficient to convert what otherwise to all intents and purposes is a residential building, into a non residential building. [172E F]

N: Criminal Appeal No. 318 of 1978. From the Judgment and order dated 29th and 30th April, 1976 of the High Court of Bombay in Criminal Appeal No. 1044 of 1973 A.S. Bhasme for the Appellant. 909 Prem Malhotra for the Respondent. The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by special leave by the State of Maharashtra, arises out of and is directed against the judgment, dated, April 29 30, 1976 of the High Court of judicature at Bombay in Criminal Appeal No.1044/73 on its file setting aside respondent 's conviction and sentence dated, 21.7.73, under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act of 1947 ( 'Act ' for short) in Special Case No. 24/70 on the file of the Special Judge, Greater Bombay. The special judge held respondent guilty of the charge of Criminal Misconduct in that respondent was in possession of property and pecuniary resources, disproportionate to his known sources of income for which he could not satisfactorily account; and sentenced respondent to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.20,000. The High Court allowing respondent 's appeal before it acquitted him of the charge. The State has come up in appeal. At the relevant time, respondent Pollonji Darabshaw Daruwalla was an Appraiser in the customs department at Bombay. He and several other customs officers were suspected of their complicity in certain offences, concerning export of stainless steel ware to Hongkong. On 9.12.1968, Police inspector (PW 34), armed with a warrant in this behalf searched the residential premises of the respondent in the course of the investigation of that case. Though nothing incriminatory for purpose of that investigation was discovered; however, the search revealed respondent 's possession of furniture, refrigerator, tape recorder and cash of Rs.7593 which were susceptible of the suspicion of the commission of an offence under Section 5(1)(e) read with Section 5(2) of the 'Act '. PW 34, accordingly, obtained the requisite authorisation to investigate into this offence and after investigation, sought and obtained on 26. 10.1970 sanction to prosecute respondent. On 2.11.1970, the charge sheet was placed against the respondent for an offence under Section 5(1)(a) read with 5(2) of the Act. The substance of the charge was that respondent, as a publicservant, between the period of 1.4.1958 and 31.12.1968 was in 910 possession of pecuniary resources and property of the value of Rs.2,62,122.15; that his known sources of income during the said period was Rs.85,114.12; that, therefore, the property possessed by the respondent was disproportionate to his known sources of income to the extent of Rs.1,71,647 for which respondent could not satisfactorily account and that, thereby respondent was guilty of Criminal Misconduct within the meaning of and punishable under Section 5(2) of the Act. Respondent having pleaded not guilty, the matter went for trial . In support of the charge, the prosecution examined 34 witnesses. A number of documents pertaining to the respondent 's investments in Banks; in company deposits; and on shares both in his own name and jointly with his wife, as also documents pertaining to the salary and emoluments of the respondent between 1.4.1958 and 31.12.1968 were brought on record and marked in evidence. In the course of the trial, for the most part, respondent was not defended by a counsel. Many of the prosecution witnesses were not cross examined. It was only at a late stage of the proceedings that an advocate appeared for him. From what is disclosed by the trend of the answers, in the course of the examination under Section 342 Cr. P.C., the possession of the assets in the form of investments in Fixed Deposits with Banks and with companies and on shares in the joint name of the respondent and his wife was not disputed. The defence was that respondent was in possession of substantial assets even anterior to 1.4.1958 and that respondent had also derived substantial assets from his wife 's side. His wife was stated to be the only daughter of a practising doctor. Respondent also claimed that he and his daughter were in receipt of gifts from his mother. The trial court went through the somewhat complex exercise of computing and collating the particulars of the investments, made by the respondent in his own name and in the name of his wife from time to time over the years. In Chart No. I, appended to and forming part of its judgment the trial court formulated what, according to it, were the results of the collation of these particulars as to the receipts and investments for the various years. In Chart No. II, the pay and emoluments which respondent was in receipt of, for and during the relevant period were set out. In Chart No. III, the trial court has set out the amounts of interest and dividends received by the respondent during the relevant years. 911 6. The substance of the outcome of the exercise by the trial, in A relation to the total income of the respondent for the relevant period was referred to and summarized by the High Court thus: "The total of all these items aggregate of Rs.169736.69. It is urged on behalf of the State that out of this, estimated expense of Rs.31,114.47 should be deducted because they were not available to the respondent to be accumulated as his assets. So the total sources available to him were Rs.1,38,621.83. " Referring to the total assets acquired by the respondent during the relevant period and the extent of the disproportion, the High Court noticed the results of the findings of the trial court thus: "It was urged that the total assets being Rs.2,21,606.45, the assets of worth Rs.827984.23 were in excess". We have heard Shri Bhasme, leamed counsel in support of the appeal and Shri U.R. Lalit, who was requested to assist the court as Amicus Curiae in view of the circumstance that respondent remained unrepresented. Learned Counsel have taken us through the judgment under appeal and the evidence on record on the material points. From what we can gather from the somewhat spread out reasoning of the High Court, the considerations that principally weighed with the High Court in reaching such conclusions as it did on the material points in controversy before it, admit of being formulated thus. (a) That the selection of the particular period (from 1.4.1958 to 3 1.12.1968) for the ascertainment and determination of disproportionate assets is itself arbitrary and caused prejudice to the respondent; The period of reckoning should have been from 1946 to 1968 as that would have given a fuller and a more complete picture; (b) That it was erroneous to proceed as was done by the trial H 912 court on the premise that respondent was the beneficial owner of the joint bank investments where his name was not the first name; That prosecution had failed to establish and it was erroneous on the part of the trial court to have assumed B that in respect of the deposits in which the wife 's name occurred first and respondent 's name second, the respondent alone was the beneficial owner (c) That the deduction of Rs.41,839.17 as the carried forward assets from the period prior to 1.4.1958 was inadequate and it should have been Rs.56,822. The effect of this would be that the whole of the investments made in the first year of the accounting period viz, 1954, would be absorbed by the higher assets so carriedforward; (d) That a sum of Rs.6,000 which was the value of the probable gift from the mother and Rs.1,275 representing the brokerage on the fixed deposits had to be given credit to the respondent on the resources side; (e) That from the bank account of Veera Bai, the wife of the respondent, a sum of Rs.82,827.99 had been with drawn during the period between 1.4.1958 and 31.12.1968 and that only Rs.31,010.12 had been given credit to on the plus side in the accounting and that the balance of Rs.51,815.87 should be treated as belonging to Veera Bai in joint investments and should, therefore be excluded from the value of respondent 's assets. The High Court, on the basis of these re calculations, held that in all a sum of Rs.77,215,03 could not be treated as the assets of the respondent and had to be deducted from a sum of Rs.2,21,66.45. In other words, the High Court held that the value of the assets of Rs.82,984.23 said to be in excess of and disproportionate to the known sources of income should be reduced by Rs.77,215.03. Concluding, the High Court observed: "32. Now comes the question, whether a man after serving for 22 years from 1946 to 1968, on the prosecution own 913 showing, is able to save Rs. 1,38,822 can it be said that the assets of Rs. 1,41,495 as observed by us, are disproportionate assets as required under Section 5(1)(e) of the Act. In this connection, in our opinion, the difference is so negligible that it cannot be said to be disproportionate". Shri Bhasme for the appellant seriously assailed the reasoning of and the conclusion reached by the High Court on these points and more particularly on the points noticed at (a) and (b). Learned counsel submitted that the view of the High Court on points (a) & (b) was manifestly erroneous and the High Court misdirected itself in law on these propositions. We are inclined to agree with the learned counsel on the submission on points (a) and (b). In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant. There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under Section 5(1)(e) of the 'Act '. The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of by the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probablised, would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion. On this aspect, the High Court observed: ". 20. But at the same time, it has also to be remembered that the prosecution, without showing any reason has selected to begin the calculation of the assets from 1958. I do not see any substantial reason in the selection of the year 1958. It is on record that from 1954, the accused had 914 become the Appraiser. It is also on record that from year 1958 the accused had separated from his brother mother after the child was born to his wife. When I a the Public Prosecutor for the reason for selecting the period of 1958 to 1968, he said that it was done because the prosecution could lead evidence so as to show that the investment during these 10 years would be disproportionate of assets compared to the moneys received. Looking to the logic of the prosecution, if amounts invested upto 1958 excluded by themselves, I see considerable force in Vashi 's arguments that the first year of 1958 should also be considered along with the previous years. There is no charm in selecting the year. I think that the prosecution would have been in a better position instead of selecting the period of 1958 to 1968, it had taken the entire period service from 1946 to 1968 and given credit of the amount that he has earned against all the assets that he had collected. It is therefore difficult to understand why the prosecution has chosen the period from 1958 to 1968 ". 20. We have carefully considered this evidence of the Police Inspector but still we are not convinced about the selected of the period. We feel that the prosecution by selecting the check period of 10 years, when the accused had put in service from 1946 to 1968, i.e. for 22 years has done something whereby the chances of prejudicing the case of the accused are there 11. The assumptions implicit in the above observation of the High Court suffer from a basic fallacy. It is for the prosecution to choose what according to it, is the period which having regard to the acquisitive activities of the public servant in amassing wealth, characterise and is late that period for special scrutiny. It is always open to the public servant to satisfactorily account for the apparently disproportionate nature of his possession. Once the prosecution establishes the essential ingredients of the offence of Criminal Misconduct by proving, by the standard of criminal evidence, that the publicservant is, or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satis 915 factorily account for the possession of such properties and pecuniary resources. It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant. Indeed in State of Maharashtra vs Wasudeo Ramchandra, A.I.R. 1981 SC 1189 this Court characterised the approach of that kind made by the High Court as erroneous. It was observed: " . The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under Section 5(2) read with Sections 5(1)(e) of the Act unless the prosecution disproves all possible sources of income In the present case, the selection of a ten year period between 1.4.1958 and 31.12.1968 cannot, by reason alone of the choice of the period, be said to detract from the maintainability of the prosecution. Equally erroneous, in the view of the High Court on the proposition noticed at point (b). The assumption that in all jointdeposits, the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous. The matter is principally guided by the terms of the agreement, inter se, between the joint depositors. If, however, the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed. There is no such material before the court in this case. Indeed, the answers of the respondent to the specific questions under Section 342 Cr. P.C. pertaining to the nature of the deposits and the suggestion implicit in the questions as to the beneficial ownership in the respondent in the deposits do not support the view of the High Court and lend credence to any doubts in the matter. Respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under Section 342. The view of the High Court on point (b) is clearly unsustainable. However, these errors of approach and of assumption and inference in the judgment under appeal do not, by themselves, detract from the conclusion reached by the High Court that, in the ultimate analysis, the prosecution has not established the case against respondent beyond reasonable doubt. 916 The discussion of and the conclusion reached on the contents and parts (c) to (e) by the High Court tends to show that the disproportion of the assets in relation to the known source of income is such that respondent should be given the benefit of doubt though however, on a consideration of the matter, if cannot be said that there is no disproportion or even a sizeable disproportion. For instance, Shri Bhasme is right in his contention that the acceptance by the High Court of the case of the alleged gift from the mother is wholly unsupported by the evidence. There are also other possible errors in the calculations in regard to point(e). The finding becomes inescapable that the assets were in excess on the known sources of income. But on the question whether the extent of the disproportion is such as to justify a conviction for criminal misconduct under Section 5(1)(e) read with Section 5(2), we think, we should not, in the circumstanees of the ease, interfere with the verdict of the High Court as, in our view, the difference would be considerably reduced in the light of the factors pointed out by the High Court. A somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for purpose of Section 5(1)(e) of the Act. We think that the respondent should have the benefit of doubt. The appeal is accordingly dismissed. S.L. Appeal dismissed.

% The respondent, Pollonji Darabshaw Daruwalla, was an appraiser in the Customs Department. The police searched his residential premises on a suspicion of his complicity in certain offences concerning the export of the Stainless Steel Ware, in the course of the investigation of that case. Though nothing incriminatory for the purpose of that investigation was discovered, the search revealed that the respondent was in possession of property and pecuniary resources, disproportionate to his known sources of income between 1.4.1958 and 31.12.1968, for which he could not satisfactorily account for. This led to the suspicion of the commission by the respondent of an offence under the Prevention of Corruption Act, 1947, and the respondent was charge sheeted for an offence under section 5(1)(e), read with section S(2) of the Act. In support of the charge, a number of documents pertaining to the respondent 's investments in the banks, in the company deposits and on shares, both in his own name and jointly with his wife, as also the documents pertaining to the salary and emoluments of the respondent between 1.4.1958 and 31.12.1968 were brought on record in evidence. The defence was that the respondent was in possession of substantial assets even anterior to 1.4.1958. The Special Judge held the respondent guilty and sentenced him to rigorous imprisonment and fine. The respondent filed an appeal before the High Court against the Judgment and order of the Special Judge. The High Court allowed the appeal and acquitted the respondent. The State appealed to this Court by special leave against the decision of the High Court. Dismissing the appeal, the Court, ^ HELD: In order to establish that a public servant is in possession of pecuniary resources and property disproportionate to his known 907 sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant. There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under section S(1)(e) of the Act. The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of the income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate. A ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probablised, would, of course, have to be given credit to on the income side and would go to reduce the extent and quantum of the disproportion. It is for the prosecution to choose what is the period, having regard to the acquisitive activities of the public servant, and characterise and isolate that period for special scrutiny. In this case, the selection of a ten year period between 1.4.1958 and 31.12.1968, cannot, by reason alone of the choice of the period, be said to detract from the maintainability of the prosecution, and the view of the High Court on these points is erroneous. [913C F; 914E; 915C D] Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving, that the public servant is, or was, at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution has discharged its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources. It is erroneous to predicate that the prosecution should also disprove the existence of the possible source of the public servant. [914G H; 915A B] Equally erroneous and unsustainable is the view of the High Court on the proposition that the respondent was not the beneficial owner in the joint bank investments where the respondent 's name was not the first name but his wife 's name occurred first. The assumption that in all the joint deposits, the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest, is erroneous. The matter is principally guided by the terms of the agreement, inter se between the joint depositors. If, however, the 908 terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed. There was no such material before the Court in the case. The respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under section 342, Cr. P.C. [915D G] However, though there are errors of approach and of assumption and inference in the judgment under appeal, they did not by themselves detract from the conclusion reached by the High Court that in the ultimate analysis, the prosecution had not established the case against the respondent beyond reasonable doubt. The conclusion reached by the High Court tends to show that the disproportion of the assets in relation to the known sources of income was such as to entitle the respondent to be given the benefit of doubt, though, however, on a consideration of the matter, it could not be said that there was no disproportion or even a sizeable disproportion; for instance, the acceptance by the High Court of the case of receipt by the respondent of the alleged gift from his mother, was wholly unsupported by the evidence. There were also other possible errors in the calculations in regard to the carried forward assets, etc. The finding became inescapable that the assets were in excess of the known sources of income. But on the question whether the extent of the disproportion was such as to justify a conviction for criminal misconduct under section 5(l)(e) read with section 5(2), the Court thought it should not, in the circumstances of the case, interfere with the verdict of the High Court, as, in the Court 's view, the difference would be considerably reduced in the light of the factors pointed out by the High Court. A somewhat liberal view was required to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for the purposes of section 5(1)(e) of the Act. [915G H; 916A D] The respondent should have the benefit of doubt. State of Maharashtra vs Wasudeo Ramachandra, A.I.R. 1989 S.C 1189, referred to. [916E]

l Leave Petition (Civil) No. 3786 of 1982. From the Judgement and Order dated the 21st April, 1978 of the Calcutta High Court in Income Tax Reference No. 573 of 1971. K.C. Dua and Miss A. Subhashini for the Petitioner. The Judgment of the Court was delivered by VENKATARAMIAH, J. This Special Leave Petition is filed under Article 136 of the Constitution by the Commissioner of Income tax, West Bengal, Calcutta against the decision of the High Court of Calcutta in Income tax Reference No. 573 of 1971. The respondent, Dalhousie Properties Limited was an assessee under the Income tax Act, 1961 (hereinafter referred to as 'the Act ') in the assessment year 1966 67, the relevant previous year being the year ending March 31, 1966. It owned extensive properties and its income from rents realised was substantial. In the assessment year in question, the assessee claimed a deduction of Rs. 1,78,784 which represented the tax levied by the Corporation of Calcutta as a deductible item while computing its income from house property. It appears that the assessee had questioned the extent of liability which had just then been enhanced before the Corporation and on that account had not actually paid the whole of it. This led to a difference of opinion between the department and the assessee. In course of time the dispute regarding the assessment of the liability of the assessee under the Act reached the Income tax Appellate Tribunal. The Tribunal held that the total liability for municipal taxes which the assessee could claim by way of deduction under the proviso to section 23 (1) of the Act in respect of the buildings during the accounting year was Rs. 1,78,784 and that the said amount was to be allowed as a deduction irrespective of the fact that the assessee had raised a dispute about the extent of the liability before the Corporation and that the assessee had not paid the whole of it to the Corporation of Calcutta. Aggrieved by the 615 above decision of the Tribunal, the Department got the following question referred to the High Court under section 256 (1) of the Act: "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the full taxes levied by the Corporation of Rs. 1,78,784 should be deducted under section 23 (1) of the Income tax Act, 1961? The High Court answered the above question in the affirmative and in favour of the assessee. This petition is filed against the said decision of the High Court. The material part of section 23, as it stood in the assessment year 1966 67 read as follows: "23. Annual value how determined. (1) For the purposes of section 22 the annual value of any property shall be deemed to be the sum for which the property might reasonably be expected to let from year to year: Provided that where the property is in the occupation of a tenant and the taxes levied by any local authority in respect of the property are under the law authorising such levy payable wholly by the owner, or partly by the owner and partly by the tenant, a deduction shall be made equal to the part if any of the tenant 's liability borne by the corner. . " Under section 22 of the Act what is chargeable to income tax under the head 'Income from house property ' is the annual value of property consisting of any buildings or lands appurtenant thereto of which the assessee is the owner other than such portions of such property as he may occupy for the purpose of any business or profession carried on by him the profits of which are chargeable to income tax. As explained by this Court in Bhagwan Dass Jain vs Union of India(1) income tax is payable under this provision in respect of the bona fide annual value of the property determined as provided in section 23 of the Act. Section 23 (1) laid down the principle according to which the annual value of any property could be 616 nationally determined during the relevant period. First, the sum for which the property in question might reasonably be expected to let from year to year had to be ascertained. From that as per the proviso to section 23 (1) of the Act where the property was in the occupation of a tenant, if taxes levied by a local authority in respect of it were to be borne by the owner, they had to be deducted to the extent mentioned therein and the balance should be deemed to be the annual value which would be liable to tax subject to the other provisions of the Act. The object of the proviso was that where the tenant of the property had undertaken to bear any part of the taxes levied by the local authority, the owner could not be allowed to claim deduction in respect of it. It may be stated here that the proviso to section 23 (1) as it stood at the relevant time had not been happily worded. It has been since suitably modified. The only point canvassed before the High Court and before us is whether the expression 'borne by the owner ' would refer to the amount of tax which the owner was liable to pay or the amount of tax which he had actually paid in discharge of the said liability. It is true that the expression 'borne ' may refer to either the liability which a person is liable to discharge or the actual sum paid by him in discharge of that liability. But we agree with the High Court that in the present context it should be construed as referring to the former namely, the amount of tax which the owner is liable to discharge as stated in the proviso to section 23 (1) of the Act and not the latter one. The reason for taking this view flows from the scheme of the Act itself. As mentioned earlier, the expression 'annual value ' is a national figure and it does not refer to any actual receipt. It is arrived at by deducting the taxes levied by a local authority for paying which the owner has assumed the responsibility from the sum for which the property might reasonably be expected to let from year to year. It is reasonable to treat the annual value of a house property as remaining more or less constant during the entire period covered by any given previous year except perhaps where the tax liability itself is modified by the local authority concerned. It cannot keep on changing as and when some payment towards the tax liability imposed by the local authority is made by the assessee during the year. In order to ensure that there is no unwarranted fluctuation in the annual value during the year in question such actual payment should be eliminated from consideration but only the tax liability imposed by the local 617 authority which the assessee is liable to pay as contemplated by the proviso to section 23(1) of the Act should be allowed to be deducted under the said proviso. It is not, therefore, necessary that the assessee should have actually paid the amount of tax in question before such deduction is claimed. The position is not also different even where the assessee has disputed the correctness of the levy be. fore the local authorities concerned. A mere expection of success in the proceedings in which the asessee has disputed such levy does not disentitle him to the statuory deduction on the basis of the levy which is in force. The High Court was, therefore, right in deciding the case in favour of the assessee. The Special Leave Petition is therefore, dismissed. H.S.K. Petition dismissed.

The question was whether the expression 'wages ' as defined in section 2 (22) of the includes 'House ' Rent Allowance ', Night Shift Allowance ' 'Heat, Gas and Dust Allowance ' and 'Incentive Allowance ' paid by an employer to his employees, ^ HELD: By the Court 1. is a piece of social welfare legislation. The definition of 'wages ' is designedly wide. The definition on its plain reading is clear and unambiguous. Even if there is any ambiguity, the expression has to be given a liberal interpretation and receive beneficent construction.[714C] 2. 'Wages ' as defined in section 2 (22) of the must necessarily include 'House Rent Allowance ', 'Night Shift Allowance ', 'Heat, Gas and Dust Allowance ' and 'Incentive Allowance '. [715C] Braithwaite & Co. (India) Ltd. vs The Employees ' State Insurance Corporation, [1968]1 S.C.R. 771, referred to N.G.E.F. Ltd. vs Deputy Regional Director, E.S.I.C., Bangalore, and Employees ' State Insurance Corporation, Hyderabad vs Andhra Pradesh Paper Mills Ltd., Rajahamundry, , approved. Bengal Potteries Ltd. vs Regional Director, W. Bengal Region, Employees 713 State Insurance Corporation and others, [1973] LAB. I.C. 1328 (V , over ruled. Per Chinnappa Reddy, J. Wages as defined in section 2 (22) of the Act includes not only remuneration paid or payable under the terms of the contract of employment, express or implied but further extends to other additional remuneration, if any paid at intervals not exceeding two months, though outside the terms of employment. [714G] 'Remuneration ' under the first clause has to be under a contract of employment, express or implied while 'remuneration ' under the third clause need not be under the contract of employment but may be any 'additional remuneration ' outside the contract of employment, [715B] Per Amarendra Nath Sen, J. The inclusive part and the exclusive portion in the definition of 'wages ' in section 2 (22) clearly indicate that the expression 'wages ' has been given a very wide meaning. The inclusive part of the definition read with the exclusive part in the definition clearly shows that the inclusive portion is not intended to be limited only to the items mentioned therein. Taking into consideration the excluding part in the definition and reading the definition as a whole the inclusive part, is only illustrative and tends to express the wide meaning and import of the word 'wages '. [717H; 718A B]

ition No. 214 of 1979. (Under Article 32 of the Constitution) section Balakrishnan and M. K. D. Namboodiri for the Petitioners. Lal Narain Sinha Attorney General and Miss A. Subhashini for Respondent No. 1. Shanti Bhushan, Jitendra Sharma, V. P. Choudhry and R. L. Gupta for the Respondents Nos. 3, 4 & 5. The Judgment of Krishna Iyer, and O. Chinnappa Reddy, JJ was delivered by Iyer, J., R. section Pathak, J. gave a separate concurring Opinion. KRISHNA IYER, J. Many a case in this Court is the dramatisation. on the forensic stage, of social stress or community conflict which seeks resolution or release through the litigative process. This Writ Petition turns the focus on one such tense issue and ventilates a widespread grievance which deserves constitutional examination. The petitioner, Dr. Ramesh, is a medical graduate from the Madras University. His father, an officer under the Central Government, was transferred to Delhi and the son, desirous of taking a post graduate degree in Dermatology, applied for admissions to the University of Delhi which offers that course. He took the common entrance test and secured enough marks to qualify for admission but was turned down because of a rule reserving 70% of the seats, at the post graduate level, to Delhi graduates (if we may use that abbreviation for describing student applicants who have taken their M.B.B.S. degree from the University of Delhi). The remaining 30% was open to all, including 836 graduates of Delhi. This rule was made in April 1978 in modification of the earlier reservation of 48%. Had this inflation (from 48% to 70% plus) not been made, the petitioner admittedly would have been granted admission. So what blocked his right to post graduate entry was this rule of institutional quota of 70% which accorded a disproportionate premium in favour of Delhi graduates. The other petitioners are no longer in the race having secured lesser marks at the entrance test, and so the judicial lens must be fixed on the validity of such a considerable reservation or virtual monopoly for the Delhi graduates. The petitioner challenges its vires as violative of articles 14 to 16 and seeks the court 's writ to direct the respondent University to admit him to the M.D. course (Dermatology). While litigating for his right to a seat in the postgraduate degree course in dermatology, he is now doing his diploma course in the same subject in the same University, which is inferior to his aspiration and entitlement if the right to equality is fatal to the quota policy. We are not investigating the plea based on article 16 because it is not clear whether the stipend paid to a post graduate student makes the course an employment and, apart from that, the meat of the matter is whether there is discrimination. If there is, articles 14 and 15 are lethal enough, without resort to article 16. The University of Delhi (we may use the shorthand form 'Delhi University ' hereafter) refutes this challenge and justifies the reservation in the concrete educational plight of Delhi graduates as an inevitable evil, if it be evil because of the exclusivism practised by every other university. An institutional quota is not invariably a constitutional anathema and, in the present case, the Delhi University offers an explanation for this recourse to higher institutional reservation. Many universities now adopt the exclusionary or segregative device of de facto monopoly of seats for higher medical courses to its own alumni, Indians from other Indian Universities being treated as aliens. This xenophobic trend has forced the Delhi University to reciprocate with high reservation. If reservation of seats, as a strategy of admission to technical colleges, is void there may be a wider impact on a number of the institutions and individuals than on the parties here. The law laid down by this Court binds other institutions because article 141 is imperative. Sri Shanti Bhushan, appearing for the University, assertively suggested to the contrary remembering only the rule of res judicata, but later realised the obvious error and recanted. He agreed that if 837 this Court invalidated reservation, as such, many universities would be upset in their admission processes, although they were not party a weakness of the adversary system which needs remedying. So, we invited the learned Attorney General also to help the Court, which he did and we record our gratitude. Unfortunately, the petitioner has not been able to present, the social facts, the educational milieu, the statistical materials and other vital data bearing on the constitutional vice of the rule of excessive reservation, and the respondent University, despite our repeated suggestions to its counsel, has not enriched its brief with sufficient facts which enlighten the court, although some additional information has been brought in. On the other hand, counsel 's submissions were scary, if we may say so with respect, to the effect that when students went on a fast unto death, Government had to intervene and save the situation and provide larger reservation. As the Attorney General agreed, hunger strikes cannot amend the Constitution, and Government, if impressed with the grievance which has led to the protest fast, must set in motion changes in the basic law, as was done in the first constitutional amendment and later for States Reorganisation. When this flaw was pointed out to the respondent, some more materials were placed before the court in justification of the increase in the reservation quota from a constitutional angle, and we will deal with them. In the adversary system, advocacy in the superior courts, which, their decisions, declare the law for all must broaden beyond the particular lis into a conspectus of sociological facts, economic factors and educational conditions so that other persons aggrieved who will potentially be bound by the decision, do not suffer by not being co nominee parties. Surely, on the available material, counsel have done their best. This preliminary narration leads upto the constitutional problem that confronts the court in this petition under article 32 and stresses how it deserves, for its solution, serious and sensitive judicial and administrative statesmanship enlivened by legal fundamentals, since the crucial issue springs from the pervasive and protective tendency for institutional reservation of post graduate seats, which, if left uncanalised and indulged in excess, may well imperil the integrated status of higher national education and make a mockery of equal opportunity. Basically, great constitutional issues cannot be divorced, even while being viewed from a legal perspective, from their national overtones and individual impact, since passionate provincialisation and addiction to institutional xenophobia, even in higher education, have a suicidal fascination beyond myopic political perception. And, on the contrary, elitist exaggeration of 'national ' considerations and personal merit, where local protection is essential for the humbler people 's interests, has a depressing repercussion if pushed beyond a point an aspect which expert policy makers 838 sometimes overlook in unwitting promotion of their group interest. The problem is complex and thorny, charged with practical difficulties and fraught with explosive possibilities. A short cut, in such situations may well prove a wrong cut and so we are circumspect in our assessment and tentative in our conclusions, especially because counsel, in our adversary system, often do not travel beyond the narrow needs of the case and, despite our prodding, we have not received the social statistical wealth of material to help us take a comprehensive overview of the issue. Law, constitutional law, is not an omnipotent abstraction or distant idealisation but a principled, yet pragmatic, value laden and result oriented, set of propositions applicable to and conditioned by a concrete stage of social development of the nation and aspirational imperatives of the people. India To day that is the inarticulate major premise of our constitutional law and life. We highlight these basics because Shri Shanti Bhushan, for the University, pleaded for a practical appreciation of the lot of the Delhi graduates excluded from everywhere else while Shri Balakrishnan for the petitioner, pressed for a national approach to high grade talent vis a vis courses in specialities. A synthesis of both is where the truth lies. The key to this case, if we may anticipate ourselves, is in harmoniously blending developmental necessities of backward regions via institutional reservations and national considerations of everybody 's equal opportunity for higher education being ensured regardless of geographical, institutional or other inhibition. We must never forget two values synthesised in our constitutional culture, as set out in the Preamble unity and integrity of the nation and equality of opportunity of weaker sections. Without the latter becoming a sure reality the former may be mere rhetoric ! An epitome of the social background leading upto the controversy will give a hang of the case and elaboration may await a later stage. Post Independence India has many universities with facilities for higher learning. Most of them give institutional preferences in the allocation of seats for technical courses and this tendency sometimes reaches the morbid point of total cornering of seats at post graduate level, especially in the coveted and competitive branches like medicine. The Delhi University which has M.B.B.S. and post graduate medical courses, exercises academic jurisdiction over the affiliated colleges in the capital of the country, enjoys great prestige for its schools of learning and excellence in teaching and is founded by the Central Government. It has at once a territorial limitation and national complexion and it caters to a population, by and large, drawn from all over the country because of the vast official, political, parliamentary judicial, educational, commercial and other gravitational pulls which the capital of the 839 country inevitably exerts. This population is fluid because of movements, transfers and a host of other factors. The indigenous denizens of Delhi are perhaps over run by these super imposed layers and the student community of the Delhi University is not made up so much by the 'sons of the soil ' as in universities in other places but is accounted for by the inflow of groups drawn from all over the country. In a limited sense, it is a microcosm if India is a macrocosm. This national demographic composition is relevant to the examination of the 'reservation ' problem. The capital city is not just a part of India. It is miniaturised India, a fact often forgotten by the administration in the field of culture and education, especially vis a vis regional minorities. It is magapolitan and people from all parts flock to this outsized city. But we cannot exaggerate this factor, for the presence of the farther regions like the South and the North East, population wise, is minimal and precarious. Shri Balakrishnan insisted that the University was sustained by Central Government finances, collected from the whole country, and the benefits must likewise belong to all qualified students from everywhere. These are valuable aspects to shape policy but the court must test constitutionality and no more. To that extent alone we will weigh these factors in moulding our verdict. We will now identify the issues emerging from the matrix of facts. Since Shri Shanti Bhushan laid stress on these factors, viz. the satyagraha crisis created by the students, the obdurate, may be, even obscurantist, exclusiveness of other Universities forbidding Delhi graduates from getting admission in their colleges and the reasonableness of institutional continuity in educational pursuits for students who enter a university for higher studies, we must dilate on the foundational facts more fully. Since Sri Balakrishnan emphasised the pathetic plight of meritorious students if 'apartheid ' policies were practised by universities, contrary to the cultural unity and constitutional mandates of our nation, we must weave into the legal fabric of 'admission ' regulations strands of national integration and equal opportunity for higher education. These rival contentions justify, albeit a little repetitively, the recapitulation of recent events, parochial realities and institutional behaviour, bearin on admissions to colleges in the Delhi University, with some comparative glance at others in the country. We are concerned with three medical colleges, two being affiliated to, and one being maintained, by the Delhi University. Together they turn out annually around 400 medical graduates. These graduates get house jobs in the local hospitals and qualify themselves for 840 post graduate courses. The University has many post graduate degrees and diploma courses but all of them put together come to only 250 seats. Naturally, the graduates from the Delhi University cannot be accommodated fully or even in part for the post graduate degree courses. If, out of the available seats for the post graduate courses, a large slice is thrown up for open competition and students from all over the country swarm to take the entrance examination, the Delhi graduates ' prospects become bleaker. The further case of the University is that there is a harsh handicap for these graduates in that they are not considered for admission in other universities on account of various regional hurdles such as prescription of domicile, graduation in that very university, registration with the State Medical Council, service in the State Medical Service and the like. The necessary consequence of these road blocks in the way of getting into post graduate courses is dissatisfaction frustration, fury and pressure for exclusive earmarking of all seats at the post graduate level in the Delhi University for the Delhi graduates. Reservation elsewhere breeds reservation here. Good and evil become contagious and indivisible and eventually over powering. The chain reaction had led to the principle of reservation being accepted by the Delhi University, first in moderate measure and next immoderately, maybe, because the pressure of militant Delhi graduates forced the University 's hands or because Government, which virtually forced this solution of 70% plus reservation, acted on the easy guidelines : Nothing succeeds like excess. Reservation begins as a mild remedy but becomes, unless leashed, a Frankensteins monster. The rule for selection of candidates until April 1978 was as follows : (a) For the first 52% seats of the total number of seats available, the selection was to be made on the basis of combined merit of Delhi University and other Universities medical graduates. (b) The selection of the remaining 48% seats was to be made from the Delhi University graduates only. By this method, approximately half the number of seats were reserved for the Delhi graduates. But having regard to the figures of seats and turn out of graduates earlier mentioned, this did not meet the requirements of the aspirants for post graduate degrees from Delhi. It must be remembered that Delhi is the seat of the elite, of high officials, of prosperous professionals, of rich businessmen, of important politicians and echelons of consequence and other men of money power. 841 Their sons and daughters, already fed on superior facilities and coached in special schools beyond the reach of most other students in the rest of the country, have an appetite and opportunity for excellence in education ahead of others and wish to lap up all the post graduate seats, if possible. The cream must belong to the cream, generation to generation, may be a cynical social scientists 'comment, ' Inevitably, a larger number of Delhi medical graduates, relatively speaking, must be ambitiously wanting to continue their studies in post graduate medical courses which are prized for their career potential. It is significant that these courses are not easily available elsewhere and the standards and prestige of these degrees in the Delhi University are high. Taking a post graduate medical degree thus opens up further vistas for studies abroad or employment at home. When we remember these factors and the reduced chance for bright Delhi graduates to gain admission into the Delhi post graduate courses in the face of All India competition, we can mildly appreciate the mood and demand of the student community for enlargement of their quota. But all grievances are not constitutional. Also, by remedying one group 's misfortune other groups may be hurt. The Court can only view rights and wrongs, through the constitutional prism. The various universities show concern for their backward regions and alumni in the name of equal opportunity. But the Indian Medical Council, apprehensive of fall of standards lays stress on academic merit. This dilemma of the law between equality of opportunity and excellence of performance leads us to a demand for full facts, but, of course, we are left to speculate on many aspects of the problem because even the Delhi University and the Union of India have left us in the lurch. Litigation, on a socio legal issue of critical constitutional moment, should not end with general assertions, affidavits of formal denials and minimal materials but, as stated earlier, needs feeding the court with nutritive facts which build the flesh and blood of the administrative or legislative action under challenge and all other surrounding and comparative data which legitimate the 'reservation ' or other procedure under attack from the constitutional angle. 'Reservation ' jurisprudence is a tangled knot carefully to be developed and counsel cannot invite judges to make hunches as a cover up for party 's failure. And ingenious or imaginative orality in court can never be a substitute for well researched, down to earth factuality in the brief. Many a case is lost or won because counsel and court engage in the game of blind man 's buff since investigative undertakings and presentation of constitutionally vital data do not find a place in the brief and our forensic process inhibits travels beyond the 842 paper books in court ! Nevertheless, for the nonce, we have to make do with the record. Let us go back to the basics. The Indian Constitution is wedded to equal protection and non discrimination. articles 14, 15 and 16 are inviolable and article 29(2) strikes a similar note though it does not refer to regional restrictions or reservations. article 15 saves the State 's power to make special provisions for women and children or for advancement of socially and educationally backward classes. Reservations under article 15(4) exist and are applied. There is no dispute about that and the whole debate has left that pattern and policy of 'reservation ' out of controversy. We zero in only university wise quotas, reservations and preferences from the constitutional stand point. The primary imperative of articles 14 and 15 is equal opportunity for all across the nation to attain excellence and this has burning relevance to our times when the country is gradually being 'broken up into fragments by narrow domestic walls ' in politics, economics and education, undoing the founding faith of an undivided integrated India by surrender to lesser appeals and grosser passions. What is fundamental, as an enduring value of our polity, is guarantee to each of equal opportunity to unfold the full potential of his personalities. Anyone anywhere, humble or high, agrestic or urban, man or woman, and whatever his religion or irreligion, shall be afforded equal chance for admission to any secular educational course or school for cultural growth, training facility, speciality or employment. Each according to his ability, is of pervasive validity, and it is a latent, though radical, fundamental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising to the peak. Environmental inhibitions mostly 'freeze the genial current of the soul ' of many a humble human whose failure is 'inflicted ', not innate. Be it from the secular perspective of human equality or the spiritual insight of divinity in everyone, the inherent superiority cult with a herrenvolk tint, is contrary to our axiom of equality. That is why 'equal protection of the laws ' for full growth is guaranteed, apart from 'equality before the law '. Even so, in our imperfect society, some objective standards like common admission tests are prescribed to measure merit, without subjective manipulation or university wise invidiousness. In one sense, it is a false dilemma to think that there is rivalry between equality and excellence, although superficially they are competing values. In the long run, when every member of the society has equal opportunity, genetically and environmentally, to develop his potential, each will be able, in his own way, 843 to manifest his faculty fully. The philosophy and pragmatism of universal excellence through universal equal opportunity is part of our culture and constitutional creed. This norm of non discrimination, however, admits of just exceptions geared to equality and does not forbid those basic measures needed to abolish the gaping realities of current inequality afflicting socially and educationally backward classes ' and 'the Scheduled Castes and the Scheduled Tribes '. Such measures are rightly being taken by the State and are perfectly constitutional as the State of Kerala vs N. M. Thomas(1) has explained. Equality and steps towards equalisation are not idle incantation but actuality, not mere ideal but real, life. But can a university, acting within the constitutional parameters, create a new kind of discrimination viz., reservation for students of a particular university? The literal terms of article 14 do not tolerate it, the text of article 15 does not sanction it. Can we carve out a fresh ground of preference? Delhi University students, as such, are not an educationally backward class and, indeed, institution wise segregation or reservation has no place in the scheme of article 15, although social and educational destitution may be endemic in some parts of the country where a college or university may be started to remedy this glaring imbalance and reservation for those alumi for higher studies may be permissible. We will explain this further but, speaking generally, unless there is vital nexus with equal opportunity, broad validation of university based reservation cannot be built on the vague ground that all other universities are practising it a fact not fully proved before us either. Universality of illegality, even if the artists of discrimination are universities, cannot convert such praxis into constitutionality. Nor, indeed, can the painful circumstance that a batch of medical graduates demonstratively fasted in front of the Health Minister 's house, ipso facto, legalise reservation of seats in their favour. Shri Shanti Bhushan vividly described his role as Law Minister in meeting the student satyagrahis who were honestly hungry for post graduate seats and the crisis which stampeded government to intervene and make the University revise its reservation upward to save the lives of the 'fasters '. We have sympathy for students, especially for those who sacrifice their comforts to claim an opportunity to take post graduate medical degrees. We even feel that the student community often resorts to direct action of the satyagraha model when the pachydermic disposition of authorities drives them to such drastic heroics. But what if non Delhi students 844 start a rival starvation exercise ? That will lead to testing the rule of law on the immolative or masochist capabilities of affected groups and not on the Articles of the Constitutional or provisions of the legislation. Protest fasting, a versatile weapon in our cultural armoury, is meant to sensitize or conscientize the soul of the Administration when it is too paper logged or callous to look at human problems from the angle of human justice. Beyond that, this great Gandhian technique cannot be blunted by promiscuous use, so long as democratic mechanisms are alive and not impervious to legitimate grievances and can be sparked into action not merely by sensational, though sincere, tactics like fasting unto death. While recognising, even reverencing, the role of soul force in quickening the callous conscience of authorities to grave injury and need for urgent remedy, we cannot uphold the Delhi University 's 'reservation ' strategy merely because Government was faced with student 'fasts ' and ministers desired a compromise formula and the University bodies simply said 'Amen '. The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity Political panic does not ipso facto, make constitutional logic. Prima facie, equal marks must have equal chance for medical admissions, as urged by the practitioner. And neither university based favoured treatment nor satyagraha induced quota policy can survive the egalitarian attack. To repulse the charge, equality oriented grounds must be made out. Constitutional equality itself is dynamic, flexible, and moulded by the variables of life. For instance, if a region is educationally backward or woefully deficient in medical services, there occurs serious educational and health service disparity for that human religion which must be redressed by an equality and service minded Welfare State. The purpose of such a policy is to remove the existing inequality and to promote welfare based equality for the denizens of the backward regions. The specific strategy to ameliorate the unequal societal condition is left to the State, provided it is geared to producing equality in the quality of life of that handicapped area subject, of course, to basic recognition of individual quality and criteria of efficiency. If the State, for example, seeks to remove the absence of opportunity for medical education of adivasis or islanders who have no inclination or wherewithal to go to far off cities and join medical colleges, by starting a regional university and medical college in the heart of such backward region and reserves a high percentage of seats there to 'locals ' i.e. students from that university, it cannot be 845 castigated as discriminatory. What is directly intended to abolish existing disparity cannot be accused of discrimination. Again, if the State finds that only students from the backward regions, when given medical graduation, will care to serve in that area, drawn towards it by a sense of belonging, and those from out side will, on graduation, leave for the cities or their own regions, it may evolve a policy of preference or reservation for students of that University. That strategy ensures the probability of their serving the backward people for whose benefit the medical courses were opened. Such measures which make for equality of opportunity for medical education and medical service for backward human sectors may be constitutionalised even by articles 14 and 15. But it must be remembered that exceptions cannot over rule the rule itself by running riot or by making reservations as a matter of course, in every university and every course. For instance, you cannot wholly exclude meritorious candidates as that will promote sub standard candidates and bring about a fall in medical competence, injurious, in the long run, to the very region. It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation. So, within these limitations, without going into excesses, there is room for play of the State 's policy choices. Before moving to the next aspect we may touch upon a slightly different angle which opens up a new point of view. What is merit or excellence ? If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases. Marks on this basis will take us to the same preference as reservations for in university candidates. Here we are not preferring one with less marks, but adopting a holistic manner of marking linked up with backward settings, institution oriented and like considerations has some meaning. A caveat or two may be sounded even in this approach lest exception should consume the rule. The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are 846 absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage, which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalisation when the Constitution mandates for every one equality before and equal protection of the law may be fatal folly, self defeating educational technology and antinational if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit such as the dynamics of social justice which animates the three egalitarian articles of the Constitution. Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scale of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of Ph.D., M.D., or levels of higher proficiency, where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss the considerations we have expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. The Indian Medical Council has rightly emphasised that playing with merit for pampering local feeling will boomerang. Midgetry, where summitry is the desideratum, is a dangerous article We may here extract the Indian Medical Council 's recommendation, which may not be the last word in social wisdom but is worthy of consideration: Student for post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post graduate studies should be conducted by the Universities. Another casuistry needs to be exposed before we proceed. Backward regions and universities in consequence are miles away from forward cities with sophisticated institutions. The former, for a equalisation, need crutches and extra facilities to overcome injustices. The latter already enjoy all the advantages of the elite and deserve no fresh props. That will be double injury to claims of equality of the capable candidates coming from less propitiously circumstanced universities and societies. Law is no absolute logic but the handmaid of current social facts of life. 847 We hasten to keep aloof from reservations for backward classes and Scheduled Castes and Tribes because the Constitution has assigned a special place for that factor and they mirror problems of inherited injustices demanding social surgery which if applied thoughtlessly in other situations may be a remedy which accentuates the malady. At this stage it is appropriate to refer to one ruling of this Court which relates partly to university wise reservation in the context of backward areas. Support from precedents for the propositions implicit in the above discussion can be derived, but we need not cover many rulings and may confine ourselves to one or two which have closer bearing than the rest. In Chanchala 's case(1) university wise reservation was challenged as unconstitutional. There was reference to earlier decisions such as Rajendran vs Madras(2) and Periakaruppan vs Tamil Nadu(3) and their ratio was distinguished to reach the conclusion that under certain circumstances university wise classification and reservation was constitutionally permissible. In Rajendran 's case (supra) district wise quota for medical college admissions was struck down notwithstanding the argument that "if selection was made districtwise, those selected from a district were likely to settle down as practitioners in that district, so that the districts were likely to benefit from their training".(4) The Court did not consider this to be intrinsically irrelevant but negatived the contention. "On the ground that it was neither pleaded in the counter affidavit of the State, nor had the State placed any facts or figures justifying the plea that students selected district wise would settle down as medical practitioners in the respective district where they resided. " The emphasis in both the cases (Rajendran and Periakaruppan) was on the reasonable nexus with the object of the rules of selection, namely, to get the most meritorious among the candidates for imparting medical education. In Chanchala 's case the basis of classification was different: "in that it is neither district wise nor unit wise, but is university wise. "(5) The justification for university wise reservation was the educational need and paucity of medical service in the area where the university was set up. Certain regions poorly served with medical facilities and with few doctors needed to produce more medical men 848 who would settle down there. Likewise, in those backward regions the absence of medical colleges effectively inhibited the needs of medical education of the local student community. The question was whether these grounds would suffice for providing reservation institution wise. In this setting, the Court observed: "Since the universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs of medical training of those attached to those universities. In our view there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of district wise or unit wise selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence, Further, the rules confer a discretion on the selection committee to admit outsiders upto 20% of the total available seats in any one of these colleges, i.e. those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India. "(1) In the course of the Judgment, Shelat, J. speaking for the Court, was inclined to broaden the principle of equalisation implied in article 15(4).(2) "Once the power to lay down classifications or categories of persons from whom admission is to be given is granted, the only question which would remain for consideration would be whether such categorisation has an intelligible criteria and whether it has a reasonable relation with the object for which the Rules for admission are made. Rules for admission are inevitable so long as the demand of every candidate seeking admission cannot be complied with in view of the paucity of institutions imparting training in such subjects as medicine. The definition of a 'political sufferer ' being a detailed one and in certain terms, it would be easily possible to distinguish children of such political sufferers from the rest as possessing the criteria laid down by the definition. The object of the rules for admission can obviously 849 be to secure a fair and equitable distribution of seats amongst those seeking admission and who are eligible under the University Regulations. Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equally fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who, but for the preferential treatment given to them, would not stand a chance against those who are not so handicapped and are, therefore, in a superior position. The principle underlying article 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under article 15(4). " Another observation by Dua, J. in his separate opinion also has pregnant meaning (1): "The object of selection for admission to the Medical Colleges, considered in the background of the directive principles of State policy contained in our Constitution, appears to be to select the best material from amongst the candidates in order not only to provide them with adequate means of livelihood, but also to provide the much needed medical aid to the people and to improve public health generally." (emphasis added) The conclusion that we reach from this ruling which adverts to earlier procedents on the point is that university wise preferential treatment may still be consistent with the rule of equality of opportunity where it is calculated to correct an imbalance or handicap and permit equality in the larger sense. This extensive excursion is necessitated by the subtle tendency of advantage groups to exploit propositions applicable to disabled categories to good account. Now, let us look at the raw realities of the Delhi University medical graduates and their claim for larger reservation for M.D. and M.S. Facts, and only facts, must be the guide, of course, within the framework of Part III, and this Court has to play the role not only of the sentinel on the qui vive but also 850 of the 'hound of heaven ', not merely watch but chase, to set things right if any constitutional wrong has been committed. So we must enquire whether 70% reservation for Delhi graduates which is prima facie discriminatory can be extricated by any amelioratory constitutional logic or ethic implicit in articles 14 and 15. We have set out the parameters within which alone reservation is permissible. We must go to the roots of the creed of equality and here the case of State of Kerala vs N. M. Thomas(1) has critical relevance. That decision dealt with the Scheduled Castes and article 16 and certain facilities other than reservation. But the core reasoning has crucial significance in all cases of protective discrimination. The process of equalisation and benign discrimination are integral, and not antagonistic, to the principle of equality. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is sophistry to argue that progressive measures to eliminate group disabilities and promote collective equality are anathema on the score that every individual has entitlement on pure merit of marks. This narrow 'unsocial ' pedantry subverts the seminal essence of equal opportunity even for those who are humble and handicapped. Meritocracy cannot displace equality when the utterly backward masses labour under group disabilities. So we may weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity. So we hold, even apart from article 15(3) and (4), that equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. Indeed, article 14 implies all this, in its wider connotation, and has to inform the interpretation of article 15. Mathew J. in Thomas 's case (supra) quoted from the Moynihan Report and continued with some insightful comments which we may excerpt: (2) "Here a point of semantics must be grasped. The demand for equality of opportunity has been generally perceived by White Americans as a demand for liberty, a demand not to be excluded from the competition of life at the polling place, in the scholarship examinations, at the 851 personnel office, on the housing market. Liberty does, of course, demand that everyone be free to try his luck, or test his skill in such matters. But these opportunities do not necessarily produce equality. On the contrary, to the extent that winners imply losers, equality of opportunity almost insures inequality of results. The point of semantics is that equality of opportunity now has a different meaning for Negroes than it has for Whites. It is not (or at least no longer) a demand for liberty alone, but also for equality in terms of group results. In Barard Rustin 's terms, 'It is now concerned not merely with removing the barriers to full opportunity but with achieving the fact of equality. ' By equality Rustin means a distribution of achievements among Negroes roughly comparable to that among Whites.(1) Beginning most notably with the Supreme Court 's condemnation of school segregation in 1954, the United States has finally begun to correct the discrepancy between its ideals and its treatment of the black man. The first steps, are reflected in the decisions of the courts and the civil rights laws of Congress, merely removed the legal and quasi legal forms of racial discrimination. These actions while not producing true equality, or even equality of opportunity, logically dictated the next steps: positive use of government power to create the possibility of a real equality. In the words of Professor Lipset: "Perhaps the most important fact to recognise about the current situation of the American Negro is that (legal) equality is not enough to insure his movement into larger society. "(2) (emphasis added) We agree with this approach and feel quite clearly that the State 's duty is to produce real equality, rather egalitarian justice in actual life. If university wise classification for post graduate medical education is shown to be relevant and reasonable and the differential has a nexus to the larger goal of equalisation of educational opportunities the vice of discrimination may not invalidate the rule. 852 Even so, what is fundamental is equality, not classification. What is basic is equal opportunity, for each according to his ability, not artificial compartmentalisation and institutional apartheidisation, using the mask of handicaps. We cannot contemplate as consistent with article 14 a clanish exclusivism based upon a particular university, without more. Alive to these major premises let us examine the merits of the charge of 'admission ' discrimination in the present case, Justice Brennan, in a different social milieu, but with a spiritual secular meaning which may not be lost on us, stated:(1) "Lincon said this Nation was 'conceived in liberty and dedicated to the proposition that all men are created equal '. The Founders ' dream of a society where all men are free and equal has not been easy to realize. The degree of liberty and equality that exists today has been the product of unceasing struggle and sacrifice. Much remains to be done so much that the very institutions of our society have come under challenge. Hence, today, as in Lincoln 's time, a man may ask 'whether (this) nation or any nation so conceived and so dedicated can long endure '. It cannot endure if the Nation falls short on the guarantees of liberty, justice, and equality embodied in our founding documents. But it also cannot endure if our precious heritage of ordered liberty be allowed to be ripped apart amid the sound and fury of our time. It cannot endure if in individual cases the claims of social peace and order on the one side and of personal liberty on the other cannot be mutually resolved in the forum designated by the Constitution. If that resolution cannot be reached by judicial trial in a court of law, it will be reached elsewhere and by other means, and there will be grave danger that liberty, equality, and the order essential to both will be lost." Another national risk we run was sounded in words of caution in Khosa 's case by Chandrachud, J. (as he then was):(2) ". .let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operation residue of equality and equal opportunity?" 853 Thus the constitutional principles and limitations are clear and the norms are belighted by the precedents but their application to the specific situation is an exacting task. The burden, when protective discrimination promotional of equalisation is pleaded, is on the party who seeks to justify the ex facie deviation from equality. What has the Delhi University stated here? The learned Attorney General frankly admitted that student agitation, without more, could not validate 'reservation ' and that excessive reservation was an obvious inequality. Nor, indeed, is it a good plea that illegal reservation is being practised by other universities and the Delhi University is forced to act illegally in self defence. Lawlessness, under our system, is corrected by the law, not by counter lawlessness. So it is strange for the Delhi University to say our disorderly behaviour is orderly because other universities behave similarly. Once these misguided defences of direct action by students or reprisals against other universities are brushed aside, we come to grips with the real issues. Is there circumstantial justification for constitutionalising the rservation strategy, especially of 70% plus? The case for reservation argues itself once we establish an operational relationship between the benign basis of such classified quota or like preference and the object to be achieved viz. promotion of better opportunities to the deprived categories of students or better supply of medical service to neglected regions of our land. But the Delhi University, city or students, do not fit into the criteria. When a university or other institution may usefully be made the instrument for promotion of facilities for equal educational opportunity for a class or a region, the State may legitimately resort to institutionally classified reservation but Delhi fails to quality. Again, the integral yoga of equality and excellence at the service of society as already stated, has another rider. In the higher scales of specialised knowledge, be it art, science or technology, superior performance must be accorded recognition, for a variety of consideration. Who but humanity suffers if a rare genius, with a greater flair for or mastery of a key branch of natural or social science, is forced to wither away by a rule of total reservation for its own alumni and proscription of outsiders, by a house of higher learning ? Can 'unapproachability ', a cultural anathema now in India, attain respectability by being labelled as 'reservation ? No. Therefore, a blanket ban which is the indirect result of a wholesale reservation is constitutional heresy. There must be substantial social justice as raison d 'etre for a high percentage of alumni reservation 854 The argument urged in answer is that the doors for admission to post graduate medical courses are almost completely closed for Delhi graduates by all other universities. So, protective reservation becomes necessary as the only hope of Delhi students for post graduate studies. Those real life factors which show that Delhi graduates are denied de facto equality on a national scale by the exclusionism of other universities and that, therefore, they deserve sheltered equal opportunity in actuality by barriers of reservation of a high percentage of seats such being the University 's defence must be made out and not merely asserted. This contention deserves close examination, not summary rejection. The mechanics of merit measurement is simple. All applicants, whichever the University from where they have taken M.B.B.S. degree, must apply for a common entrance test. The yard stick of merit is the marks obtained. Thereafter 70% of the seats is allotted to Delhi graduates and the balance 30% is selected from out of all the remaining applicants, Delhi graduates included. So much so, Delhi graduates get much more than 70% of the total seats. Although the stage of application of reservation may bear upon the effective quantum of advantage, the principal question is as to whether a minimum of 70% for the Delhi graduate alone is not far too excessive, based on extraneous agitational factors and essentially contradicting articles 14 and 15? If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post graduate courses. After all, top technological expertise in any vital field like medicine is nation 's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country 's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation 's talent lying latent can produce. If the best potential in these fields is cold shouldered 855 for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless. Coming to brasstacks, deviation from equal marks will meet with approval only if the essential conditions set out above are fulfilled. The class which enjoys reservation must be educationally handicapped. The reservation must be geared to getting over the handicap. The rationale of reservation must be in the case of medical students, removal of regional or class inadequacy or like disadvantage. The quantum of reservation should not be excessive or societally injurious measured by the over all competency of the end product, viz. degree holders. A host of variables influence the quantification of the reservation. But one factor deserves great emphasis. The higher the level of the speciality the lesser the role of reservation. Such being the pragmatics and dynamics of social justice and equal rights, let us apply the tests to the case on hand. We are aware that measurement of merit is difficult and the methods now in vogue leave so much to be desired, that swearing by marks as measure of merit may even be stark superstition. But for want of surer techniques, we have to make do with entrance tests, and at any rate, save in clear cases of perversity or irrationality, this is ordinarily out of bounds for courts. M.B.B.S. is a basic medical degree and insistence on the highest talent may be relaxed by promotion of backward groups, institutionwise chosen, without injury to public welfare. It produces equal opportunity on a broader basis and gives hope to neglected geographical or human areas of getting a chance to rise. Moreover, the better chances of candidates from institutions in neglected regions setting down for practice in these very regions also warrants institutional preference because that policy helps the supply of medical services to these backward areas. After all, it is quite on the cards that some out of these candidates with lesser marks may prove their real mettle and blossom into great doctors. Again, merit is not measured by marks alone but by human sympathies. The heart is as much a factor as the head in assessing the social value of a member of the profession. Dr. Samuel Johnson put this thought with telling effect when he said : "Want of tenderness is want of parts, and is no less a proof of stupidity than of depravity". 856 We have no doubt that where the human region from which the alumni of an institution are largely drawn is backward, either from the angle of opportunities for technical education or availability of medical services for the people, the provision of a high ratio of reservation hardly militates against the equality mandate viewed in the perspective of social justice. We have two weighty differentiating factors here. Delhi is in no sense an educationally or economically backward human region, measured against the rest of our country. The students of Delhi, who are likely to seek admission to medical colleges, belong to classes higher in the scale than in most parts of India. As explained earlier the presence of huge central administrative establishments and higher echelons of the public services, members in numbers of the political aristocracy, thanks to Delhi being the seat of Parliament, countless executives clustering around big business and industrial houses and offices and many educational, research and other institutions, professional organisations, the Supreme Court, the High Court, and their natural human concomitants in the upper socio educational scale, make Delhi and the Delhi University the cynosure of the privileged species in a land of under privilegd penury. Of course, like in any megalopolis of a developing country, slums and other symptoms of deprivation show up and the desperately poor denizens below the visibility line unbiquitously abound. But they are not the potential candidates for medical admission or service and cannot be used as `alibi ' for reservation. In what sense, regard being had to over all Indian conditions, can it be said that Delhi or the Delhi University, is backward or serves, through the medical colleges of its University, the students who will settle down to alleviate suffering in that region, Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post graduate or post doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super skilled specialists, not humdrum second rates. So it is that relaxation on merit, by over ruling equality and quality altogether, is a social risk where the stage is post graduate or post doctoral. Of course, we should not exaggerate this factor. Post graduate studies are not all that great and demanding as to invite only geniuses. 857 We cannot be scared by glorifying merit nor be hypnotised by the cult of talent, seeing as we do, crowds of M.Ds, M.Ss and their foreign analogues. Nor, indeed, are the entrance tests any but the feeblest yardsticks to measure innate capabilities. Is it not the wildest hostage to fortune to swear by marks alone which are so freakish and determined by a chancy variety of variables ? We find different modes of examining faculties in different universities, commissions and countries and may, on closer scrutiny, pick holes in the scientific basis of our entrance tests themselves. We repeat all this only to stress the limitations on the current system of selection so that we may not be swept off our feet by the elitist feeling that something sacred or scientific is being jettisoned for the sake of accommodating nitwits of backward regions institutions or classes when marks are slightly slurred over. Even so, being realists, we go by existing methodology until better modes are devised. In the light of this discussion about the know how and know why of reservations, what are the conclusions that emerge vis a vis the Delhi graduates ? Neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. But there is one weighty circumstance which must be in our remembrance. Reservation for Delhi graduates is not that invidious because, as stated in the beginning, the students are from families drawn from all over India. Not `sons of the soil ' but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control. This reservation is, therefore, qualitatively different. There is another pathological condition affecting `medical admissions ' which is at the back of the desperate `satyagraha ' of the students and this factor tilts the scale a great deal. Counsel for the University, supported by fragmentary material pointing to a pan Indian tendency, argued that all the country round every university bangs, bars and bolts the doors of medical admission to outsiders and if Delhi alone were to keep its doors hospitably ajar where are the Delhi graduates to go for higher studies if squeezed out by All India competition ? If reservation is evil, the embargo everywhere must be lifted, lest evil should beget evil. So long as other universities are out of bounds for Delhi graduates, exposure to all India competition becomes intense and prejudices their chances. This indirect, real yet heavy handicap creates an under current of discrimination and cannot be wished away and needs to be antidoted by some percentage of reservation or other legitimate device. Another consideration which justifies some measure of reservation is the desire of students for institutional continuity in education. 858 Parents, pupils and teachers will usually prefer such continuity and it has its own value. We recognise that institution wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules until revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the signpost of `no admission for outsiders ' is removed from other universities and some fair percentage of seats in other universities is left for open competition the Delhi students cannot be made martyrs of the Constitution. Even so, `reservation ' must be administered in moderation, if it is to be constitutional. Some central technical institutions like the All India Institute of Medical Sciences, Delhi and Chandigarh and the Pondicherry Medical College have a much smaller fraction. Their circumstances may be different and we do not have the full facts, neither side having furnished more than fragments. Judicial surmise is too weak to be of decisional certainty. For reasons we have assigned 70% plus is too high at the post graduate level in the half proved circumstances. But we stop short of invalidating the rule because the facts are imperfect, the course has already started and the court must act only on sure ground, especially when matters of policy, socio educational investigation and expert evaluation of variables are involved. Judges should not rush in where specialists fear to tread. We spare the impugned regulation even though we are, prima facie, sceptical about the vires thereof. To doubt is not enough to demolish. When fuller facts are placed, the court will go into this question more confidently. While reluctantly repelling the challenge of the petitioner we think two directions must be made in this case. If 70% reservation is on the high side and the petitioner is hopefully near `admission ' going by marks and reservation, it is but just that he is given a chance to do his post graduate course. Indeed, his coming to Delhi itself was a compulsion beyond his control, as we have noted earlier. The petitioner, going by marks, deserves admission to the postgraduate degree course although he is now in the post graduate diploma course. So we direct him to be admitted to the degree course this year, if the rules of attendance etc., do not stand in the way and the Medical Council makes an exception by agreeing to addition of one seat as a special case for this year. More importantly, we direct the University forthwith not later than two months from to day to appoint a time bound committee to 859 investigate in depth the justification for and the quantum of reservation at the post graduate level from the angle of equality of opportunity for every Indian but taking into consideration other constitutionally relevant criteria we have indicated in this judgment. That committee will study facts and figures and the reservation realities of other universities and make recommendations on the question of university based reservations and allied aspects as well as the modus operandi for implementation. The Committee will be richer if it has a constitutional expert and a representative of the Indian Medical Council on it. Its report shall be considered by the University as soon as may be, so that, if possible, the admissions for next year may be governed by the revised decisions of the concerned organs informed by the report. We are disturbed by the tendency to wall of each university as an insulated island of education, mindless of the integrated unity and equal opportunity which are an inalienable part of our constitutional value system. There is good reason for reservation in many cases but the promiscuous, even profligate application of an exception as a rule of educational life by forward cities and universities will boomerang on the nation in the long run. The Union of India has a special responsibility to ensure that in higher education provincialism does not erode the integrity of India. Who lives if India dies, is a poignant interrogation with cultural projections in many dimensions which our administrators are not, we hope, innocent off : Mutations in reservations in other universities need not await litigation but can be undertaken before the court process is set in motion. The dialectic of constitutional protection in the dynamic context of equality in a developing country has been presented by us at some repetitive length so that the voyage of re thinking may not suffer from navigational errors. The Indian Medical Council is the statutory body at the national level whose functional obligations include setting standards for as well as regulation and coordination of medical education. What with a growing number of universities with divergent settings, standards and goals and a motley crowd of students with diverse academic and social backgrounds and ambitions, the prescription and invigilation of flexible yet principled norms regulating the entrance into medical courses and training of medical graduates at various levels of specialization are a demanding and dynamic task. The I.M.A. cannot be a silent spectator or a static instrument but must initiate, activist fashion, steps to make Indian medical education a meaning asset to the nation 's healing and hospital resources and a discipline with broad uniformity and assured standard. The Central Government, witness to a deteriorating situation, cannot but act to negate the confusing trend of fall in quality and conflict among universities. 860 We may wind up by articulating the core thought that vitalises our approach. Anyone who lives inside India can never be considered an `outsider ' in Delhi. The people in the States are caught in a happy network of mutuality, woven into a lovely garment of humanity, whose warp and woof is India. This is the underlying fundamental of the preambular resolve registered in our National Parchment. So we insist that blind and bigoted local patriotism in xenophobic exclusivism is destructive of our Freedom and only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderate such a purposeful course can protective discrimination gain entrance into the portals of college campuses. The Administration has a constitutional responsibility not to be a mere thermometer where mercury rises with populist pressure but to be a thermostat that transforms the mores of groups to stay in the conscience of the nation, viz. the Constitution. We dispose of the petition with these twin directions leaving the parties to suffer their costs. PATHAK, J. I have had the benefit of reading the judgment prepared by my learned brother V. R. Krishna Iyer and while I agree with him that the writ petition should be dismissed, I propose to state my own reasons. The validity of a reservation of 70% of the seats in the post graduate classes by the Delhi University in favour of its own medical graduates is assailed in this writ petition. The basis of the reservation is the consideration that the candidate for admission to the post graduate classes is a medical graduate of the same University. No question of backward classes, scheduled castes and scheduled tribes, is involved. Criteria pertinent to reservation concerning them are, it seems to me, not relevant at all. Nor strictly is the test requiring a territorial nexus the University does not insist that the candidate should hail from any particular region or State for the purpose of the 70% reservation. The relationship is entirely institutional those who have graduated from the medical colleges run by the Delhi University are favoured for admission to the post graduate classes. In my opinion, there is sufficient validity in that consideration. It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post graduate studies. There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures. But much more 861 than convenience is involved. There are all the advantages of a continuing frame of educational experience in the same educational institution. It must be remembered that it is not an entirely different course of studies which is contemplated; it is a specialised and deeper experience in what has gone before. The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions according. The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to the post graduate classes also. Over the under graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies. In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes. The preference is based on a reasonable classification and bears a just relationship to the object of the education provided in the postgraduate classes. The concept of equality codified in our constitutional system is not violated. It has been said sometimes that classification contradicts equality. To my mind, classification is a feature of the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone form a class between themselves, and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference of the kind considered here does not offend the constitutional guarantee of equality. But the question really is : Is the degree of reservation excessive ? Is 70% too much ? Too excessive a reservation could result in preference to graduate candidates of severely limited aptitude and competence over meritorious candidates from other institutions whose exclusion could result in aborting a part of our national talent. The determining factor, it appears to me, is the measure of reciprocity prevailing between the different educational institutions in India regarding the availability of admission to graduates of other institutions. It can hardly be supposed that if the medical graduates of the Delhi University are shut out from adequate consideration for admission to the post graduate courses of other institutions merely because they did not graduate from those institutions they should not think it unjust that the hospitality of their own University to outside medical graduates leaves insufficient provision for them. Not to be able to take post graduate studies at all implies the termination of their medical studies. This is a problem which can be tackled only on a national level, with all Universities 862 and other medical institutions coming together around a common table with the object of fashioning out a mutual reasonable quota reservation. A wise and far sighted exercise, eschewing narrow parochial considerations, is called for. It is only by a joining of hands across the entire nation that a suitable and enduring solution can be evolved and the turbulence which disturbs the student body set at rest. My learned brother has referred to the considerable attraction which an educational institution in New Delhi exerts over students from other parts of the country. I confess I do not share the view entirely. So much, I think, depends on the choice of a particular subject or course of studies by the candidate. And medical course are not all necessarily to be found only in New Delhi. They are located in other parts of India and some of those well known centres of medical education have at least an equal reputation in certain fields of specialised study. I am reluctant to accept the proposition that because New Delhi is the political, legislative and judicial capital of India, an education of quality is not to be found in other cities. Merely because New Delhi is the new Capital of Delhi does not justify a disproportionate treatment of the claim to equality on a national level made by its medical graduates. The question remains : Is a reservation of 70% excessive ? We have travelled through the record, and I agree with my learned brother that the material is so scanty, fragmentary and unsatisfactory that we are prevented from expressing any definite decision on the point. Although we gave sufficient opportunity to the parties, the requisite material has not been forthcoming. Whether or not a reservation of 70% was called for has not been established conclusively. Indeed, there is hardly anything to show that the authorities applied their mind to a cool dispassionate judgment of the problem facing them. Popular agitation serves at best to arouse and provoke complacent or slumbering authority; the judgment and decision of the authority must be evolved from strictly concrete and unemotional material relevant to the issue before it. Unfortunately, there is little evidence of that in this case. For that reason, I join my learned brother in the directions proposed by him. The petitioners have raised other contentions also, principally resting on the allegation that the University of Delhi is a centrally administered institution, but I see no force in those submissions. Accordingly, subject to the two directions proposed by my learned brother the writ petition is dismissed and the parties shall bear their own costs. N.V.K. Petition dismissed.

The University of Delhi has many post graduate and diploma courses in the faculty of medicine but all of them put together provide 250 seats. The three medical colleges in Delhi turn out annually 400 medical graduates who get 'house ' jobs in the local hospitals and qualify themselves for post graduate courses. As the graduates from the Delhi University could not be accommodated fully or even in part for the post graduate courses in medicine and as these graduates were not considered for admission into other universities on account of various regional hurdles such as prescription of domicile, graduation in that very university, registration with the State Medical Council, service in the State Medical service etc., the Delhi University had earmarked some seats at the post graduate level in medicine for the medical graduates of Delhi University. Until April 1978, the rule for selection of candidates for admission into the post graduate classes in medicine provided that selection for 52% of the total number of seats was to be made on the basis of combined merit of Delhi University and other university medical graduates, and 48 per cent from the Delhi University graduates only. The rule was amended, reserving 70% of the seats at the post graduate level to Delhi graduates and 30% being open to all, including graduates of Delhi. The petitioner who was a medical graduate from the Madras University applied for the post graduate degree in Dermatology in the University of Delhi. He passed the common entrance test for admission, but his admission was turned down because of the rule of the University reserving 70% of the seats at the post graduate level to Delhi University graduates. The petitioner in his writ petition under Article 32 challenged the rule as violative of Articles 14 and 16 of the Constitution and sought the court 's writ to direct the University to admit him to the M.D. Course in Dermatology. It was contended that the University was sustained by Central Government finances, collected from the whole country and the benefits must likewise belong to all qualified students from everywhere. The University justified the reservation on the ground of exclusivism practised by every other University by forbidding Delhi University graduates from getting admission in their colleges and also on account of the reasonableness of institutional continuity in educational pursuits for students who enter a university for higher studies. 832 Dismissing the writ petition. ^ HELD: (per Krishna Iyer & Chinnappa Reddy, JJ.) 1. Reservation of 70% is too high at the post graduate level. But the rule is not invalidated because the facts are imperfect, the course has already started and the court must act only on sure ground, especially when matters of policy, socio educational, investigation and expert evaluation of variables are involved. When fuller facts are placed, the court will go into this question more confidently. [858 D E] 2. If 70% reservation is on the high side and the petitioner is hopefully near 'admission ' going by marks it is but just that he is given a chance to do his post graduate course. His coming to Delhi itself was a compulsion beyond his control. [858 F] 3. Petitioner directed to be admitted to the degree course this year, if the rules of attendance etc., do not stand in the way and the Medical Council makes an exception by agreeing to addition of one seat as a special case for this year. [858 G] 4. (i) The University forthwith not later than two months from today to appoint a time bound committee to investigate in depth the justification for and the quantum of reservation at the post graduate level from the angle of equality of opportunity for every Indian. That committee will study facts and figures and the reservation realities of other universities and make recommendations on the question of university based reservations and allied aspects as well as modus operandi for implementation. The Committee will benefit if it has a constitutional expert and a representative of the Indian Medical Council on it. Its report shall be considered by the University as soon as may be, so that, if possible, the admissions for the next year may be governed by the revised decisions of the concerned organs informed by the report. [858 H 859 C] (ii) The Union of India has a special responsibility to ensure that in higher education provincialism does not erode the integrity of India. Anyone who lives in India can never be considered an 'outsider ' in Delhi. Blind and bigoted local patriotism in xenophobic exclusivism is destructive of freedom and only if compelling considerations of gross injustice, desperate backwardness and glaring inequality desiderate such a course can protective discrimination gain entrance into the portals of college campuses. [859 D, 860 A, B] 5. The philosophy and pragmatism of universal excellence through universal equal opportunity is part of our culture and constitutional creed. [843 A] 6. The Indian Constitution is wedded to equal protection and non discrimination. articles 14, 15 and 16 are inviolable and article 29(2) strikes a similar note though it does not refer to regional restrictions or reservations. article 15 saves the State 's power to make special provisions for women and children or for advancement of socially and educationally backward classes. [842 B] 7. University wise preferential treatment may still be consistent with the rule of equality of opportunity where it is calculated to correct and imbalance or handicap and permit equality in the larger sense. What is fundamental is equality, not classification. What is basic is equal opportunity, for each according to his ability, not artificial compartmentalization and institutional apartheidisation, using the mask of handicaps. A clanish exclusivism based upon a particular university cannot be contemplated as consistent with Article 14. [852 A] 9. A blanket ban which is the indirect result of a wholesale reservation is constitutional heresy. There must be substantial social justice as raison d 'etre for a high percentage of alumni reservation. [853 H] 10. If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like postgraduate courses. The role of high grade skill or special talent may be less at the lesser levels of education jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country 's development in the vital areas of professional expertise. [854 E G] 11. The class which enjoys reservation must be educationally handicapped. The reservation must be geared to getting over the handicap. The rationale of reservation must be in the case of medical students, removal of regional or class inadequacy or like disadvantage. The quantum of reservation should not be excessive or societally injurious, measured by the over all competency of the end product, viz. degree holders. A host of variables influence the quantification of the reservation. [855 B C] 12. The higher the level of the speciality the lesser the role of reservation. M.B.B.S. is a basic medical degree and insistance on the highest talent may be relaxed by promotion of backward groups, institution wise chosen, without injury to public welfare. It produces equal opportunity on a broader basis and gives hope to neglected geographical or human areas of getting a chance to rise. Moreover, the better chances of candidates from institutions in neglected regions getting down for practice in these very regions also warrants institutional preference because that policy helps the supply of medical services to these backward areas. [855 D, F] 13. It is difficult to denounce or renounce the merit criterion where the selection is for post graduate or post doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. [856 F G] 14. Neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. Reservation for Delhi graduates is not that invidious, because the students are from families drawn from all over India. Not sons of the soil ' but sons and daughters of persons who are pulled into the capital city for reasons beyond their control. This reservation, is, therefore, qualitatively different. [857 D E] 15. Institution wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules, until revised 834 by competent authority or struck down judicially, will rule the roost. Until the signpost of 'no admission for outsiders ' is removed from other universities and some fair percentage of seats in other universities is left for open competition, the Delhi students cannot be made martyrs of the Constitution. Reservation must be administered in moderation, if it is to be constitutional. [858 B C] 16. Litigation, on a socio legal issue of critical constitutional moment, should not end with general assertions, affidavits of formal denials and minimal materials, but needs feeding the court with nutritive facts which build the flesh and blood of the administrative or legislative action under challenge and all other surrounding and comparative data which legitimate the 'reservation ' or other procedure under attack from the constitutional angle. Ingenious or imaginative orality in court can never be a substitute for well researched down to earth factuality in the brief. In the adversary system, advocacy in the superior courts which by their decisions, declare the law for all must broaden beyond the particular lis into a conspectus of sociological facts, economic factors and educational conditions so that other persons aggrieved who will potentially be bound by the decision, do not suffer by not being eo nomine parties. [841 F G, H 837 E] (Per Pathak J.) 1. Classification is a feature of the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated form a class between themselves, and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference as in the instant case does not offend the constitutional guarantee of equality. [861 D E] 2. The basis of the reservation is that the candidate for admission to the post graduate classes is a medical graduate of the same university. The relation ship is institutional. There is sufficient validity in that criterion as a basis of classification under Article 14. [860 F, G] It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post graduate studies. There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures. But much more than convenience is involved. There are all the advantages of a continuing frame of educational experience in the same educational institution. In the post graduate class, it is not an entirely different course of studies which is contemplated; it is a specialised and deeper experience in what has gone before. The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions accordingly. The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to the post graduate classes also. Over the under graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies. There is good reason in an educational institution extending a certain degree of preference to its graduates for admission to its post graduate classes. [860 C] 835 3. Medical courses are not all necessarily to be found only in New Delhi. They are located in other parts of India and some are well known centres of medical education. The proposition that because New Delhi is the political, legislative and judicial capital of India, an education of quality is not to be found in other cities is not acceptable. Merely because New Delhi is the new Capital of Delhi does not justify a disproportionate treatment of the claim to equality on a national level made by its medical graduates. [862 C D] 4. But too excessive a reservation could result in preference to graduate candidates of severely limited aptitude and competence over meritorious candidates from other institutions whose exclusion could result in aborting a part of the national talent. [861 F] 5. Whether or not a reservation of 70% was called for has not been established conclusively. There is hardly anything to show that the authorities applied their mind to a cool dispassionate judgment of the problem facing them. The judgment and decision of the authority must be evolved from strictly concrete and unemotional material relevant to the issue before it. [862 F]

N: Criminal Appeal No. 611 of 1981. Appeal by Special leave from the Judgment and Order dated the 6th February, 1981 of the Allahabad High Court in Crl. Appeal No. 11478 of 1980. Dalveer Bhandari, H.M. Singh and Ranbir Singh Yadav for the Appellant. R.L. Kohli and Girish Chandra for the Respondent. Ram Jethmalani, Ms. Rani Jethmalani and S.B. Jethmalani for the Intervener. The judgment of the Court was delivered by FAZAL ALI, J. Our hard won freedom from British yoke ushered in a new era of progress and prosperity resulting in setting up of a large number of industries of all sorts and kinds in various spheres, some of them being Government controlled and some of them in the private sector. Labour and industrial laws of the country passed after independence created a sense of new awakening in the labour force which became more and more conscious of the rights and privileges conferred on them by the laws. Although disputes between the labour and management is now a common feature of the industrial life of the country yet seldom in the history of industrial disputes has it ever happened that a dispute assumed such large proportions as to take the toll of a human life resulting in a cold blooded murder in broad day light and that too in a court premises. 4 Such an extraordinary event is the subject matter of this appeal by special leave against the judgment of the Allahabad High Court where a Secretary of the labour Union seems to have run amuck and fired several shorts by a country made pistol shots on an officer of the management and killed him at the spot The facts of the case have been detailed in the judgment of the learned Sessions Judge and the High Court and need not be repeated. The matter, therefore, lies within a narrow compass and we purpose only to examine the reasons and the inferences drawn by the High Court for acquitting the respondent, Madhu. M/s. Hindustan Construction Company (hereinafter referred to as the 'company '), had undertaken the construction of Jamuna Hydel Project in Khadar, District Dehradun. To begin with, it appears that there was some dispute about the dearness allowance claim of the labour from the management which was referred to the Industrial Tribunal. The respondent, who was the Secretary of the Union, was looking after the case on behalf of the workers, while PWs 5 and 7 were the officers appearing on behalf of the management before the Tribunal. The deceased, S.J. Sirgaonkar, was Deputy Personnel Manager of the Bombay Branch of M/s. Hindustan Construction Company. He was shot dead by the respondent after he (deceased), alongwith the other officers of the management, had come out of the Tribunal 's office at Meerut after filing their written statements. Thereafter one of the eye witnesses, S.K. Gui (PW 7) asked someone to give a telephone call to the police station, which was nearby, on receipt of which the police arrived at the spot, seized the pistol and took the accused and some of the witnesses to the police station where a form FIR was registered. The Panchanama was prepared and other formalities were, however, done at the spot. The learned Sessions Judge, after a careful consideration of the evidence of the three main eye witnesses (PWs 5, 6 and 7) as also the evidence of Durga Das (DW 1), came to a clear conclusion that the prosecution case against the respondent was fully proved and accordingly be convicted the respondent under 5 section 302, I.P.C. and sentenced him to imprisonment for life. He also convicted the respondent under section 25(1)(a) of the Indian Arms Act and sentenced him to one year 's R.I. The respondent went up in appeal to the High Court against the decision of the Sessions Judge which was reversed by the High Court and the respondent was acquitted of the charges framed against him. Normally, this Court does not interfere against the judgment of a High Court purely on appreciation of evidence. But, in this case, there appears to be very special circumstances which have been either overlooked or not considered by the High Court. Besides this, the High Court does not appear to have examined the intrinsic merits of the evidence of the witnesses but has proceeded to acquit the respondent on general grounds which, we shall show hereafter, are wholly untenable. It appears that July 5, 1977 was the date fixed in the Industrial Tribunal, Meerut for the parties to file their written statements and in this connection the deceased alongwith the other eye witnesses (PWs 5, and 7) attended the Tribunal and PWs 5 and 7 filed their written statements. P.W. 6 was, the standing counsel of the Company and had been representing the same in all labour disputes concerning the Company. The respondent was holding the post of hydel lineman of the Project and was the Secretary of the labour Union. DW 1, Durga Das, who was also at the spot was the Vice President of the said Union. It appears that after filing the written statements at about 11.30 a.m. the witnesses and the respondent came out of the court premises and were talking between themselves. As soon as the respondent and Sirgaonkar (the deceased) reached the main gate of the Tribunal building, the respondent is alleged to have taken out a country made pistol and fired five shots one after the other in quick succession, with the result that Sirgaonkar fell down and died at the spot. Thereafter, the respondent threw away the pistol but he was surrounded by the witnesses and later handed over to the police on their arrival. It is also alleged by the prosecution that while the firing was going on a telephonic message was sent to the police station Civil Lines, Meerut about the firing and it was received by Masroor Ali, PW 9, who made an entry to that effect in the general diary at 11.39 a.m. The telephonic information merely conveyed the fact that gunshots 6 were being fired on receipt of the information, PW 10. Ram Datt Gautam, the Sub Inspector of Police, proceeded to the place of occurrence and found the body of Sirgonkar Lying outside the main gate of the Tribunal building and the respondent being apprehended by the witnesses. The police officer took the accused into custody and proceeded to the police station alongwith PW 7, S.K. Gui, where a regular FIR was registered. The usual proceedings about the postmortem and inquest the followed and after a thorough investigation the police submitted a charge sheet against the respondent which resulted in his conviction by the Sessions Judge. This, in short, is the prosecution case. The main grounds on which the High Court has reversed the judgment of the Sessions Judge may be summarised as follows: Durga Das, DW 1 who was admittedly at the scene of the occurrence has stated that as the shooting started, PW 7 had given a telephonic message to the police station. The High Court by an implied process of reasoning has observed that if PW 7 had given the telephonic message he would have mentioned the name of the assailant because he was a full fledged eye witness but since his name had not been mentioned it is the strongest possible circumstance to discredit the prosecution case. We are, however, unable to agree with this somewhat involved reasoning of the High Court. In fact, DW, 1, merely says that Gui telephoned to the police station about the firing and said something in English, The High Court seems to have presumed that from this the irresistible inference to be drawn is that Gui did not mention the name of the assailant of the deceased and on this ground alone the prosecution must fail. This argument is based on a serious error. In the first place, the telephonic message was an extremely cryptic one and could not be regarded as a FIR in any sense of the term. Secondly, assuming that Gui had given the telephonic message in utter chaos and confusion when shots after shots were being fired at the deceased, there was no occasion for Gui to have narrated the entire story of the occurrence. In fact, in his evidence Gui has denied that he personally telephoned the police but he stated that he asked somebody to telephone the police which appears to be both logical and natural. Moreover such a cryptic information on telephone has been held by this 7 Court to be of no value at all. In Tapindar Singh vs State of Punjab this Court in identical circumstances observed thus: "The telephone message was received by Hari Singh, A.S.I., Police Station, City Kotwali at 5.35 p.m. On September 8, 1969. The person conveying the information did not disclose his identity, nor did he give any other particulars and all that is said to have been conveyed was that firing had taken place at the taxi stand, Ludhiana. This was, of course, recorded in the daily diary of the police station by the police officer responding to the telephone call. But prime facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report The mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report. " In view of this decision, therefore, the fundamental reasoning of the High Court falls to the ground. Moreover, Durga Das himself does not appear to be an independent witness but he was highly interested because being the Vice President of the labour Union he was looking after the case in tho Industrial Tribunal on behalf of the workers. There is clear evidence of prosecution witnesses that even the brief case of the respondent was handled by DW 1 at the time of the occurrence. Although DW 1 denied this fact, it is amply proved by the evidence of PW 5. The only comment made against this witness was that he did not state this fact before the investigating officer. But, as this was a matter of detail it may not have been necessary for him to have stated all possible details in his statement to the police. This witness is corroborated by PW 6, an independent witness, who says that the brief case of the respondent was being carried by Durga Das. It, therefore, appears that DW 1 being the Vice President of the Union and a pairvikar of the workers was highly interested and in the face of the evidence of independent witness like PW 6, there is no reason to disbelieve the evidence of PW 5 that the brief case of the respondent was being handled by DW 1. We might state here that the High Court has applied two 8 different standards to assess the evidence of the prosecution and that of the defence. While the High Court accepts the uncorroborated evidence of DW 1, who is as much interested in the dispute as the deceased, if not more, being Vice President of the Union and also in possession of the brief case of the respondent, yet it disbelieves the evidence of PWs 5 and 7 mainly on the ground that they were highly interested. The relevant finding of the High Court on this point may be extracted thus: "In the first place, it shows that Subrat Kumar Gui and M.R. Bhaumik were mainly responsible for the prosecution of the case, although the deceased had been in general supervision of all labour disputes of the company at all the places. In the second place, it also points out that these two witnesses were not happy with the appellant who had been representing the cause of the labourers before the Industrial Tribunal and that they were sore about his conduct. In these circumstances these two witnesses could not be said to be independent " Here, the High Court completely lost sight of two important facts (1) that PWs 5 and 7 were high officers of the Company and were not likely to depose falsely on a matter like this, and (2) that PW 6, who was the standing counsel of the Company and other labour cases for more than 3 decades, fully corroborates the evidence of PWs 5 and 7. We have examined the evidence of PWs S and 7 with very great care and caution but we are unable to find any discrepancy or defect in their evidence so as to lead any court to reject the same. On the other hand, on a consideration of their evidence. we are satisfied that are throughout consistent and congruous and that their evidence bears a ring of truth; We are indeed surprised how the High Court could disbelieve the evidence of the eye witnesses in the case of a cold blooded murder committed in broad day light where the respondent was caught red handed at the spot. The High Court also over looked the crying conduct of the respondent who went on firing one shot after the other so as to make sure that Sirgaonkar does not survive at any cost. Another ground on which the High Court has reversed the 9 judgment of the Sessions Judge is that it is difficult to believe that after the respondent threw the pistol he continued to remain at the spot and did not make any attempt to escape. With due respect, this finding of the High Court is also most unrealistic. There is clear evidence of PWs. 5, 6 and 7 that after the respondent threw down the pistol he was surrounded by the three witnesses so that he could not escape. The High Court has failed to consider this important aspect of the matter. Moreover, if a person commits a cold blooded murder in the premises of a court which is bound to be full of other litigants also, he cannot think of escaping and is bound to be caught by someone or the other. The High Court was further of the view that it is extremely doubtful that the witnesses could see the incident from inside the court room as there was no door or window through which the incident could be seen. To buttress this observation, the High Court seems to have relied on the evidence of DW 1 that the four persons, including DW 1, entered the court room as soon as the first shot was fired. This statement is obviously wrong because all the three witnesses stated that the shots were fired while they were outside the court room and they actually saw the respondent firing the shots. It was only after a few shots were fired that they entered the court room and even so they were able to see the whole occurrence from the glass panes of the court room. There is absolutely no evidence on record to show that there were no glass panes in tho window and that the place of occurrence could not be visible from the court room. In these circumstances the conclusion of the High Court is purely speculative and against the weight of evidence on the record. The High Court seems to have placed some reliance on the evidence of D.W.1 but as he was highly interested, his evidence unless corroborated by independent evidence should not have been acted upon in the peculiar facts and circumstances of this case. Lastly, the High Court seems to have completely overlooked the fact that there was no reason for three eye witnesses, one of whom was a standing counsel far about 30 years, to have falsely implicated the respondent merely because he was Secretary of the Union. The consistent course of conduct of the respondent speaks volumes against his innocence. He was caught red handed 10 at the spot and was surrounded by the witnesses so that he could not escape, and the police arrived within fifteen minutes of the occurrence and took him to the police station. Some comment was made by the High Court about the delay in the inquest report but that does not appear to be of any consequence if the evidence of the three eye witnesses is to be believed. We have given our anxious consideration to the evidence of the three witnesses (PWs 5, 6 and 7) and we find ourselves in complete agreement with the Sessions Judge that these witnesses were both reliable and trustworthy. In fact, the High Court committed a grave error of law in not going into the intrinsic merits of the evidence of each of the eye witnesses and in discarding the same on general ground which also have no substance. For the reasons given above, we are satisfied that this is not a case in which it could be said by any stretch of imagination that another reasonable view may be possible on the evidence and circumstances of the case, viz. that the accused was innocent. The result is that the appeal is allowed, the judgment of the High Court is set aside and the appellant is convicted under s.302 of the Indian Panel Code to imprisonment for life as also under s.25(1)(a) of the Indian Arms Act to one year 's R.I. because he was undoubtedly found using a country made pistol which was recovered from the place of occurrence. H.S.K. Appeal allowed.

section 33(2) of the Representation of the People Act requires that when a nomination paper is filed in respect of a reserved seat in any constituency there must be a clear specification by the candidate of the particular caste or tribe to which he belonged and the area in relation to which that caste or tribe was a scheduled caste or scheduled tribe of the State. The appellant, in order to contest State assembly election filed his nomination paper without making the declaration in the nomination paper itself but filed as annexure thereto a certificate issued by the Sub Divisional Magistrate certifying that the appellant belonged to a scheduled caste namely 'Lohar '. The nominating paper was accepted by the Returning Officer and the appellant successfully contested the election. The respondent, who lost in the election, challenged the election of the appellant on the ground inter alia that in the absence of the requisite declaration prescribed by section 33(2), the nomination paper of the appellant was invalid and was wrongly accepted. The High Court took the view that since section 33 of the Act required that the nomination paper must be in the prescribed form the filing of any enclosure or certificate along with form was not contemplated. Hence this appeal. Allowing the appeal, ^ HELD: When the nomination paper has been made in the prescribed form, there is no legal prohibition against the other requisite particulars being furnished in a separate paper appended to the form instead of 64 writing them out in the form itself. The annexure appended the form should be treated as part of the nomination paper. [67 B C] While dealing with nomination papers pertaining to candidates belonging to scheduled castes and scheduled tribes, who, for well known historical reasons, are unfortunately, extremely backward socially, economically and educationally in comparison with other sections of our people, the Court has to place a liberal and benevolent interpretation on the provisions contained in section 33(2) of the Act rather than adopt a narrow, rigid, technical and purely literal construction. [67 E F] section Sivaswami vs V. Malalkannan and other, [1984] 1 SCC 296, referred to. In the instant case the requirement of section 33(2) is fully satisfied. The certificate which was produced by the appellant as an annexure to the nomination paper has to be treated as forming part of the nomination paper and the declaration contained therein that the appellant belongs to the 'Lohar ' caste which is admittedly a scheduled caste in the entirety of the area concerned, must be understood and treated as a declaration by the appellant in the nomination form within the meaning of sub section (2) of section 33. Therefore the High Court was in error in holding that the nomination paper filed by the appellant was not valid and its acceptance by the Returning officer was improper. [68D E; G]

minal Appeal No. 834 of 1965. Appeal by special leave from the judgment and order dated October 19, 24, 1964 of the Bombay High Court in Criminal Appeal No. 1330 of 1964. A. section R. Chari, R. Nagaratnam, Vineet Kumar and Shyamala Pappu, for the appellant. Debabrata Mukherjee, H. R. Khanna and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Sikri, J. This is an appeal by special leave against the judgment and order of the High Court of Judicature at Bombay dismissing the appeal of the appellant against the conviction recorded by the Special Judge for Greater Bombay. The appellant was convicted by the Special Judge under section 5(2), read with section 5 1 (1 ) (a) X (d) and section 5 (3 ), of the Prevention of Corruption Act, 1947 (11 of 1947) hereinafter referred to as the Act and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,25,000/ , in default of payment of fine to suffer further rigorous imprisonment for one year. The Special Judge further directed that the amount of fine be recovered from the properties seized. The following charge was framed against the appellant: " That you, while functioning as (a) Income tax Officer, from about 1st April 1947 to November 1954 at Jalgaon Dhulia, Godhra and Mahansa (b) as Inspector of Income tax from November 1954 to January 1958 at Surat and Broach, (c) as Incometax Officer from January 1958 to the end of November 1961 at Bhavnagar, Dhulia, Amraoti and Ratnagiri, habitually accepted or obtained and habitually agreed to accept or attempted to obtain gratification other than legal remuneration and obtained for yourself pecuniary advantage by corrupt and illegal means or by otherwise abusing your position as a public servant, with the result that, during the said period you came in possession of assets of the value of about Rs. 2,01,080/ which were disproportionate to your known sources of income for which you could not satisfactorily account and you thereby committed the offence of criminal misconduct punishable under subs. (2) read with section (1) (a), (d) & (3) of section 5 of Act IT of 1947, the Prevention of Corruption Act, 1947, and within the cognizance of this Court. " 238 The case of the prosecution before the Special Judge was that the appellant was habitually corrupt, and wherever he was posted he used to develop personal contacts with the assessees, whose cases were pending before him and in his talk with them he tried to impress upon them that they were likely to be heavily taxed; he used to create a favourable psychological background and taking advantage of the same tried to screw out money from them; if the assessee did not accept his proposal or proved to be smarter, he used to harass him by various methods. The prosecution sought to establish the charge against him under section 5(1)(a) of the Act by leading evidence of five instances: (i) He obtained from the witness Gopaldas an amount of Rs. 3,000/ as a loan and subsequently converted it as his personal gratification for finalising income tax cases of his firm. (ii) He demanded an illegal gratification ( Rs. 10,000/ from the witness Gopaldas to show him were pending before him. (iii) He attempted to obtain bribe from P.W. 7 Motilal Bansgopal, whose income tax proceedings were pending before him. (iv) He atempted to obtain bribe from the assessee P.W. 9, Somchand Khimji, whose income tax proceedings were pending before him. (v) He also made a demand of bribe of Rs. 400/ to Rs. 500/ from P.W. 93 Gulabdas Kisondas Bhatia of Dharanyaon. Before the Special Judge the prosecution also relied on the presumption arising under section 5(3) of the Act as the accused was found to be in possession of assets worth about Rs. 2,01,080 which were disproportionate to his known sources of income. The learned Special Judge, in a very detailed and lengthy judgment, held that it was not proved that the appellant had obtained Rs. 3000/ from Gopaldas representing that he wanted the amount as a hand loan for taking delivery of the car. He further held that it was not proved that the appellant demanded bribe of Rs. 10,000/ from him as a motive for doing him favour in the disposal of his wealth tax cases. Regarding P.W. 7. Motilat Bansgopal. the Special Judge held that the accused had entertained a corrupt motive in asking the assessee P.W. 7to see him at his residence, and this circumstance could be considered against him in considering the charge for the offence of 239 habitually being corrupt. Regarding Somchand, P.W. 9, the Special Judge held that the appellant had made an implied demand of bribe and had a guilty conscience. Regarding Gulabdas, he held that the allegation regarding demand of bribe from P.W. 93, Gulabdas, had not been proved. He summarised. the findings thus "Thus out of specific instances the prosecution has established only two and it has been proved that the accused had made an implied demand of bribe from P.W. 9, Somchand and he had also asked P.W. 7, Motilal to come to his residence in connection with the delay in filing the return. The second instance though does not establish any demand of bribe as such, it does prove the proclivity of the mind of the accused and a corrupt tendency and would support the prosecution version." He further held that "the two instances proved will not themselves be sufficient to prove habit of bribe taking and the question is whether considering all the matters before the court it can be held that the accused is guilty of criminal misconduct and if yes, of what category." He further held that the appellant could be convicted on the strength of presumption arising under section 5 (3). The High Court repelled the contention of the appellant that no presumption arose under section 5 (3) of the Act because no specific instances had been held to be proved and, at any rate, they did not amount to an offence. The High Court distinguished the cases of R. section Pandit vs State of Bihar,(1) and Surajpal Singh vs The State of Uttar Pradesh(2). The High Court further observed that the trial Judge had accepted the evidence regarding two instances while it was prepared to accept the instance involving Gopaldas also. The High Court generally agreed with the finding regarding disproportionate assets and disbelieved the explanation offered by the appellant. Before we deal with the merits of the case, we shall taker up two preliminary points raised by the learned counsel for the appellant, Mr. Chari. He urged that as sanction had not been given for prosecuting the appellant the whole trial was bad. He said that the search of the appellant 's house took place on November 4, 1961, and on June 27, 1962, he was dismissed ' from service by the Commissioner of Income tax. On July 30, 1962, charge sheet was filed in the court of Special Judge. On (1) [1963] Suppl. 2 S.C.R. 652. (2) ; 240 "September 21, 1962, the appellant submitted an appeal to the President of India and the President was pleased to, convert the order of dismissal into one of the removal. The learned counsel contends that I pending the appeal the appellant should have been deemed to be in service and, therefore deemed to be in service on July 30, 1962. A similar point was raised before the Special Judge and he repelled the contention in the following terms . "For requiring a sanction to be taken before taking cognizance of an offence against a person, he must be in actual employment of the State. A mere right of appeal will not invest him with that status. Moreover, a person may have right of appeal, but he may not exercise the same and may not file the appeal. It is purely within his discretion and the act of taking cognizance which is the course of law would not be made dependent upon such arbitrary and discretionary alternatives held by a person. " The Special Judge also referred to rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and the explanation thereto in which it is stated : "In this rule the expression 'member of a Central Civil Service ' includes a person who has ceased to be a member of the service. " This explanation was also relied on before us. Regarding the explanation the learned Special Judge came to the conclusion that the explanation was restricted to that particular rule for giving the dismissed servant a right to prefer an appeal. We agree with the conclusion of the learned Special Judge. Section 6 of the Act reads as follows : "Previous sanction necessary for prosecution. (1) No Court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code (Act 45 of 1860), or under sub section (2) of section 5 this Act, alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save, by or with the sanction of the Central Government, of the Central Government. 241 (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from the office save by or with the sanction of the State Government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public ser vant from his office at the time when the offence was alleged to have been committed. " It seems to us that the person must be employed in connection with the affairs of the Union in sub cl. (a) and with the affairs of the State in sub cl. (b) The case of the appellant would be covered in sub cl. (a) because he had been employed in connection with the affairs of the Union. But the sub section contemplates that the person must be employed in connection with the affairs of the Union and not that he was employed with the affairs of the Union. The policy underlying section 6, and similar sections, is that there should not be unnecessary harassment of public servants. But if a person ceases to be a public servant the question of harassment does not arise. The fact that an appeal is pending does not make him A public servant. The appellant ceased to be a public servant when the order of dismissal was passed. There is no force in the contention of the learned counsel and the trial cannot be held to be bad for lack of sanction under section 6 of the Act. The other preliminary point which the learned counsel raised was that the charge was defective. We have already set out the charge. It is true that there are no instances given in the charge. But as the charge is of habitually accepting the. bribe it is no,, necessary that the various instances should have been mentioned. It was expressly so held by this Court in Biswabhusan Naik vs The State of Orissa(1). This Court overruled a similar point in the following words: "But no particulars need be set out in the charge in such a case because the offence under section 5(1) (a) does not consist of individual acts of bribe as in section 161 of the Indian Penal Code but is of a general character. Individual instances may be useful to prove (1) [1955]1 S.C.R.92. 2 807 Sup CI/71 242 the general averment in particular cases but it is by no means necessary because of the presumption which section 5(3) requires the Court to draw. " This Court accordingly held in that case that there was no illegality in the charge. We accordingly hold that the charge in this case was not illegal. We may now deal with the merits of the case. This is an appeal by special leave, and as there are concurrent findings of fact we do not ordinarily go into questions of fact. But we allowed Mr. Chari to take us through the relevant evidence, both oral and documentary, in order to show whether the concurrent findings were vitiated in any respect. He has not been able to point out any circumstances which may lead us to differ from the concur rent findings. It is true that as far as the case of Gopaldas is concerned the High Court differed from the Special Judge and held that the allegations were proved. The learned counsel has taken us in detail through the material relevant to this witness and we are inclined to agree with the conclusion arrived at by the High Court. But apart from that the concurrent findings regarding P.W. 7, Motilal, and P.W. 9, Somchand, and the presumption arising under section 5(3) are sufficient to sustain the conviction recorded against the appellant. The learned counsel urged before us that if the prosecution fails to establish any of the offences mentioned in section 5 (1) (a) to 5 (1) (d), the question of assets being found disproportionate to the known sources of the accused becomes irrelevant. A number of cases were referred to us but we are unable to agree with this proposition because we are bound by the ruling to the ,contrary given by this Court. In Biswabhusan Naik vs State of Orissa(1), after referring to section 5(1)(a) and section 5(3), Bose, J., speaking for the Court, observed : "Therefore, all that the prosecution has to do is to show that the accused, or some person on his behalf, is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account. Once that is established then the Court has to presume, unless the contrary is proved, that the accused is guilty of the new offence created by section 5, namely criminal misconduct in the discharge of his official duty." (1) [19551] 1 S.C.R. 92. 243 Then the Court proceeded to deal with the facts thus "Now the accused was found in possession of Rs. 3,148/ . He accounted for Rs. 430/ of that sum by showing that it was paid to him at the, time as a trap. He has been acquitted of that offence, so all he had to account for was the balance Rs. 2,698/ . This is a large sum for a touring officer to carry with him in cash while on tour. His explanation was not considered satisfactory and that is a question of fact with which we are not concerned in this Court. Therefore, all that remains to be seen is whether this was disproportionate to his known sources of income. " Then the Court referred to the findings regarding his total emoluments drawn and the small piece of land owned by him, and observed "Once the facts set out above were found to exist and the explanation of the accused rejected as unsatisfactory, section 5(3) was at once attracted and the Court was bound to presume (the word used in the section is 'shall ' and not 'may ') that the accused was guilty under section 5(2), especially as this part of the section goes on to say 'and his conviction 'therefor shall not be invalid by reason only that it is based solely on such presumption." These facts alone are enough to sustain the conviction and we need not consider the other matters. " The conviction, therefore, of Biswabhushan Naik, in that case, solely proceeded on the presumption as in the earlier part of the judgment it was observed that he was separately charged and separately prosecuted under section 161 of the Indian Penal Code for three specific offences of bribe taking but was acquitted on all the counts and his conviction was only under section 5 (2) alone. Similarly in C.S.D. Swamy vs The State, Swamy 's conviction was sustained only on the presumption. The appellant, Swamy, in that case was put up on trial on charges under sections 5(1) (a) and 5 (1) (d) of the Act. Payments of particular sums by way of bribe were not proved against him. But the High Court, holding that the appellant 's bare statements from the dock un supported by any other acceptable evidence could not satisfactorily account for the large deposits standing to his credit in (1) ; 244 his bank accounts raised the presumption under section 5 (3) of the ,Act and held him guilty of criminal misconduct in the discharge of his official duty under section 5 (1) (d) of the Act. It was contended before this Court that the charge relating to specific instances of bribery having failed the contrary presumption under section 5(3) of the Act should have been established. This Court repelled the argument in the following words : "The finding of the High Court and the court below is that the prosecution had failed to adduce sufficient evidence to prove those particular facts and circumstances of criminal misconduct within the meaning of section 5 (1 ) (a) of the Act, but the failure to bring the charge home to the accused under section 5 (1 ) (a) does not necessarily lead to the legal effect contended for. As soon as the requirements of sub section (3) of section 5 have been fulfilled, the Court will not only be justified in making, but is called upon to make the presumption that the accused person is guilty of criminal misconduct within the meaning of section 5 (1) (d). If there is evidence forthcoming to satisfy the requirements of the earlier part of sub section (3) of section 5, conviction for criminal misconduct can be had on the basis of the presumption which is a legal pre sumption to be drawn from the proof of ' facts in the earlier part of the sub section (3) aforesaid. That is what has been found by the courts below against the accused person. Hence, the failure of the charge under cl. (a) of sub section (1) of section 5 does not necesarily mean the failure of the charge tinder section 5(1)(d). " It will be noticed that while Bose, J., in Biswabhushan Naik vs State of Orissa(1), held that once the presumption applies the accused was guilty of the new offence created by section 5, namely. criminal misconduct in the discharge of his official duties, without specifying any of the sub clauses,Sinha, J,, as he then was. held that the offence under ' section 5 (1) (d) 'was made out. It is not necessary to decide in this case which is the correct way of putting the matter because, whichever reasoning is adopted the case of the appellant fails. The case of Surajpal Singh vs State of Uttar Pradesh(2) does not assist the appellant. It is true that, as laid down by this Court, section 5(3) does not create a new offence. But this does not mean that if the prosecution fails to prove the specific (1) ; (2) [1961] 2 S.C.R.971. 245 charges the presumption under section 5(3) cannot be applied. in Surajpal 's case what, happened was that the only charge against Surajpal was of 'criminal misconduct under section 5(1)(c) of the Act. But since he was acquitted of the charge it was held that he could not be convicted. of criminal misconduct referred to in cls. (a), (b) or (d) of section 5(1) of the Act for which he had not been charged. R. section Pandit vs State of Bihar(1) also does not assist 'the appellant. It is true that it was held in that case section 5(3) does not create a separate offence but lays down only a rule of evidence and marks a departure from the well established principle of criminal jurisprudence that onus is always on the prosecution to bring home the guilt to the accused. But it does not follow from this that if the prosecution has failed to prove specific instances it cannot rely on the presumption. The learned counsel contended that if this is the law, the prosecution need not allege any specific instance at all and could come to Court only alleging that the accused had assets disproportionate to his known sources of income. This point does not arise in this case and is not likely to arise again because the Act has since been amended and the act of possessing pecuniary resources or property disproportionate to known sources of income, for which the public servant cannot satisfactorily account, has been made into a separate offence. Therefore we need not consider this example given by the learned counsel. Accordingly we hold that the, appellant in this case had pecuniary resources and property disproportionate to his known sources of income, and that both the High Court and the learned Special Judge rightly held that the presumption arose under section 5 (3). We may mention that the learned counsel tried to show that the assets were not too disproportionate but nothing has been shown which would entitle us to set 'aside the concurrent findings on this aspect of the case. The learned counsel then said that a fine of Rs. 1,25,000/ has been levied and the appellant has already undergone sen tence of about four months. He said that the appellant is now on bail and it would be hard on him if we send him back to jail. He further said that the investigation began somewhere in 1961, the trial began in 1963, and the expenses of the,trail and the printing of the records has cost the appellant a great deal, (1) [1963] Supp. 2 S.C.R. 652. 246 and further that the State has kept Rs. 1,25,000/ out of the seized amount for recovery of the fine. The learned council for the respondent drew our attention to section 5(2) which provides that any public, servant who commits criminal miscounduct in the discharge of his duty shall be punishable with imprisonment which shall not be less than one year but which may extend to seven Years and shall also be liable to fine, provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year. It seems to us that in view of the facts mentioned by the learned counsel for the appellant it will meet the ends of justice if the sentence is reduced to one already undergone, maintaining the sentence of fine. In the result the appeal is allowed to the extent that sentence of three year 's rigorous imprisonment is altered to imprisonment already undergone. His bail bonds shall stand cancelled. V.P.S. Sentence modified.

Under section 3 of Imports & Exports Control Act 18 of 1947 all goods to which any order under sub section (1) applied shall be deemed to be goods of which the Import & Export has been prohibited under section 19 of the Sea. Customs Act 8 of 1878, and all the provisions of.that Act shall have effect accordingly. In exercise of power conferred by sections 3 and 4A of the Act 18 of 1947 the Central Government issued the Imports control) Order 1955. Clause 3 of the Order prevented the importation of any goods of the description specified in Schedule except under and in accordance with a licence or a customs clearance permit granted by the Central Government or by any officer specified in Sch. Section 5 of Act 18 of 1947 as originally enacted provided : "If any person contravenes any order made or deemed to have been made under the Act, he shall without any prejudice to any confiscation or penalty to which he may be liable under the provisions of the , as applied by sub section 2@ of section 3 be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. " By the Imports & Exports (Control) Amendment Act 4 of 1960 contravention of any conditions of a licence ranted in accordance with The terms of any order passed under the Act was also made punishable under section 5. The respondents imported certain goods from West Germany under licence granted by the Ministry of Commerce. According to the Government the goods imported were in excess of the terms of the licence and accordingly the respondents were charged with having committed ' offences under section 167(8) 'read with section 3(2) of Act 18 of 1947 and the a good s imported by them were confiscated. In lieu of the confiscation, however, a fine of Rs. 20,000/ was imposed an the respondents. A personal penalty of Rs. 25000/ was also imposed. The respondents filed ' a writ petition in the High Court which was dismissed by the Single Judge but 'allowed by the Division Bench. With certificate the Collector of Customs appealed. The only question for consideration was whether for breach of a condition of the licence penalty may be imposed under section 5 of Act 18 of 1947 read with section 167(8) of Act 8 of 1878. HELD: The appeal must be dismissed. For breach of any condition of a licence it is open to the authorities. under section 5 of Act 18 of 1947 as amended, to direct prosecution but no, 682 order confiscating goods and imposing penalty in lieu thereof could be made. The order of confiscation could only be made under section 167 cl. 8 ,of Act 8 of 1878 : in terms cl. 8 of section 167 provides for confiscation of the goods importation or exportation of which is for the time being prohibited or restricted by or under Ch. IV of the . The notification of which the contravention was alleged was not issued under section 19 of the but under the Imports & Exports (Control) Act 1947. The High Court was therefore right in holding that the scope of power under the was not enlarged by the amendment to section 5 of the Imports & Exports (Control) Act. There is nothing in the amended section 5 of the imports & Exports (Control) Act which warrants the view that the provisions of the , may be invoked to punish the breach of a condition of a licence granted under the Imports & Export , (Control) Act, 1947. [686 B C]

Appeal Nos. 685 to 690 of 1970. Appeals by certificate from the judgment and order dated 27th June 1968 by the Madras High Court at Madras in Tax case ' No,. 308 of 1964. M. C. Setalvad and T. A. Ramachandran, for the appellant. N. D. Karkhanis, section P. Nayar and R. N. Sachthey, for the respondents. The Judgment of the Court was, delivered by HEGDE, J. These are connected appeals by certificate. They are directed against the decision of the High Court of Madras in a Reference under Section 66(1) of the Indian Income Tax Act, 1922 (to be hereinafter referred to as the Act). The question of law referred for ascertaining the opinion of the High Court was : "Whether on the facts and in the circumstances of the case, the Department was justified in assessing the assessee in the status of an Association of Persons ?" In this case we are concerned with the assessment of the assessee for the assessment years 1957 1958 to 1962 63. In all these years the assessees were assessed as an 'Association of the persons '. The contention of the assessees is that in the years, in question, they should have been assessed as 'individuals, ' and not as an 'Association of Persons '. Therefore, the only question that calls for decision is as to the status of the assessee during the relevant assessment years. For deciding the question formulated above, it is necessary to divide the assessment years into two groups. For the assessment years 1957 58 and 1958 59 the assessees themselves submitted their return in the status of 'Association of Persons ', but for the later years, they submitted their returns as 'individuals '. In their returns for the assessment years 1959 60, they stated that they have divided their interest in the shares and therefore they should be thereafter assessed as 'individuals '. It is necessary to mention one other circumstance before we proceed to set out the relevant facts. The income in which we are concerned in this case arises under two heads. Part of the income arises from house property 517 and the remaining 'income arises from dividends from shares. So far as the income from house property is concerned, the High. Court has answered the question in favour of the assessee the Revenue has not appealed against that decision. Hence we need not go into that aspect. All that we have to, decide in the present case is whether the dividend income which is the subject matter cf these appeals should be assessed in the hands of the appellants. as an 'Association of Persons ' or as 'individuals '. Now, we shall refer to the material facts as could be gathered ' from the case stated, by that Tribunal. One Sinnamani Nadar(who will be hereinafter referred to as 'Nadar ') and his son Ganesan partitioned their family properties on December 4, 1940. Thereafter, Nadar started a firm of his own on June 27, 1955. Later Nadar executed a settlement deed in favour of his four grandsons, namely, G. Murugesan, G. Kathiresan, G. Raja Shankar and G. Vettrivel. The property covered by the said settlement deed included a house property, which had been let cut. Under this settlement deed, the donees are to enjoy during the life time the properties gifted and thereafter the same was to devolve on their children. Sometime thereafter Nadar purchased a number of shares in Joint Stock Companies in the. name of 'G. Murugesan & Brothers '. For each of such purchase, a debit entry was made in the books of the firm. The share applications addressed to. the companies for the transfer of the shares from the, prior owners to the name of G. Murugesan and Brothers were, signed by Padamavathy Ammal, the mother of donees as their guardian. The donees were minors at the time most of these transactions; took place. Murugesan be came a major on March 3, 1955. After 1959, Murugesan himself signed all transfer applications both on his behalf as well as on behalf of his brothers. The youngest of the brothers became a major on 15th December, 1.962. The income from the house property and the dividend income from shares were credited to an account called "G. Murugesan & Brothers" in the books of Nadar 's Firm. In those books. there are separate account$ for G. Murugesan ' G. Kathiresan, G. Raja Shankar and G. Vetrivel. Private income and expenses of these persons were credited or debited to these individual accounts. At the end of each year the balance in the account of G. Murugesan & Brothers is transferred in equal proportion to the individual accounts of the four persons mentioned above. There was a partition between Ganesan and his 'sons on 3rd February 1958, but that does not include the house property or the shares gifted by Nadar to his grandsons. As mentioned earlier for the assessment years 1957 58 and 1958 59, the assessees submitted their returns in the status of 'Association of Persons ' and thereafter they submitted their returns as individuals. 518 On the basis of the above facts, the Income Tax Officer assessed the assessee during all the years mentioned earlier in the status of 'Association of Persons '. His orders were confirmed by the Appellate Assistant Commissioner. But on a further appeal to the Appellate Tribunal, the Tribunal held that the assessee ,should be assessed as 'individuals ' and not as 'Association of Persons '. At the instance of the Commissioner, the question set out earlier was referred to the High Court. The High Court answered that question in the affirmative and in favour of the Revenue. The High Court was of the opinion that because of the fact that the shares were purchased jointly in the name of G. Murugesan & Brothers, the transfer applications were filed by Padmayathy acting as guardian of all the assessees, and further, after Murugesan became ' major, he collected the dividends jointly on behalf of the assessees , the assessees should be considered to have acted as an 'Association of Persons '. 'That conclusion is challenged before us by Mr. Setalvad, appearing on behalf of the assessees. ,Counsel urges that the facts that a joint gift of shares was made in favour of more than one persons or those shares were regis tered jointly in their names or even the fact that the dividend was realised together do not go to, show that the shareholders or the beneficiaries did act as an 'Association of Persons '. On the other hand, it is contended on behalf of the Revenue by Mr. Karkhanis that the facts proved in this case clearly establish that the assessee functioned as an 'Association of Persons '. The expression 'Association of Persons ' is not a term of article That expression has come up for consideration before this Court in more than one case. In Commissioner of Income tax, Bombay, North, Kutch and Saurashtra vs Indra Balkrishna , this Court after referring to the various judgments, observed thus : "It is enough for our purpose to refer to three decisions : In re. B. section Elias ; Commissioner of Income tax vs Laxmidas Devidas ; and In re Dwark anath Harishchandra Pitale In re B. N. Elias Derbyshire, C.J., rightly pointed out that the word "associate" means, according to the Oxford Dictionary, "to join in common purpose, or to join in an action. Therefore, an association of persons, must be one in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains. This was the view expressed by Beaumont, C.J., in Com missioner of income tax vs Lakshmidas Devidas, at page 589 (1937) 5 I.T.R., and also In re: Dwarkanath Harishchandra. 519 Pitale. In re : B. N. Elias, Costello, J., put the test in more forceful language. He said : "It may well be that the intention of, the Legislature was to hit combinations of individuals who were engaged together in same joint enterprise but did not in law constitute partnerships . when we find that there is a combination of persons formed for the promotion of a joint enterprise then I think no difficulty arises whatever in the way of saying that . these persons did constitute an association. . ". We think that the aforesaid decision correctly lay down the crucial test for determing what is an 'Association persons within the meaning of section 3 of the Income tax Act, and they have been accepted and followed in a number of later decisions of different High Courts to all of which it is unnecessary to call intention. It is, however, necessary to add some words of caution here. There is no formula of universal application as to what facts, how many of them and of what nature, are necessary to come to a Conclusion that there is an association of persons within the meaning of section 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn or not. " In the course of that judgment, this Court also observed "With regard to the shares, dividends, and interest on deposits there was no finding of any act of joint management. Indeed, the main item consists of the dividends and it is difficult to understand what act of management the windows performed in respect thereof which produced or helped to produce income. " For forming an 'Association of Persons ', the members of the association must join together for the purpose of producing an income. An 'Association of Persons ' can be formed only when two or more individuals voluntarily combine together for a certain purpose. Hence volition on the part of the member of the association is an essential ingredient. It is true that even a minor can join an 'Association of Persons ' if his lawful guardian gives his consent. In the case of receiving dividends from shares, where there is no question of any management, it is, difficult to; draw an inference that two more shareholders functioned as an 'Association of Persons ' from the mere fact that they jointly own one or more shares, and jointly receive the dividends declared. Those circumstances do not by themselves go to show that they acted as an 'Association of Persons '. But unfortunately for the assessee for the assessment years 1957 58 and 1958 59, they themselves had submitted their returns in the status of 'Association of Persons '. Those returns were 520 niether withdrawn nor did they file fresh returns as 'individuals". It was for the first time in the appeal it was argued on their behalf that they should not have been assessed as 'Association of Persons '. 'The question whether the assessees function as on 'Association of Persons ' during those years was best known to them. Their admission in that regard is an important piece of evidence. They have made no attempt to show that the said admission was made under erroneous impression of law or is otherwise vitiated. Hence for those years they were rightly assessed as an 'Association of Persons '. But so far as the other assessment years are concerned, the same result does not follow. They themselves have specifically stated that they are no more functioning as 'Association of PerSons '. In the case of 'association of persons ' it is always open to its members to withdraw from the same. No one can be compelled to continue as a member of an association. For withdrawing from an association there is no particular form need be observed. As seen earlier, herein we are concerned only with the realisation of dividends. If the individual members of the association choose to realise their dividends as individuals, there is an end of the association. The assessee 's assertion that they have realised their dividends in their individual capacity remains un rebutted. There is nothing to disprove that claim. None of the facts proved can be said to be inconsistent with the claim made by them. For the reasons mentioned above, we are unable to agree with the High Court that during the assessment years 1959 60 to 1962 63, the assessees should be held, as having functioned as an 'association of persons '. Mr. Karkhanis in support of the contention of Revenue relied on the decision of the Bombay High Court in section C. Gambatta vs Commissioner of Income tax, Bombay Therein, the only question was whether when an action is taken by an Income tax Officer under Section 23A, should the dividend deemed to have been declared to the shareholders must be considered has been taken by a husband and wife who were the joint holders of a share as an 'Association of Persons ' or by the husband alone who under the Articles of Association was to act on behalf of the joint holders. The contention of the Revenue was that the husband alone was the shareholder. On the other hand the contention of the assessee was that they were an 'Association of Persons ' and that contention was accepted by the 521 Court. The ratio of that decision has no bearing on the point in issue in the present case. We are also not able to agree with Mt. Karkhanis that the decision of this Court in N. V. Shanmugham & Co. vs Commissioner of Income Tax, Madras lends any support for the contention of the Revenue. On the other hand, therein this Court relied upon the decision of this Court in Commissioner of Income tax, Bombay North, Kutch & Saurashtra vs Indra Balkrishna In the result, Civil Appeals Nos. 685 & 686 of 1970 are dis missed with no order as to costs. Civil Appeals Nos. 687 690 of 1970 are allowed with costs one hearing fee. Consequently the answer given by the High Court in those four appeals is discharged and in its place, we answer the question, in the negative and in favour of the assessee.

Three industrial undertakings owned and managed by the Madhya Pradesh Government were transferred to the Madhya Pradesh State Industries Corporation with effect from April 1, 1963. By letter dated February 16, 1963 the State Government offered to transfer the services of the employees of the three undertakings to the Corporation on two conditions. The first one was that their existing pay and scale and other conditions of service and benefits to which they were entitled would not be affected by the transfer. The second was that the transfer of services would not be treated as an interruption in service. In other words, it was said. the employees would be entitled to leave and other benefits on the same basis as if their services under the State Corporation were a continuation of their total uninterrupted services under the said undertakings. This offer was accepted by the employees. However, relying on the second condition mentioned In the aforesaid letter the employees raised an industrial dispute in 1968, claiming from the Corporation, dearness allowance on the same scale and on the same basis as it was subsequently being paid by the State Government to its employees. The Labour Court rejected the contention. The present appellant as Secretary of the employees Union filed a writ petition under Article 2 the Constitution. The High Court dismissed the petition. By certificate appeal was filed in this Court. Dismissing the appeal. HELD : Ordinarily the change of employers would have the effect of interrupting service. Condition 2 was, therefore. meant to overcome that situation. That condition dealt solely with effect of the transfer of service on the benefits to which an employee would be entitled if there was no interruption in his service. The second sentence therein, namely 'in other words ' etc. was merely ex planatory. of the first sentence that the transfer of service will not be treated as an interruption in his service. The second sentence was not intended and could not be read as meaning that whatever benefits an employee of the State Government were to get in future the employees of the Corporation would automatically become entitled to them. If condition No. 2 was to be read as securing to a transferred employee benefits which the Government might in future confer upon its employees that would contradict condition No. 1 which secured only such benefits to which a transferred employee Was entitled at the time of transfer. [89F].

minal Appeal No. 165 of 1960. Appeal from the judgment and order dated July 22, 1960, of the Calcutta High Court in Criminal Appeal No. 448 of 1960. A.S.R. Chari, N.S. Bindra, and D.N. Mukherjee, for the appellant. B. Sen, section C. Mazumdar and P. K. Bose., for respondent. April 22. The judgment of the Court was delivered by GAJENDRAGADKAR J. The appellant Chittaranjan Das was charged with having commited an offence punishable under section 376 I.P.C. This charge was framed against him on three counts. It 240 was alleged that between November 18, 1958 and November 21, 1958 at 29A and B, Kailash Bose Street, Calcutta, lie committed rape on Sandhyarani Das Gupta alias Nirmala. The second count was that he committed the same offence at the same place and in respect of the same girl between December 1, 1958 and December 6, 1958 ; and the third count related to the commission of the said offence between December 9, 1958 and December 15, 1958 at the same place and in respect of the same girl. Along with the appellant, Ganesh De was charged with having abetted the appellant in the commission of the said offence, the charge framed against Ganesh De being under section 376 read with section 109 of the Indian Penal Code. The learned Presidency Magistrate, 8th Court, Calcutta, held the commitment proceedings, and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons. Since the offence in question was triable exclusively by the Court of Sessions, the learned Magistrate committed them to the Sessions on May 4, 1960. The case of the appellant and his co accused was then tried by the City Sessions Court at Calcutta with the aid of jury. The jury returned a verdict of guilty against the appellant in respect of all the three counts. A similiar verdict was brought by the jury in respect of the co accused Ganesh De. The learned Sessions judge took the view that the verdict of the jury was not perverse, and so, he decided to accept the said verdict and accordingly convicted the appellant under section 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge. No separate sentence was awarded in respect of the other charges. Ganesh De was also sentenced to a similiar period of imprisonment. This order was passed on July 9, 1960. 241 The appellant challenged the correctness of the order of conviction and sentence passed against him by the learned Sessions judge by preferring an appeal before the Calcutta High Court. A Division Bench of the said High Court did not feel impressed by the points made on appellant 's behalf, and so, his appeal was summarily dismissed on July 22, 1960. The appellant then applied for a certificate under Article 134 (1) (c) of theConstitution. This application was allowed by Labiri C.J. and Bose J. on the ground that some of the points which the appellant wanted to raise before this Court by his appeal were substantial points of law, and so ' _they granted him a certificate under the said Article. It is with this certificate that the appellant has come to this Court. Before dealing with the points which fall to be considered in the present appeal, it is necessary to state briefly the material facts leading to the prosecution of the appellant. Sandhyarani Das Gupta was a minor girl who was staying with her mother Soudamini in the Refugee Colony at Ghola. It appears that one Maniprova alias Manibala Majumdar induced this young girl to go to her house 'at Ashutosh Mukherjee Road, Bhowanipur some time in the first week of November 1958. Manibala induced Sandhya to go to her place with a promise that she would secure a nurse 's job for her. The appellant was the Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time and, according to the prosecution, the co accused Ganesh De was a Peon in the said office. The prosecution alleged that in course of time, Sandhya was taken to the appellant in his house in about the middle of November 1958 on the representation that the appellant wanted to give her employment. When Sandhya met the appellant, the appellant held out the hope of a job for her and he managed to ravish her. Similarly, Sandhya was taken to the house of the appellant on two or three occasions within a 242 period of one month and each time the appellant had sexual intercourse with her. Every time this happened the appellant promised that he would provide Sandhya with a job. The prosecution case is that as a result of this sexual intercourse, Sandhya conceived and the appellant was anxious to cause her abortion. In accordance with the plan, Mani bala attempted to cause her abortion but did not succeed, and so, the girl was taken to the Chittaranjan Sevasadan on February 11, 1959 where the abortion was completed. Some time, thereafter, she was sent back to her own house on her insistance. It appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him. This happened on two or three occasions again. At one of these meetings with the appellant, Sandhya was introduced to a young man named Himangsu Ganguli. This young man had approached the appellant for a job. The appellant exploited the helpless position of both Himangsu and Sandhya, and asked them to go through a show of marriage. Thereafter, the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two having posed as husband and wife. Himangsu and Sandhya then went to the house of the appellant and gave him a copy of the photograph. This time again Sandhya was ravished by the appellant. That, in broad outlines, is the prosecution case against the appellant. On June 6, 1959, Sandhya 's mother filed a complaint that her daughter had disappeared. This complaint was investigated by the Enforcement Branch Calcutta, and in consequence, Sandhya was recovered from the house of Ganesh De on June 10, 1959. She was then taken to the Tollygunge Police Station where her statement was recorded. It, however, appeared that the offence which on 243 Sandhya 's statement seemed to have been committed by the appellant was within the jurisdiction of the Amherst Street Police Station, and so, the case papers were transferred to the said Police Station. Sandhya 's statement was again recorded at this Police Station on June 12, 1959. As a result of the statement, Challan was forwarded which specified November 14, 1958, May 30, 1959 and June 6, 1959 as the dates on which the appellant had raped Sadhya. Subsequently, the appellant was arrested and he along with the co accused was charged before the Court of the Presidency Magistrate as we have already mentioned. In 'granting certificate to the appellant, the High Court has held that the point which the appellant sought to raise in regard to the invalidity and illegality of the charge was a point of substance. In fact, it has observed that the scheme of section 222 of the Criminal Procedure Code seems to suggest that the charge framed in the present case con travened the requirement of section 222 (1), and was therefore, invalid. The High Court also appears to have thought that this contention received support from a decision of the Calcutta High Court in Ali Hyder vs Emperor, (1). It is, therefore, necessary to examine this argument at the outset. We have already set out the 3 counts of the charge framed against the appellant and we have noticed that in the three counts periods were mentioned within which the appellant was alleged to have committed rape on Sandhya. The first period was between 18.11.1958 to 21.11.1958, second was 1.12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12.1958. The argument is that section 222 (1) Cr. P.C. requires that the charge must specify, inter alia, the particulars as to the time when the offence was committed, and this means that the precise date on which and the time at which the offence was committed must be stated (1) 244 in the charge. Before dealing with this argument, it is necessary to read section 22 : "(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 : Provided that the time included between the first and last of such dates shall not exceed one year. " The appellant 's contention is that it is only in cases under section 222 (2) where the prosecution is not required to specify the precise date and time at which the offence is committed ; and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which the said sub section applies that liberty may be claimed by the prosecution not to mention the date and time of the offence. In all other cases to which section 222 (1) applies, particulars as to the time and place of the alleged offence must be specifically mentioned. In our opinion, this contention is not well founded. In fact, Mr. Chari who appeared for the appellant himself fairly conceded that in almost every charge 245 to which section 222 (1) applies, it is usual to state that the particular offence was committed on or about a certain date. In other words, it is not suggested by Mr. Chari that the specific date and the specific time must necessarily be stated in the charge in every case. If it is permissible to say in a charge that a particular offence was committed on or about a specified date, without specifying the particular time, it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been committed section 222 (1) has been contravened. It is true that sub section (2) specifically deals with two kinds of offences and makes a provision in respect of them, but that is not to say that in every other case, the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was committed. It is quite clear that of the charge mentions unduly long period during which an offence is alleged to have been committed, it 'would be open to the criticism that it is too vague and general, because there can be no dispute that the requirement of section 222 (1) is that the accused person must have a reasonably sufficient notice as to the case against him. The basic requirement in every criminal trial therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and that validity of the charge must in each case be determined ' by the application of the test, viz., had the accused a reasonably sufficient notice of the matter with which he was charged ? It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal courts naturally take the precaution of framing charges with sufficient precision and particularity 246 in order to ensure a fair trial ; but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify The particular date and time at which any offence is alleged to have been committed. In this connection, it may be relevant to bear in mind that the . requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves ; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537 Cr. P. C. Take, for instance, the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence. In such a case, investigation would generally begin with, and certainly gather momentum after the discovery of the dead body. In cases of circumstantial evidence of this character, it would be idle to expect the prosecution to frame a charge specifying the date on which the offence of murder was committed. All that the prosecution can do in such cases is to indicate broadly the period during which the murder must have been committed. That means the precision of the charge in respect of the date on which the offence is alleged to have been committed will depend upon the nature of the information available to the prosecution in a given case. Where 247 it is possible to specify precisely the necessary particulars required by 'section 222 (1), the prosecution ought to mention the said particulars in the charge, but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge. In this connection, it may be useful to refer to the facts in the present case. The evidence of Sandhya shows that she and the members of her family had to face the terrible problems posed before the refugees in that part of the country, and in her anxiety to help her destitute family in its hour of need Sandhya was very easily persuaded by Manibala to adopt the course of earning money by selling her body. In such a case, if the minor girl has been exposed to the risk of having sexual intercourse with several people from time to time, it is unreasonable to expect that she would be able to specify the precise dates on which particular individuals had intercourse with her. If it is insisted that in a case of this kind, the charge of rape framed against the appellant must specify the date on which the offence was committed by him, it would really mean that the appellant cannot be charged with the offence because the unfortunate victim would, in the ordinary course of things, not be able to state precisely the dates on which she was made to submit to the appellant. Therefore, in dealing with the question as to whether the charge framed in a criminal trial has contravened section 222 (1), the Court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge could and ought to have been framed more precisely, the Court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused. That, in our opinion, is the reasonable course to adopt in dealing 248 with contentions like the one raised by the appellant before us. The question of prejudice did not impress the High Court, because it has summarily dismissed the appeal. It is not a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court. In this connection we ought to add that the decision in the case of Ali Hyder (1) to which the High Court has referred in granting a certificate on this point does not support the contention in question. The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should not have summarily dismissed his appeal, and in coming to the conclusion that this argument amounted to a substantial point of law, the High Court has referred to two decisions of this Court in Mushtak Hussein vs The State of Bombay, (2 ) and Shreekantiah Ramayya Municipalli vs State of Bombay (3). In Mushtak Hussein 's case, this Court has no doubt observed that it is riot right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points which require consideration. It was also added that in cafes which prima facie raise no arguable issue, that course is, of course, justified. It is in the light of this conclusion that this Court stated that it would appreciate it if in arguable cases the summary rejection orders give some indications of the views of the High Court on the points raised. In the case of Shreekantiah Ramayya it appeared that out of the two appeals filed separately by two different accused persons against the same judgment, one was summarily dismissed by one Bench of the High Court and the other was admitted by another Bench. It is in the light of this somewhat anomalous position that this Court repeated its observation made in the case of Mushtak Hussein (2), that summary rejections of appeals (1) (1939) 40 Cr. L .T. 280. (2) A I.R. 1953 $.C. 282. (3) A. I. R. , 249 which raise issues of substance and importance are to be disapproved. With respect, there can be no9 doubt whatever that in dealing with criminal appeals brought before them the High Courts should not summarily reject them if they raise arguable and substantial points and it would be stating the obvious if we were to add that no High Court summarily dismisses a criminal appeal if it is satisfied that it raises an arguable or substantial question either of fact or of law. In this connection, it is, however, necessary to bear in mind that it is for the High Court which deals with the criminal appeal preferred before it to consider whether it raises any arguable or substantial question of fact or law, or not. Section 421 (1) of the Code provides that on receiving the petition and copy under section 419 or section 420., the appellate court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. The proviso to this section requires that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Sub section (2) empowers the appellate court to call for the record of the case before dismissing the appeal under sub section (1) but it does not make it obligatory on the court to do so. Therefore, the position under section 421 is clear and unambiguous. When a criminal appeal is brought before the High Court, the High Court has to be satisfied that it raises an arguable or substantial question; if it is so satisfied, the appeal should be admitted; if, on the other hand, the High Court is satisfied that there is no substance in the appeal and that the view taken by the Trial Court is substantially correct, it can summarily dismiss the appeal. It is necessary to emphasis that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal, the High Court has not applied 250 its mind to all the points raised by the appellant. Summary dismissal only means that having considered the merits of the appeal, the High Court does not think it advisable to admit the appeal because in its opinion, the 'decision appealed against is right. Therefore, we do not think the High Court was right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the said High Court. If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it. The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection in the charge delivered by the learned Sessions judge to the jury. It appears that in dealing with the argument of the defence that the charge was vague and that the dates specified in the charge did not correspond to the dates given by Sandhya in her evidence, the learned Judge told the jury that if the statement of the girl in her cross examination is taken as the basis, the dates on which the girl was ravished by the appellant would not be covered by the three sets of dates mentioned in the charge, and then he added that "in case you hold that the charges are in order, in that case you shall proceed to consider the evidence. " It was urged by the appellant before the Division Bench of the High Court which granted the certificate that the last statement constituted a misdirection. The argument was that whether or not a charge is valid is a question of law which the learned judge should have decided himself and given a direction to the jury in accordance with his decision; inasmuch as he left that question to the jury, he failed to exercise his jurisdiction and to discharge his duty, and as such the 251 charge must be held to suffer from a serious misdirection. This argument appears to have appealed to the Division Bench which granted the certificate and has been pressed before us by Mr. Chari. In our opinion, there is no substance in this argument. We should have stated earlier that after the committal order was passed by the presidency Magistrate, the appellant moved the High Court in its revisional jurisdiction and urged that the charge framed against him was defective and invalid and should be quashed. The High Court rejected this contention and held that the charge was valid within the meaning of section 222 and section 234 of the Cole. Therefore, the true position is that at the time when the learned Sessions judge delivered his charge to the jury, the question about the validity of the charge had been considered by the High Court and so far as the learned Sessions Judge was concerned, the finding of the High Court was binding on him, so that when the learned Sessions judge told the jury that they may consider whether the charges were in order, he was really leaving it open to the jury to consider the matter which had been decided against the appellant and in favour of the prosecution. If there can be any grievance against this part of the charge, it would be in the side of the prosecution and not on the side of the appellant. That leaves to be considered certain other alleged misdirections to which Mr. Chari has referred. Mr. Char; contends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape, the learned judge did not cell the jury that in view of the contradictions brought out in the evidence of Sandhya and in view of her past career and record, her evidence should not be believed. Mr. Chari argues that when criminal courts require corroboration to the evidence of the prosecutrix in such cases, as a matter of prudence, it necessarily means that in the first instance, the 252 prosecutrix must appear to the court to be a reliable witness. If the prosecutrix does not appear to be a reliable witness, or if her evidence suffers from serious infirmities, corroborations in some particulars would not help the prosecution, and according to Mr. Chari, this aspect of the matter was not properly brought to the notice of the jury by the learned Sessions judge. We do not think there is any substance in this contention. We have carefully read the charge and we are satisfied that on the whole, the charge has not only been fair, but has. been more in favour of the appellant than in favour of the prosecution. In fact, the whole tone of the charge indicates that the learned Sessions judge was not satisfied that the prosecution had really made out a case against the appellant beyond a reasonable doubt. But in delivering charge to the jury, the learned Sessions judge can never usurp the function of the jury. He cannot pronounce on the reliability or otherwise of any witness. The requirement as to corroboration in regard to the evidence of a prosecutrix like Sandhya has been elaborately explained by the Sessions judge to the jury. He told them that the most important witness in the case was Sandhya and that there was hardly any corroborative evidence to her story. He also warned them that though it was not illegal to act upon the evidence of a prosecutrix, it was unsafe to adopt that course and he said that before convicting the appellant on the uncorroborated testimony of Sandhya, the members of the jury should ask themselves whether they were so much convinced about the truthfulness of the girl as to accept her evidence in its entirety. He referred to the broad and material contradictions brought out in her evidence and asked them to bear that fact in mind in deciding whether they should accept her testimony or not. Having regard to the several statements made by the learned judge in his charge on this topic we find it difficult to accept Mr. Chari 's grievance that the charge was materially defective in this matter. 253 The next misdirection or) which Mr. Chari has relied is in regard to the prosecution evidence about the age of the girl. The prosecution alleged that the girl was below If) years of age, whereas the defence contended that she was above 16 and was a consenting party. As usual, evidence was given by the prosecution in support of its case as to the girl 's age. This evidence consisted of the testimony of the girl 's mother Saudamini and of Dr. Nag as well as Dr. Saha. Having summarised the material evidence fairly and accurately, the learned judge told the jury that the said evidence was no doubt somewhat conflicting and he warned them that they had to decide as a question of fact whether the age of the girl at the relevant time was above or below 16. Mr. Chari contends that at this stage, the learned judge should have told the jury that the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age, the benefit of the doubt must go to the appellant. We do not think there is any substance in this argument. In the first part of his charge, the learned judge explained to the jury the essential requirements which had to be proved by the prosecution in support of its charge under section 376, and there the learned judge had made it clear to the jury that the prosecution had to show that the girl was below 16. 'That being so, we do not think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence, can be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice or the appellant. The last misdirection on which Mr. Chari has relied is the statement of the learned judge that the previous statements made by the girls which had been brought on the record do not constitute substantive evidence but are intended only to contradict the actual evidence given by her in court. It appears that on behalf of the appellant the evidence given 254 by the girl on a previous occasion had been brought out under s.145 of the Indian Evidence Act. In that statement the girl had sworn that Anil Chatterjee had sexual relations with her day after day and that she had sexual relations with others also. The girl admitted in her cross examination that her statement had been recorded on a previous occasion by the Magistrate, Alipore, but when the contents of the statement were put to her, she said she did not remember whether she had made those statements or not. Now, it is clear that when a previous statement is put to a witness in cross examination under s.145 of the Indian Evidence Act, its primary purpose is to contradict the witness by reference to the evidence he gives at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial. That is the true legal position and no grievance can be made against the charge for stating the said position in the terms adopted by the learned Sessions judge. Therefore, we do not think that the grievance made by Mr. Chari that the charge suffered from serious misdirections is well founded. There is one more point which we may mention before we part with this appeal. After the verdict was returned by the jury, the learned Sessions Judge considered the question as to whether he should accept the said verdict, or should make a reference. In that connection, he observed that the verdict that the jury had returned against the appellant, was practically based on the uncorroborated testimony of the prosecutrix but he thought that the said course adopted by the jury cannot be said to be illegal and he was not prepared to take the view that the verdict of the jury was in any way perverse. 255 Mr. Chari contends that having regard to the general tone of the charge delivered by the learned judge to the jury, the learned judge should have treated the verdict as perverse and not acted upon it. We do not think that this contention can be accepted. In his charge, the learned judge no doubt indicated that the evidence of the girl was not satisfactory, that it was not corroborated and that there were other circumstances which showed that the prosecution case might be improbable, but having done his duty, the learned judge had to leave it to the jury to consider whether the prosecution had established its charge against the appellant beyond reasonable doubt or not. The jury apparently considered the matter for an hour and half and returned the unanimous verdict of guilty. In the circumstances of this case, we cannot accede to Mr. Chari 's argument that the Session Judge was required by law to treat the said verdict as perverse. In a jury trial where questions of fact are left to the verdict of the jury, sometimes the verdicts returned by the jury may cause a disagreeable surprise to the judge, but that itself can be no justification for characterising the verdict as perverse. In the result, the appeal fails and is dismissed, the appellant to surrender to his bail bond. Appeal dismissed.

One Raja Sahib took a lease from the District Board, Allahabad,. with respect to the realisation of bayai and bazar dues on the sale of commodities in the bazar. The appellant was his employee to collect these dues. A peon of Raja Sahib asked Shyam Lal, P.W. 2, who had sold linseed to Mewa Lal, respondent No. 2, to come to the Munim and pay the beyai dues. Mewa Lal asked Shyam Lal not to pay those dues. The peon took Shyam Lal to the appellant. The respondent No. 2 armed with a lathi, came there and on appellant 's asking him as to why he was creating obstruction in the realisation of the dues, filthily abused him and threatened to kill him. The appellant, thereafter, on obtaining sanction of the District Magistrate, instituted a complaint against Respondent No. 2 for prosecuting him for an offence under section 107 of the United Provinces District Board Act. The trial Magistrate convicted him of the offences under sections 504 and 506 of the Indian Penal Code and also of an offence under section 107 of the Act. On appeal, Sessions judge acquitted him of all the charges. Against acquittal, the appellant filed an appeal to the High Court which was dismissed. On appeal by certificates three contentions were raised by the appellant in this Court: (i) The order of the Sessions judge aquitting Mewa Lal was bad as no notice of hearing of the appeal was issued to the appellant, on whose complaint the Magistrate convicted him, (ii) The High Court was wrong in holding that the Raja could not collect the Tah Bazari dues through his agents, and (iii) that the appellant had requisite sanction under section 182 of the Act, for prosecuting Mewa Lal, respondent No. 2. Held that section 107 of the Act does not make obstruction or molestation of an employee of the person under contract with 359 the Board, an offence. The section speaks of the obstruction or molestation of two classes of persons. One class consists of persons employed by the District Board under the Act. The Raja or the appellant is not an employee of the District Board. The second class consists of those persons who are under contract with the Board under the Act. Surely, the person under contract with the Board is the Raja and not the appellant. The appellant is only an employee of the Raja. In view of these considerations, the acquittal of the respondent No. 2 could not be interfered with merits. The appeal, therefore, must be dismissed. The appeal was not heard on merits. If was considered not necessary to decide the first contention and the Court did not express any opinion on the second contention as the terms of the lease were not known. The third contention was held to be correct.

Appeal No. 145 of 1955. Appeal from the judgment and decree dated the February 10, 1953, of the Bombay High Court in 65 Appeal No. 742 of 1951 from Original Decree, arising out of the judgment and decree dated July 31, 1951,, of the Court of the Senior Civil Judge, Poona, in Special ' Suit No. 89 of 1950. H. D. Banaji, R. A. Gagrat and G. Gopalakrishnan, for the appellant. H. N. Sanyal, Additional Solicitor General of India, H. J. Umrigar and R. H. Dhebar, for the respondent. January 16. The Judgment of the Court was delivered by DAS, C. J. This is an appeal from the judgment and decree of the High Court of Bombay dated February 10, 1953, setting aside the judgment and decree of the Court of Civil Judge, Senior Division, Poona dated July 31, 1951, in Special Suit No. 89 of 1950 and dismissing the appellant 's suit against the respondent with costs throughout. This appeal has been filed under a certificate of fitness granted by the High Court of Bombay. The facts leading up to this appeal may shortly be stated. The appellant is a public limited company registered under the Indian Companies Act, 1913. It is a lessee of two cinema Houses known respectively as " West End " and " Capitol " situated within the limits of Poona cantonment area. It exhibits in the said two Houses cinematograph films, both foreign and Indian. On March 20, 1947, a notice was issued by the respondent whereby, in exercise of the powers conferred on it by section 60 of the (11 of 1924), the respondent proposed to make, with the previous sanction of the Central Government, certain amendments in the notification of the Government of Bombay in the General Department No. 4160 dated June 17, 1918, and intimated that the draft amendments would be considered by the respondent on or after April 21, 1947, and invited objection in writing within 30 days from the publication of that notice. One of the items of amendments was as follows: "(ii) 'V Tax on Entertainments ' 9 66 1. Cinemas, Talkies or Rs. 5 0 0 per dramas Rs. 10 0 0 show 2. Circus Rs. 20 0 0 per show 3. Horse Races Rs. 100 0 0 per day of race meeting. 4. Amusement park Rs. 20 0 0 per day provided as follows: 1. The said tax shall be levied at the rate of Rs. 10 0 0 per show in the case of the West End and Capitol Talkies and at the rate of Rs. 5 0 0 per show in other cases ". It appears that the Cinematograph Exhibitors Association of India submitted certain objections to the proposals. The Cantonment Executive Officer, Poona, by his letter dated July 8, 1947, informed the Secretary of the Cinematograph Exhibitors Association of India that the latter 's letter had been submitted to the Government of India in original along with the respondent 's proposals and that the imposition of the entertainments tax on cinemas had been approved by the Government of India, Defence Department notification No. 1463 dated May 7, 1947. On June 17,1948, a notification was issued by the Government of Bombay to the effect that in supersession of the notifications of Government noted on the margin and of all other notifications on the same subject, the Governor in Council, with the previous sanction of the Governor General in Council was pleased to impose certain taxes in the Cantonment of Poona with effect from July 15, 1948. One of the taxes thus imposed was as follows: " V Tax on entertainments. Cinemas, Talkies or dramas Rs. 10.0 0 :in the case of the West End per show and Capitol In other cases Rs. 5 0 0 per show 2. Circus Rs. 2 0 0 per show 3. Horse Races Rs. 100 0 0 per day of race meetings. 4. Amusement park Rs. 20 0 0 per day. " 67 The appellant paid the tax under protest and on or about April 19, 1950, filed a suit (being suit No. 89 of 1950) against the respondent in the Court of the Civil Judge, Senior Division, Poona for a declaration that the levy, collection or recovery of the said tax by the respondent was illegal and invalid, for a permanent injunction restraining the respondent from levying, collecting or recovering the said tax, for refund of the sum of Rs. 45,802 0 0 being the total amount of tax collected from the appellant, for costs and interest on judgment. By its judgment dated July 31, 1951, the trial court decreed the suit in full. The respondent preferred an appeal before the High Court against the said judgment and decree of the trial court and the High Court by its judgment and decree dated February 10, 1953, allowed the appeal and dismissed the appellant 's suit with costs throughout. The High Court, however, granted to the appellant a certificate of fitness for appeal to this Court and hence this final appeal questioning the validity of the said tax. At all times material to this appeal the respondent was governed by the (Act 11 of 1924). Section 60 of that Act runs as follows: " 60(1) The Board may, with the previous sanction of the local Government, impose in any Cantonment any tax which, under any enactment for the time being in force, may be imposed in any municipality in the province wherein the Cantonment is situated. (2) Any tax imposed under this section shall take effect from the date of its notification in the official gazette ". The enactment under which shortly after the date of passing of the , tax could be imposed by the municipal boroughs in the province of Bombay was the Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of 1925). Therefore the powers of the respondent to. levy and collect taxes under the provisions of the were co extensive with the powers of the Borough Municipalities under the Bombay Municipal Boroughs Act, 1925. Section 73 of the last mentioned Act specified the taxes which 68 might be imposed by a municipality. The relevant portions thereof, prior to its present adaptation, were as follows: " Subject to any general or special orders which the Provincial Government may make in this behalf and to the provisions of sections 75 and 76, a municipality may impose for the purposes of this Act any of the following taxes, namely: (xiv) any other tax (not being a toll on motor vehicles and trailers. , save as provided by section 14 of the Bombay Motor Vehicles Tax Act, 1935) which under the Government of India Act, 1935, the provincial Legislature has power to impose in the province. " The question is whether the provincial legislature of Bombay had power to impose the tax which is under consideration in this appeal. Under section 100 of the Government of India Act, 1935 read with entry 50 in Sch. VII thereto the provincial legislature had power to make law with respect to " taxes on luxuries, including taxes on entertainments, amusements, betting and gambling ". Learned counsel for the appellant contends that the impugned tax is not covered by this entry at all. This entry, according to him, contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the enter tainments or the amusements and, therefore, no law made with respect to matters covered by this entry can impose a tax on persons who provide the luxuries, entertainments or amusements, for the last mentioned persons themselves receive or enjoy no luxury or entertainment or amusement, but simply carry on their profession, trade or calling. Learned counsel urges that the impugned law is really one with respect to matters specified in entry 46, namely, taxes on professions, trades, callings and employments and, there fore, cannot exceed Rs. 100 per annum under section 142A of the Government of India Act, 1935 and Rs. 250 per annum under article 276(2) of the Constitution. We are unable to accept this argument as sound. 69 As pointed out by this ' Court in Navinchandra Mafatlal vs The Commissioner of Income Tax, Bombay City (1), following certain earlier decisions referred to therein, the entries in the legislative list should not be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It has been accepted as well settled that in construing such an entry conferring legislative powers the widest possible con struction according to their ordinary meaning must be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words " taxes on luxuries or entertainments or amusements " in entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements. The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regard ed, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regard an entertainment tax as a tax on expenditure and, indeed, when the tax is imposed on the receiver of the entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax. A (1) [1955] 1 S.C.R. 829. 70 lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually practises. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so. The impugned tax is a tax on the act of entertainment resulting in a show. In our opinion, therefore, section 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law. The only other point urged before us is that the notification is violative of the equal protection clause of our Constitution in that it has picked out the appellant 's cinema houses for discriminatory treatment by imposing on it a tax at the rate of Rs. 10 per show, while a tax of only Rs. 5 per show is imposed on other cinema houses. The meaning, scope, and effect of the provisions of article 14 of our Constitution have been fully dealt with, analysed and laid down by this Court in Budhan Choudhury vs The State of Bihar (1) and Shri Rama Krishna Dalmia vs Shri Justice section R. Tendolkar (2). It appears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that there were other cinema Houses similarly situate as that of the appellant 's cinema Houses. It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be im. posed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate. There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case. It (1) (2) ; 71 may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is that in this suit the appellant has not discharged the onus that was on him and, on the material on record, it is impossible for us to hold in this case that there has been any discrimination in fact. For reasons stated above this appeal must be dismissed with costs.

The Sikkim State Civil Service was constituted in 1977, under the Sikkim State Civil Service Rules, 1977. The Rules provided for two methods of recruitment viz., competitive examination and selection from amongst persons serving in connection with the affairs of the State. On the basis of representations from officers who were not being considered for induction into the service at. its initial constitution, the Petitioner State decided to afford an opportunity to them. On 16.9.81 the State Government issued a notification for special recruitment and constituted a Selection Commit tee. Written examination cum viva voce test was adopted as the method of recruitment, and the Selection Committee prepared a merit list, on the basis of which 29 officers were appointed to the service in December, 1982. The Respondent who was working as Under Secertary to the State Government compete in the test but was not successful. He filed a Writ Petition before the High Court, challenging the notification dated 16.9.1981 and the consequent selec tion. The main contention raised by him was that the exer cise of power under Rule 4(3) on the basis of which the said notification was issued, was illegal on the ground of exces sive delegation, since the requisite conditions of existence of exigencies of service and consultation with the Public Service Commission were not satisfied. The Petitioner State contended that the Rules though 633 634 enforced, were inoperative since Public Service Commission was not in existence in the State, and the Government could issue the notification in exercise of its executive power under Article 162 of the Constitution of India; that the conditions precedent for holding the selection under Rule 4(3) were satisfied as the necessary opinion to issue the notification was formed on the basis of the reasons con tained in the Cabinet Memorandum dated 10.8.1981; that the consultation with the Public Service Commission under the Rules was directory and in any case the Service Commission was not in existence at the relevant time and that the Respondent having appeared in the written examination and viva voce test was estopped from challenging the selection. Rejecting the contentions of the State, the High Court held that the notification was violative of the Rules and quashed the selection and the consequent appointments. Aggrieved by the High Court 's decision, the State Gov ernment and the selected officers preferred the present appeals by special leave. The same contentions as were raised in the High Court were urged before this Court. Allowing the appeals, this Court, HELD: 1. The State Government was justified in issuing the notification in exercise of its executive power and the High Court fell into error in quashing the same. [642F] 2. The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruc tion, direction or notification issued in exercise of the executive power of the State which is contrary to any statu tory provisions, is without jurisdiction and is a nullity. In the instant case, the Sikkim State Civil Service Rules, 1977 though enforced, remained unworkable for about five years. The Public Service Commission, which was the authori ty to implement the said Rules, was not in existence during the said period. There is nothing on record to show as to why the Public Service Commission was not constituted during all those five years. In the absence of any material to the contrary it is assumed that there were justifiable reasons for the delay in constituting the Commission. The executive power of the State being divided amongst various function aries under Article 166(3) of the Constitution of India there is possibility of lack of co ordination amongst var ious limbs of the Government working within their respective spheres of allocation. The 635 object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrari ness, provide consistency and crystalise the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achive these objectives. Such provisions are non est till made operational. It is the operative statutory provisions which have the affect of ousting executive power of the State from the same field. When in a peculiar situation, the statutory provisions could not be operated, there was no bar for the State Government to act in exercise of its executive power. The notification to hold special selection was issued almost four years after the enforcement of the Rules. It was done to remove stagna tion and to afford an opportunity to the eligible persons to enter the service. [642A E] 3. The fact that the State Government purported to act under rule 4(3) of the Rules in issuing the notification is of no consequence. When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labelled under a different provision. [642G] 4. After the constitution of the Sikkim Public Service Commission, the Chairman of the Commission was made to preside over the Selection Committee which took the viva voce test. Thereafter the merit list was sent to the Public Service Commission and the appointment was made with the approval of the Commission. The selection was thus finally approved by the Commission which is an independent authori ty. There could be no infirmity or illegality in the process of selection or in preparing the merit list. [642H; 643A B]

l Appeal No. 2483 of 1968. Appeal by special leave from the Award dated July 24, 1968 o,f the Labour Court, Meerut in Case No. 92 of 1966. S.V. Gupte, D.N. Mukherjee and M.L. Car, for the appellant. Mohan Kumaramangalam, M.K. Ramamurthi, Vineet Kumar, Shyamala Pappu and J. Ramamurthy, for the respondents. The Judgment of the Court was delivered by Shelat, J. In this appeal, by special leave, two questions arise: (1) whether standing orders govern the employees appointed before they ,are certified under the , 20 of 1946, and (2) whether the appellant company was entitled to terminate the service of a workman appointed as a probationer before the expiry of the period of probation except on the ground of misconduct. The first question relates to 3 workmen, Alladin, Ram Prasad and Noorul Zaman, who were employed in 1929, 1935 and 1937 respectively, long before the company 's standing orders were certified and brought into force in 1951 and who were superannuated 811 under standing order 32 of the said standing orders. Prior to 1951 there were no rules or conditions of service prescribing the age of superannuation. Standing order 32 for the first time laid down 55 years as the age of superannuation. Relying on standing order 32 the company served on the three workmen notices dated December 19, 1964, November 20, 1963 and January 27, 1964, who had by then attained the age of 58, 64 and 59 years, by which the company retired them with effect from January 1, 1965, December 29, 1963 and March 1, 1964 respectively. The Labour Court, to which the dispute arising from the compulsory retirement was referred, held that the company 's standing orders having been certified long after these workmen were employed and the conditions of their employment not having provided any age of retirement, the company could not apply standing order 32 to them, and therefore, the orders of superannuation were bad, and directed their reinstatement and payment to. them of their wages from the date of retirement till the date when they would be reinstated. Thus, the question involved in this appeal is whether the company could retire 'by applying standing order 32 these three workmen, who admittedly had long passed the age of superannuation provided thereunder. Counsel for the company argued that once the standing orders are certified and come into operation, they would, subject to their modification as provided under the Act, bind all workmen, irrespective of whether they were employed before or after they came into force ', and that therefore, the Labour Court was in error in holding to the contrary and ordering their reinstatement. Mr. Kumaramangalam, on the other hand, argued ( 1 ) that the company 's action amounted to applying standing order 32 retrospectively, that was not warranted, for, if the standing orders were intended to be so applied, they would have so expressly provided, and (2) that in a previous reference, being Ref. 91 of 1964, between the appellant company and its workmen, this very Labour Court had decided that these standing orders did not apply to workmen previously employed, that an appeal was sought to be filed in this Court against that order but no special leave was granted, and therefore, that order became final. Consequently, the company was not entitled to reagitate the same question, as it was precluded from doing so by principles analogous to the principle of res judicata. The question as to whether standing orders were retrospective in their application can obviously arise only if they do not in law bind workmen previously employed. Such a question can hardly arise if the provisions of the Act show, as contended by counsel for the Company, that once they are certified and come into force, they bind both the employer and all the workmen presently employed. 812 As observed in Shahdara (Delhi) Saharanpur Light Railway Company Ltd. vs Shahdara Saharanpur Railway Workers ' Union(1) the Act is a beneficent piece of legislation, its object being to require, as its preamble and its long title lay down, employers industrial establishments to define with sufficient precision the conditions of employment of workmen employed under them and to make them known to such workmen. Before the passing of the Act, there was nothing in law to prevent an employer having different contracts of employment with workmen employed by him with different and varying conditions of service. Such a state of affairs led to confusion and made possible discriminatory treatment between employees ,and employees though all of them were appointed in the same premises and for the same or similar work. Such a position is clearly incompatible with the principles of collective bargaining and renders their effectiveness difficult, it not impossible. To do away with such diversity and bargaining with each individual workman, the legislature provided by section 3 of the Act that every employer of an industrial establishment must, within 6 months from the date of the Act becoming applicable to his industrial establishment, submit to the certifying authority under the Act draft standing orders prepared by him for adoption in his industrial establishment providing therein for *all matters set out in the Schedule to the Act, and where model standing orders are prescribed to have such draft standing orders in conformity with them. The draft standing orders are to be accompanied by particulars of workmen employed in the establishment as also the name of the union, if any, to which they belong. This requirement clearly means particulars of the workmen in employment at the date of the submission of the draft standing orders for certification and not those only who would be employed in future after certification. Under section 4, such draft orders 'are certifiable if they provide for all matters set out in the Schedule, are otherwise in conformity with the Act and are adjudicated as fair and reasonable by the certifying officer or the appellate authority. Section 5 requires the certifying officer to forward a copy of the draft standing orders to the union or in its absence to workmen in the prescribed manner with a notice requiring objection, if any, from the workmen. After giving the employer and the union or the workmen 's representatives an opportunity of being heard, the certifying officer has to decide whether or not any modification or addition to the draft submitted by the employer is necessary and then certify the draft standing orders 'and send copies thereof and of his order in that behalf to the employer, the union or the representatives of the workmen. Section 6 confers the right of appeal to any person aggrieved by such order to the appellate authority, who, by his order, can. either confirm or amend the standing orders. Under section 7, such standing (1) 813 orders are to come into operation on the expiry of 30 days from the date on which their authenticated copies are sent by the certifying officer to the parties where no appeal against these orders is filed or where such appeal is filed on expiry of 7 days from the date on which copies of the appellate authority 's order are sent as required by section 6(2). Section 9 requires the employer to post the standing orders 'as finally certified on boards maintained for that purpose at or near the entrance through which the majority of workmen inter the industrial establishment and in ' all departments thereof. Section 10 confers the right to an employer or any of the workmen to apply for modification after expiry of 6 months from the date on which they of the last modification thereof came into operation. The Schedule to the Act sets out matters which the standing orders must provide for. These matters are classification of workmen, shift working, periods and hours of work, holidays, pay days, wage rates, conditions and procedure for applying for grant of leave, closing and reopening of sections of the industrial establishment, temporary stoppage: of work, liabilities and rights of the employer and the workmen arising therefrom, termination of employment, disciplinary action, penalties etc. The obligation imposed on the employer to have standing orders certified, the duty of the certifying authority to adjudicate upon their fairness and reasonableness, the notice to be given to the union and in its absence to the representatives of the workmen, the right conferred on them to raise objections, the opportunity given to them of being heard before they are certified, the fight of appeal and the right to apply for modifications given to workmen individually, the obligation on the employer to have them published in such a manner that they become easily known to the workmen, all these provisions abundantly show that once the standing orders are certified and come into operation, they become binding on the employer and all the workmen presently employed as also those employed thereafter in the establishment conducted by that employer. It cannot possibly be that such standing orders would bind only those who are employed after they come into force and not those who were employed previously but are still in employment when they come into force. The right of being heard given to the union or, where there is No. union, to the representatives of the workmen, the right of appeal and the right to apply for modification given to workmen individually clearly indicate that they were provided for because the standing orders, as they emerge after certification, are intended to be binding on all workmen in the employment of the establishment at the date when they come into force and those employed thereafter. Surely, the union or, in its absence, the representatives of workmen, who are given the right to raise objections either to the draft standing orders proposed by the employer or to the fairness and reasonableness of their provi 814 sions, could not have been intended to speak for workmen to be employed thereafter and not those whom they presently represent. Besides, if the standing orders were to bind only those who are subsequently employed, the result would be that there would be different conditions of employment for different classes of workmen, one set of conditions for those who are previously employed and another for those employed subsequently, and where they are modified, even several sets of conditions of service depending upon whether a workman was employed before the standing orders are certified or after, whether he was employed before or after a modification is made to any one of them and would bind only a few who are recruited after and not the bulk of them, who though in employment were recruited previously. Such a result could never have been intended by the legislature, for, that would render the conditions of service of workmen as indefinite and diversities, as before the enactment o,f the Act. Why does section 3 (3) of the Act require the employer to give particulars of the workmen employed by him at the date of his submission of the draft standing orders unless the object of making him furnish the particulars was to have uniformity of conditions of service and to make the standing orders binding on all those presently employed. That is why the Act also insists among other things that after they are certified they must be made known to all workmen by posting them at or near the entrance through which they pass and in the language known to the majority o,f them. In Guest, Keen, Williams Pvt. Ltd. vs P.J. Sterling(1) a view apparent contrary to the one above stated was said to have been taken since it was held there that it was unfair in that particular case to fix the age of superannuation of previous employees by a subsequent standing order, which should apply in that matter to future entrants. In that view the Court fixed 60 years as the age of retirement for such previous employees although the standing order had provided 55 years as the age of superannuation. Salem Erode Electricity Distribution Company Ltd. vs Salem Erode Electricity Distribution Co. Ltd. Employees Union(2) this Court, however, took the same view which we have stated above and held that the provisions of the Act clearly indicated that matters specified in the Schedule to the Act should be covered by uniform standing orders applicable to all workmen employed in an industrial establishment and not merely to entrants employed after their certification. The question arose out of an application made by the employer for modification of the existing standing orders by providing different rules relating to holidays and leave for employees appointed before a certain date and those appointed after that date. Negativing such a modification, the Court, after examining (1) ; (2) ; 815 the relevant provisions of the Act, stated at pages 504 and 505 as follows: "One has ' merely to. examine these clauses one by one to be satisfied that there is no scope for having two separate Standing Orders in respect to any one of them. Take the case of classification of workmen. It is inconceivable that there can be two separate Standing Orders in respect of this matter. What we have said about classification is equally true ,about each one of the other said clauses; and so, the conclusion appears to be irresistible that the object of the Act is to, certify Standing Orders in respect of the matters covered by the Schedule; and having regard to these matters, Standing Orders so certified would be uniform and would ,apply to all workmen alike who are employed in any industrial establishment. On principle, it seems expedient and desirable that matters specified in the Schedule to the Act should be covered by uniform Standing Orders applicable to all workmen employed in an industrial establishment. It is not difficult to imagine how the application of two sets of Standing Orders in respect of the said matters is bound to lead to confusion in the working of the establishment and cause dissatisfaction amongst the employees. If Mr. Setalvad is right in contending that the Standing Orders in relation to these matters can be changed from time to time, it may lead to the anomalous result that in course of 10 or 15 years there may come into existence 3 or 4 different sets of Standing Orders applicable to the employees in the same industrial establishment, the application of the Standing Orders depending upon the date of employment of the respective employees. That, we think, is not intended by the provisions of the Act. " At page 509 to 510 the Court referred to. the case of Guest, Keen, Williams Private Ltd. (1), relied on by the employers ' counsel, and explained why the Court had fixed 60 years as the age of superannuation ,for the employees appointed before the standing orders were certified although the standing orders had fixed 55 years as the. age of superannuation stating that: "that course was adopted under the special and unusual circumstances expressly stated in the course of the judgment." (1) ; LISSupCI/69 8 816 This decision thus confirms the view taken by us that the object of the Act is to have uniform standing orders providing for the matters enumerated in the Schedule to. the Act, that it was not intended that there should be different conditions of service for those who are employed before and those employed after the standing orders come into force, and finally, that once the standing orders come into force, they bind all those presently in the employment of the concerned establishment as well those who are appointed thereafter. Counsel for the workmen, however, drew our attention to. the award in Ref. 91 of 1964 under section 4(k) of the U.P. That reference, no doubt, was between the appellant company and its workmen and the question decided there was whether the company was right in compulsorily retiring the six workmen there concerned under these very standing orders although they were employed. before they were certified and came into force. The Labour Court, relying on Workmen of Kettlewell Bullen & Co. Ltd. vs Kettlewell Bullen & Co. Ltd.(1) which in turn had relied on Guest, Keen, Williams ' case(2), held that Standing Order 32 of these Standing Orders could not be applied to those previously appointed and that, therefore, the company 's action in retiring those workmen was. not justified. We may mention that the case of Kettlewell Bullen & Co.(1) was not one concerned with Standing Orders but with rules made by the company and this Court, relying on the decision in Guest, Keen, Williams Private Ltd. (2) held that where the rules of retirement are framed by the company they would have no application of its prior employees unless such employees have accepted the new rules. It is clear that neither the case of Kettlewell Bullen & Co.(1) nor the case of Guest, Keen, Williams Private Ltd.(2) in the fight of the explanation given in the case of Salem Erode Electricity Distribution Ca. Ltd.(a), was applicable and the Labour Court was, therefore, clearly in error in basing its award on the decision in the case of Kettlewell Bullen & Co. (1).The argument, however, was that even if that award was erroneous, the company did not appeal against it, consequently it became final and the issue there decided being the same and between the same parties, principles analogous to the principle of res judicata would apply and therefore no relief should be granted in the present case to the company. It is. true, as stated in The Newspapers Ltd. vs The State Industrial Tribunal, U.P.(4) that an award bind 's not only the individualS present or represented but all workmen employed in the establishment and even future entrants. But that principle is rounded on the essential condition for the (1) , (2) ; (3) (4) ; , 761. 817 raising of an industrial dispute itself. If an industrial dispute can be raised only by a group of workmen acting on their own or through their union, the conclusion must be that all those who sponsored the dispute ,are concerned in it and therefore bound by the decision on such dispute. (see M/s. New India Motors (P) Ltd. vs K.T. Morris)(1). Such a consideration, however, is not the same as the principle of res judicata or principles analogous to res judicata. In Workmen vs Balmer Lawrie & Co.(2) no doubt, a case of revision of wage scales, this Court cautioned against applying technical considerations of res judicata thereby hampering the discretion of industrial adjudication. (see also Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. vs Shahdara Saharanpur Railway Workers ' Union(a). How inexpedient it is to apply such a principle. is evident from the fact that the 'award in Ref. 91 of 1964 was based on the decision in Kettlewell Bullen & Co. Ltd. (4) which in turn had followed the case of Guest, Keen, Williams Private Ltd.(5) on the supposition (which, as aforesaid, was no.t correct) that standing orders are not binding on those who are employed prior to their certification and their coming into force. The company, presumably, did not challenge the correctness of that award because it was perhaps then thought that was the law laid down in Guest, Keen, Williams Private Ltd.(5). The consequence of holding that the company is barred by principles analogous to res judicata would be that there would be two sets of conditions of service, one for those previously employed and the other for those employed after the standing orders were certified, a consequence wholly incompatible with the object and policy of the Act. The very basis of the award in Ref. 91 of 1964, namely, the wrong understanding of the decision in Guest, Keen, Williams Private Ltd.(5), having gone, it becomes all the more difficult and undesirable to perpetuate the distinction made therein between those who were previously appointed and those appointed subsequently and to refuse on such an untenable distinction relief to the company. The award in Ref. 91 of 1964 was made on May 24, 1965 when it was believed that the decision in Guest, Keen, Williams Co. Ltd.(5) laid down the principle that standing orders would not bind workmen previously employed. That was not so was clarified in the case of Salem Erode Electricity Distribution Co. Ltd.(6), the decision in which was pronounced on November 3, 1965 removing thereby any possible misapprehension. The present reference was made on June 23, 1966, tong after the decision in Salem Erode Electricity Distribution Co. Ltd.(6) and the Labour Court gave the award impugned in this appeal on July 24, 1968. Thus, both the Reference and the award were made in circumstances different from those which (1) , 357. (2) ; (3) (4) (5) ; (6) ; 818 prevailed when Ref. 91 of 1964 was made and disposed of, a factor making it doubtful the application of a principle such as res judicata. The second question relates to the workman, Shameem Khan. The company appointed him under a letter of appointment dated December 2, 1965 to the post of a cleaner as a probationer for 6 months with discretion to the resident engineer to extend that period. The letter also stated that during his probationary period his service would be liable to termination without any notice and without assigning any reason therefore and that he would not be deemed to have been confirmed automatically in the post on the expiry of the probation period unless so advised in writing. The workman worked ,as such probationer till February 28, 1966 when he was served with a memorandum that his service was terminated as from the close of that day. The workman 's case was that the company had no right to terminate his service before the expiry of the 6 months period of probation which is the period prescribed by standing order 2(c), that the stipulation in the letter of appointment that his service was liable to termination during the probation period was contrary to. that standing order, and that therefore, that stipulation was not valid, and lastly, that the said order, though apparently one of termination simpliciter, was not a bona fide order, was in truth punitive m nature, and therefore, could not be passed without an opportunity of being heard having been given to him in a properly held enquiry. The ,fact is that no such enquiry was held and no opportunity was given to the workman to explain any misconduct for which he could be removed or dismissed. The evidence before the Labour Court was that the concerned workman had unauthorisedly used the motor cycle belonging to one Sidhana, a shift engineer in the company and that motorcycle met with an accident while the workman was using it causing damage to it. Three days after that accident a report alleging that his work as a probationer was unsatisfactory was made by his superior officer. On this evidence the Tribunal came to the conclusion that the impugned order was not an order of termination simpliciter, that though couched in that language it was. passed as a punishment or the workman having used that vehicle without the consent of its owner and was, therefore, an order of dismissal. The Tribunal was also of the opinion that the said report alleging unsatisfactory work by the. workman was colourable and made at the instance of the shift engineer or at any rate was inspired by the s.aid incident. In this view the Labour Court held that the exercise of power to terminate the service of the workman was not bona fide and consequent it set aside that order and directed his reinstatement. 819 Now, it is a well settled principle of industrial adjudication that even if an impugned order is worded in the language of a simple termination of service, industrial tribunals can look into the facts and circumstances. of the case to ascertain if it ' was passed in colourable exercise of the power of the management to terminate the service of an employee and find out whether it was in fact passed with a view to punish him. The letter of appointment clearly states that the workman, Shameem Khan, was appointed as a probationer for a period of 6 months with power to the resident engineer to extend the period of probation. Ordinarily, that would mean that at the end of the probation period the company would have to decide whether to confirm him to a permanent post or, if that is not possible, to terminate his service. Standing order 2 (c) provides that a probationer is 'an employee who is provisionally employed to fill a permanent vacancy in a post and who has not completed the period of probation thereunder. It also lays down that the normal period of probation shall be 6 months but the resident engineer has the discretion to extend that period, the maximum period of probation being 12 months in all. Ordinarily, this would mean that a probationer 's service cannot be terminated except for some misconduct until the expiry of the probation period. The letter of appointment, No. doubt, contained a provision that the service of the workman was liable to. termination even during the probationary period. That provision, however, must be read to mean that the appointment was subject to the management 's power of termination as provided in the standing orders. Standing order 14 provides for such a power 'and lays down that the service of "any employee" (which expression includes a probationer as is clear from the classification of employees in standing order 2) can be terminated on grounds (a) to (f) therein set out. It is quite clear that the termination of service of the concerned workman cannot be attributed to any one of these grounds. Therefore, that order cannot be said to have been passed conformity with the power to terminate his service under the standing orders. But apart from this consideration, the Labour Court came to a finding on the evidence before it that the real reason for passing the impugned order was not the alleged unsatisfactory work on the part of the workman but his having unauthorisedly used the motorcycle and causing damage to. it, that the order was punitive and not a Simple termination of service and was therefore in colourable exercise of the power of termination. This finding is clearly one of fact and meant that the Labour Court rejected the evidence led by the management that the work of the concerned workman was ,found unsatisfactory. It is impossible to say from the evidence before the Labour Court that finding was perverse o.r such as could not be reasonably arrived at. In that view, it is 820 impossible to interfere with the order of the Labour Court relating to workman, Shameem Khan. In the result, the appeal is partly ,allowed. The order of the Labour Court in connection with the 3 workmen whom the company retired, is set aside but its order relating to workman, Shameem Khan, is confirmed. In accordance with the order, passed by this Court on January 24, 1969, while granting stay to the appellant company, the company will pay to the workman, Shameera Khan, interest at 6% per annum on the amount of the arrears of wages still due to him under the order of the Labour Court. As the appeal is partly allowed and partly dismissed, there will be nO order as to costs. V.P.S. Appeal partly allowed.

The assessee, owners of a tea estate in Assam, after carrying on the business of cultivation, manufacture and sale of tea during the years 1948 to 1953 sold the tea estate on July 9, 1953. In 1961, they received a notice from the Agricultural Income tax Officer to furnish returns of their agricultural income for the assessment years 1949 50 to 1953 54 in respect of that tea estate. They did not submit any returns. Thereafter, they received a notice of demand under section 23 of ' the Assam Agricultural Incometax Act, 1939, for payment of the tax assessed on best judgment basis under section 20(4). The assessees were not served with any notice under s.19(2) which provides for a notice to be served personally on the assessee, during the respective years, nor under section 30 of the Act which deals with escaped assessment. The purchasers of the tea estate were served. in 1961, with assessment orders under section 20(4) in respect of the assessment years 1951 52 to 1955 56 with notices of demand for payment of the tax assessed for each year. These assessees were also not served with any notice under section 19(2) or section 30. All the assessees challenged the assessments in writ petitions and the High Court allowed the petitions. In appeal to this Court, it was contended that the assessment proceedings commenced with the publication of a general notice under section 19(1), that it was open to the Agricultural Income tax Officer to make a best judgment assessment under section 20(4) without any limitation as to time and that it was not necessary to issue any individual notice under section 19(2) or to initiate proceedings under section 30. HELD: Notwithstanding the difference in language between section 20(4) of the Act and section 23(4) of the Income tax Act the principles laid down by this Court in interpreting sections 22, 23 and 34 of the Income tax Act apply in the interpretation of sections 19, 20 and 30, the corresponding sections of the Assam Agricultural Income tax Act. [788 A C] On those principles the publication of the general notice in any financial year under section 19(1) of the Assam Act to furnish a 'return o.f one 's agricultural income in the previous year, does not initiate proceedings against an assessee unless such assessee files a return. If no return is made pursuant to the general notice under section 19(1) assessment could be made against an assessee under section 19(2), serving an individual notice on that assessee during that financial year. Once that financial year is over, and no return has been made in response to the general notice under section 19(1) and no individual notice has been served under section 19(2), there would arise a case of escaped assessment; and, the only way to bring that income to tax is to initiate proceedings by a notice in accordance with section 30 within 3 years of 781 the end of that financial year. Since no such proceedings were initiated in the present case, the assessment orders. were rightly quashed. [787 E H] The Commissioner of Income tax, Bombay vs Ranchhodas Karsondas, Bombay, ; , Ghanshyam Das vs Regional Assistant Commissioner of Sales tax, Nagpur; , and The State of Assam vs Deva Prasad Barua, [1969] 1. S.C.R. 698, followed.

Appeal No. 455 of 1965. Appeal by special leave from the judgment and order dated September 11, 1962 of the Gujarat High Court in Civil Revision Application No. 150 of 1960. 347 G. L. Sanghi, and B. R. Agarwala, for the appellant. O. P. Malhotra and Ravinder Narain, for the respondents Nos. 1 to 4. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from a judg ment of the High Court of Gujarat passed in a Civil Revision Application arising out of a suit filed by the plaintiff respondent against the defendant appellant to recover possession of certain premises situate in Surat. The facts are as follows. The appellant became a tenant of the respondent under a rent note executed on February 27, 1947 whereby rent was fixed at Rs. 40 per month and the tenancy was to be for a period of one year from 22nd February, 1947. After the expiry of the said period, the appellant continued as a monthly tenant on the same terms and conditions as were to be found in the rent note. He fell into arrears of payment of rent and the respondent sued him for eviction some time in 1951. The suit was eventually compromised by a petition put in court bearing date September 16, 1952. Under the terms of the compromise, the defendant continued as a tenant from September 1, 1952 on the terms and conditions of the rent note dated February 27, 1947: the original conditions in respect of rent also continued excepting that the rate was lowered from Rs. 40/ to quote the words of the compromise to "standard rent of Rs. 27" and "in the matter of taxes and interest also the defendant was to act in accordance with the conditions of the aforesaid rent note. " Paragraph 2 of the compromise petition contained an account of payments made by the defendant the final. result thereof being that it was agreed between the parties that the defendant had paid Rs. 104 5 3 "which amount was to be rcmbursed by the plaintiff to the defendant when accounting the future payment of rent. " It should be noted here that according to the rent note of 1947 the tenant had agreed to pay the monthly rent of Rs. 40 together with interest at Rs. 0 12 0 per cent per annum in respect of any balance due for rent. Even after the compromise, the defendant fell in arrears again. The only payments made thereafter up to the institution of the second suit out of which the present proceedings have arisen were a sum of Rs. 250 on July 19, 1954 and Rs. 200 on March 17, 1955. The defendant did not make any payment to the plaintiff in rcspect of the permitted increases under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 from the 1 st of April, 1954; neither did he pay the taxes agreed upon. The plaintiff gave a notice to the defendant on April 18, 1955 demanding the arrears of rent and permitted increases in terms of the said Act and also terminating the tenancy of the defend 348 ant with effect from May 31, 1955 in terms of section 106 of the Transfer of Property Act. The notice was received by the defeiidant on April 21, 1955. No reply was sent thereto nor was any payment made to the plaintiff. The suit for ejectment was filed on March 15, 1956 the ground thereof as laid in the plaint being that the defendant was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act. In paragraph 6 of the plaint the dues under various heads were specified showing the arrears of rent, increases permitted thereon, interest in terms of the rent note and taxes for three years. It was pleaded by the defendant in the written statement that rent at Rs. 27 had been fixed by the court without going into the merits of the case and that standard rent or reasonable rent of the property in suit had to be fixed first and a preliminary issue in that respect should be framed. The defendant did not admit the claim to the arrears as laid in paragraph 6 of the plaint. He also pleaded that the notice of ejectment was not a valid one as the tenancy was to be reckoned in terms of the Gujarati calendar and not the Gregorian calendar. The date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purposes of the Act. On that day the defendant deposited in court a sum of Rs. 1,000. Thereafter the defendant made a deposit of a sum of Rs. 150 on February 25, 1957. The suit was decreed by the trial Judge on March 25, 1957. The trial Judge after considering the evidence on record determined the standard rent of the premises at Rs. 27, exclusive of the permitted increases and water tax and sanitary tax, payable by the defendant to the plaintiff. Holding that the defendant had not complied with section 12(3)(b) of the Act he passed a decree for eviction. The defendant went in appeal to the District Judge, Surat. He raised no contention even at the hearin of the appeal either in regard to the standard rent of the premises or in regard to interest on arrears of rent or municipal taxes or permitted increases. The finding of the trial Judge that the standard rent of the premises exclusive of permitted increases and water tax and sanitary tax was Rs. 27,1 per month was not challenged by the defendant. Nor was any question raised as to the finding that the defendant was liable to pay the plaintiff a sum of Rs. 123 4 0 as and by, way of interest on arrears of rent, a sum of Rs. 81 as and by way of water tax and sanitary tax for a period of three years prior to the date of the suit and a sum of Rs. 2 1 9 per month as and by way of permitted increases from April 1, 1954. The point regarding the validity of the notice of ejectment was however raised in the appeal. According to the judgment of the High Court, "the only contention urged 349 before the learned Assistant Judge was, whether the defendant had or had not complied with the requirements of section 12(3)(b) of the Rent Act." The Assistant Judge concluded that there had been no compliance with that section and upheld the decree for eviction. In revision three contentions were. raised before the High Court, namely, (1) as to the validity of the notice of ejectment; (2) whether section 12(3)(a) or 12(3)(b) of the Act applied; and(3) whether the defendant was entitled to protection under section 12(1) of the Act. The High Court held that it was not open to the tenant to raise the question of the validity of the notice in a revision application. Moreover, there was no substance in it as the compromise petition expressly recorded that the tenancy in terms of it should commence on September 1, 1952. With regard to the second question the High Court held that "it was common ground between the parties before the Assistant Judge that the case of the defendant fell within section 12(3) (b) of the Rent Act. " The learned Judge of the High Court noted: (a) The trial Judge turned down the applicability of section 12(3) (a) of the Act holding that the defendant had disputed the municipal taxes and permitted increases; (b) The, conditions under section 12(3) (b) of the Act were not fulfilled; (c) No contention about the applicability of 12(3) (a) was raised before the Assistant Judge in appeal and he therefore did not go into the question at all; and (d) The conditions necessary for the applicability of section 12(3)(a) were not present, as besides the amount of Rs. 27 mentioned in the compromise petition, the tenant had to pay other sums not due from him every month. The High Court further found that after the first date of hearing of the suit on September 3, 1956 rent of the premises which fell due on 1st October 1956, 1st November 1956, 1st December 1956, 1st January 1957, 1st February 1957 and 1st March, 1957 remained unpaid on March 25, 1957 when the suit was disposed of. As the defendant did not pay or deposit in court regularly the amount of standard rent which became due on the aforesaid dates barring the 1st of March 1957 (taking into account the deposit of Rs. 150 on February 25, 1957) there was default on the part of the defendant attracting the operation of section 12(3)(b) of the Act. 350 The High Court turned down the contention based on section 12(1) of the Act. At the hearing of the appeal before us, learned counsel for the appellant raised two points, namely: (1) The provisions of section 12(1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing. If at that stage it was found that the defendant had paid up all arrears due from him he could not be ejected. (2) Even applying section 12(3)(b) there was no default on the part of the defendant which would render him liable to eviction. In order to appreciate the first contention it is necessary to set out section 12 of the Act as it stood at the relevant time : "12(1)A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the pro visions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the . (3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, no decree for eviction shall be passed in any suit, if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter conti 351 nues to pay or tender in court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court. (4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit. Explanation. In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. " Learned counsel drew our attention to a judgment of this Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograj Sinha(1). There the landlord had filed a suit for possession of the premises on April 25, 1957, the period of tenancy fixed under the rent note having expired on March 14, 1957. Under section 6 of the Act a notification was issued applying Part II of the Act to the area where the property was situate. The appellants claimed protection of section 12 of the Act and the main question which engaged the attention of this Court was, whether by virtue of the first proviso to section 50 of the Act, all the provisions in Part 11 including section 12 were made expressly applicable to all suits; and secondly, whether by virtue of section 12(1) of the Act the suit was rendered incompetent. This Court turned down the contention of the respondent that the operation of section 12(1) was limited to suits filed after it came into force in a particular area and observed that under section 12(1) the landlord was not to be entitled to recover possession and the point of time when the sub section would operate was when the decree for recovery of possession would have to be passed, It appears to us that there is no substance in the contention put forward on behalf of the appellant. Section 12(1) must be read with the Explanation and so read it means that a tenant can only be considered "to be ready and willing to pay" if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the court under sub section (3) of section 11 and thereafter pays or tenders the amount of (1) ; 352 rent or permitted increases specified by the court. We have already noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of section 1 1(3) of the Act. The readiness and willingness to pay has therefore to be judged in the light of the facts of the case. Where as here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or per mitted increases recoverable under the Act, the tenant makes no application in terms of section 11(3) he cannot claim the protection of section 12(1) by merely offering to pay or even paying all arrears due from him when the court is about to pass a decree against him. In Vora Abbasbhai Alimahomed lv. Hai; Gulamnabi Haji Safibhai(1) it was pointed out that section 12(1) of the Act applied to a tenant who continued to remain in occupation even after the expiry of the contractual tenancy so long as he paid or was, ready and willing to pay the amount of the standard rent and permitted increases. The protection was howsoever available to a tenant subject to the provisions of section 13 and to the limitations contained in section 12(2) and section 12(3)(a) of the Act. In Mrs. Manorama Masurekar vs Mrs. Dhanlaxmi G. Shah and another ( 2 ) rent was in arrears for a period of more than six months and the tenant neglected to make payment of the same within one month of the notice under section 12(2). There the rent was payable by the month and there was no dispute regarding the amount of the rent. It was held that if the conditions of sub section (3)(a) of section 12 were satisfied the tenant could not claim any protection from eviction by tendering the arrears of rent after the expiry of one month from the service of notice under sub section It was observed : "It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub section (3)(a), the tenant must be dealt with under the special provisions of sub section (3)(a), and he cannot claim any protection from eviction under the general provisions of sub section (1)" As already noted, if sub section (3)(a) is not attracted, the tenant, if he is in arrears, cannot sit quiet and offer to pay all the amount due from him at the time of the hearing of the suit so as to get the protection of section 12(1). To be within the protection of subs. (1) where he raises a dispute about the standard rent payable, he must make an application to the court under sub section (3) of section 11 and thereafter pay or tender the amount of rent and permitted (1) ; (2) ; 353 increases, if any, specified in the order made by the Court. If he does not approach the court under section 1 1(3), it is not open to him thereafter to claim the protection of section 12(1). The case clearly does not come within section 12(3)(b). To be within the protection of that provision, the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay or tender in court regularly the rent and the permitted increases till the suit is finally decided. Before the date of the suit, the appellant was entitled to a credit of Rs. 104 5 3; the total payments up to the date of the first hearing including the. sum of Rs. 1,000 come to Rs. 1,554 5 3. The amounts due from him, up to that date were : (a) rent at the rate of Rs. 27 per month for 48 months. Rs. 1296 0 0 (b) permitted increases from 1 4 54 to 1 9 56. 61 3 9 (c) taxes. 81 0 0 (d) Interest on arrears at 9% p.a. 123 3 0 making a total ofRs. 1561 6 9 Moreover, there was failure on the part of the appellant to pay or tender in court the amounts which fell due from the 1st of October 1956 to the 1st of March, 1957. Thus, leaving out of consideration the question of costs awarded against him under the decree, the appellant cannot get the protection under section 12(3)(b) of the Act. A faint attempt was made to raise the point about the invalidity of the notice of ejectment on the plea that the same had to comply with section 12(2) of the Act. This is clearly fallacious as the said section merely lays down the manner in which a notice of demand of standard rent and permitted increases has to be made. The contentions raised on behalf of the appellants are therefore without any merits and the appeal is dismissed with costs. G.C. Appeal dismissed.

The statements of eye witnesses to a murder were recorded under section 164, Criminal Procedure Code, and a certificate was appended to each of the statements to the effect, that the deponent was warned that he was making the statement before a Magistrate and that it might be used against him. On the question as to the weight to, be attached to the evidence given by the witnesses in court, HELD : It did not follow from the endorsement that any threat was given to the witnesses or that it necessarily made their evidence in court suspect or less believable. [357 G] If a witness, in his evidence in court sticks to the version given by him in the statement under section 164, Cr. P.C. the mere fact that the statement was previously recorded under the section is not sufficient to discard his .,evidence. The only inference that can be drawn is that there, was a time when the police thought the witness may change his evidence. The Court. %however, ought to. receive the evidence with caution. [358 D] Observations in Parmanand vs Emperor, A.I.R. 1940 Nag. 340, 344 and In re : Gopisetti Chinna Venkatasubbialh. , I.L.R. , 639. approved. Observations contra in Emperor vs Manu Chik, A.I.R. 1938 Patna 290, 295, disapproved.

Civil Appeal No. 1774 of 1980 etc. From the Judgment and Order dated 28. 1978 of the Allahabad High Court in Civil Misc. Writ No. 495 of 1975. 945 B.R.L. Iyenger, Yogeshwar Prasad, S.P. Gupta, V.P. Sachthey, K.K. Venugopal, O.P. Rana, Dr. Y.S. Chitale, K.G. Bhagat, F.S. Nariman, Soli J. Sorabjee, H.K. Puri, G. Gopalakrishnan, Khaitan & Co., A. Subba Rao, Naunit Lal, K.M.K. Nair, J.B.D. & Co., P.R. Ramasesh, Bishambar Lal, G. Subramanium, Ms. section Dikshit, Ms. A. Subhashini, K.R. Nambiar, R.N. Poddar, B.M. Nagaria, Mrs. Rani Chhabra, R.B. Datar, P.H. Parekh, K.R. Nagaraja, B.D. Sharma, V.J. Francis, section Markendaya, R.N. Sachthey, R. Ramachandran, S.S. Khanduja, Manoj Swarup & Co., P.K. Pillai, Baggar, K.L. Mehta, Swarup John & Co., G.S. Ramarao, C.V. Subba Rao, S.K. Gupta, G.S. Chatterjee, Probir Mittra, Mrs. J. Wad, S.K. Gambhir, Pramod Dayal, R.K. Jain, S.R. Srivastava, K.K. Mohan, Dhantaraj,D.K. Agarwal, S.K. Gupta, Raju Ramachandran, Ravindra Bana,Vinoo Bhagat, K.K. Jain, A.D. Sanger, Girish Chandra, C.K. Sucharita, T.C. Sharma, Mrs. Kitty Kumaramangalam. A.V. Rangam, R.V. Ratnam and D.M. Popat for the appearing parties. The Judgment of the Court was delivered by D R.B. MISRA, J. The present group of appeals directed against the judgment of the High Court of Judicature at Allahabad dated July 28, 1978 raises a common question of law. These appeals arise out of petitions under Article 226 of the Constitution challenging the two Notifications dated January 25, 1975 issued under section 14 of the U.P. Sugarcane (Purchase Tax) Act, 1961 (hereinafter referred to as the Act for short). The petitioners also sought a Mandamus directing the State Government to grant remission in purchase tax of 0.51 paise per quintal to all the Sugar factories situated in the State of U.P. As the pattern of facts is similar in all the cases, we would refer to the facts of Civil Appeal arising out of Writ Petition No. 409 of 1975 filed by M/s. Shri Sitaram Sugar Company Limited, Bhailtapur, District Deoris, against the State of Uttar Pradesh and others to bring out the question for consideration in these appeals. The petitioner is a Public Limited Company and owns a sugar factory in Deoria known as Shri Sitaram Sugar Company Limited, Bhailtapur, U.P. The Sugar Factory is engaged in the manufacture of sugar by Vacuum Pan Process. It purchases sugarcane from the reserved area allocated to Lt under the provisions of U.P. (Regulation of Supply and Purchase) Act, 1953 and Sugarcane Control Order. 1966 946 By a Notification dated September 29, 1973 issued under clause 3 of the Sugarcane (Control) Order, 1966, Central Government fixed the price of sugarcane for the factories situated in Uttar Pradesh. The minimum price fixed by this Notification for the area in which the petitioner 's factory was situated was Rs. 8.38 per quintal. The cane growers felt agitated as according to them, the price fixed was much too low. They, therefore, made representation to the U.P. Government and as a result thereof the U.P. Government intervened in the matter and fixed sugarcane price at Rs. 12.25 per quintal for the Sugar Mills situated in the East Zone. According to the petitioner, however, the price fixed was exorbitant and as the petitioner and other sugar factories were likely to suffer enormous loses, the Sugar Factories approached the State of U.P. and brought to its notice that they were not in a position to pay the higher sugarcane price. The stand of the appellant petitioner and others is that the Chief Minister was satisfied with the demand made by the sugar factories and he assured them that the State Government would grant remission in purchase tax to all the factories situated in the East Zone. By a Notification issued under section 14(1) of the Act, the State Government granted remission to the extent of 0.51 paise per quintal to 18 Sugar Factories mentioned in the area. By another Notification of the same date, two more factories were granted the remission. As the remission was not granted to the appellant petitioner and to some other factories similarly situated, they filed petitions under Article 226 of the Constitution challenging the aforesaid Notification issued by the State Government. The State of U.P. resisted the petitions and denied the allegation of promissory estoppel and discrimination set up in the writ petition. The High Court dismissed those petitions by the impugned judgment. They have now approached this Court by special leave and raised the same contention before this Court as was raised by them before the High Court. In order to appreciate the points involved in the case, it would be appropriate at this stage to refer to the relevant provisions of the Act. Section 3 of the Act lays down that there shall be levied a tax on the purchase of sugarcane by the owner of (a) a factory at the rate of twenty five paise per maund of sugarcane; and (b) a unit at the rate of fifty 947 paise per quintal. Section 3 A(l) provides that no owner of a factory shall remove, or cause to be removed any sugar produced in the factory either for consumption or for sale, or for manufacture of. any other commodity in or outside the factory, until he has paid the tax levied under section 3, a sum specified under sub section (2), sub section (3) or sub section (4). The next relevant section with which we are directly concerned is section 14. It confers powers on the State Government to grant remission. As the decision of these appeals hinges upon the interpretation of section 14(1), it would be advisable to read the section in full. Section 14(1) reads : "Section 14(1). The State Government, on being satisfied that it is necessary so to do in the public interest, with a view to (a) encourage or regulate the supply of sugarcane to, or its purchase by factories ; or D (b) encourage the establishment of new factories ; or (c) assist factories established after the crushing season 1957 58 and purchasing sugarcane yielding low sugar recovery, May by notification in the Gazette, remit, in whole or in part, the tax payable under this Act, in any assessment year, by every such factory falling under Clause (a) or Clause (b) or Clause (c). " In the instant case, the Notification remitting the purchase tax was issued by the State Government on being satisfied so to do in the public interest with a view to encourage and regulate the supply of sugarcane to, or its purchase by the factories in the State of Uttar Pradesh during 1973 74 assessment year. Dr. Chitale, appearing for the appellants with his usual candour and fairness, gave up the plea of promissory estoppel and confined his argument to discrimination made by the State Government in granting remission of tax to some factories and 948 not to the appellants. According to him the encouragement and regulation as contemplated by clause (a) of section 14(1) of the Act was necessary to all the factories in the eastern zone and not only to a fortunate few. But the U.P. Government has refused to extend the remission to the appellant illegally when clause (a) of section 14(1) contemplates giving benefit to all the factories and there was no justification for singling out the appellants For treating them differently. The power conferred by clause (a) of section 14(1) of the Act, the counsel contends, could not be confined to Factories purchasing sugarcane yielding low recovery inasmuch as this was a consideration foreign to the purpose contemplated by clause (a) of section 14(1) of the Act. The three clauses of sub section (1) of section 14 of the Act have different object and purpose. The purpose of granting the power of remission under clause (a) is "encouragement and regulation" of the supply of sugarcane, the object of clause (b) is to encourage the establishment of new factories, and that of clause (c) is to assist factories established after the crushing season 1957 58 and purchasing sugarcane yielding low recovery. Section 14(1) confers a discretionary power on the State Government. Reading section 14 as a whole, it cannot be said that it was obligatory on the part of the State to grant exemption or remission to all the factories. The discretion has been left to the State Government to decide whether any particular factory should be granted remission or not guided by the purpose set out in the relevant clause. Neither in clause (a) nor in any other clause of section 14(1) of the Act, there is anything to indicate that the State Government must grant remission to all sugar Factories for encouraging or regulating the supply of sugarcane. The reason is obvious. It may be that a factory situated in one area or falling In one category is in need of this remission while those which are not either situated in that area or do not fall In that category may not need it. It is true that the power conferred by clause (a) is to be exercised For the purpose of encouraging and regulating the supply of sugarcane but in exercising this power, the State Government may legitimately take the view that this purpose necessitates the grant of remission only to the sugar factories purchasing 949 sugarcane yielding low recovery. By granting the remission only to sugar factories purchasing sugarcane of low recovery, the State Government in our opinion has not violated Article 14 of the Constitution. Nor Is there any contravention of the provisions of clause (a) of section 14. The question of contravention would arise if the grant of remission were founded on a ground extraneous to the provisions of section 14. The Notifications issued by the State Government clearly show that the remission was granted with the sole object of encouraging and regulating the supply of sugarcane to these factories. The exercise of the power by the State Government was in accordance with the provisions of clause (a), sub section (1) of section 14 and that by granting the remission to a few sugar factories it did not frustrate the purpose of the aforesaid provision. The use of expression "encourage or regulate" clearly indicates that the factories which really need encouragement or regulation should get the benefit of the remission under clause (a) of sub section (1) of section 14. The word "encourage" suggests that the State Government is required to exercise the power where it feels that the sugar factory requires the help for the purpose of making purchases of sugarcane. Similarly, the word "regulate" also shows that the said power can be exercised with a view to take measures to promote the sale of sugarcane. If the power conferred by clause (a) of sub section (1) of section 14 has been exercised for the purpose of granting remission to only those sugar factories which purchase sugarcane of low recovery, there is nothing wrong in so doing. It was next contended by Dr. Chitale that the factories which had recovery of 8.5 or less had been granted the remission. Some of the appellants were also in similar position and they have been refused unjustifiably and the State Government had discriminated between the factories falling in the same group and thus the Notification issued on January 25, 1975 suffered from the vice of Article 14 of the Constitution on that account also. This argument losses sight of the other clauses of the section, viz, clauses (b) and (c) of sub section (1) of section 14. Clause (b) provides for encouraging the establishment of new factories and clause (c) contemplates assistance to factories established after crushing season 1957 58 and purchasing sugarcane yielding low sugar recovery. If the State Government had chosen to give 950 remission to these factories because they fall under clause (c), some argument could have been advanced against the validity of the Notification on that basis. Under clause (c), remission is granted by way of support or aid to newly established factories to lesson the cost so that they could profitably compete in the market. The remission under clause (c) has to be confined to new factories which is a different category of sugar factories. The considerations needed for exercising the power under clause (c) are different from those under clause (a) or (b). Considered from this aspect there is no discrimination at all. Article 14 of the Constitution forbids class legislation but permits reasonable classification. It however must fulfil the twin requirements: (1) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the intelligible differentia must have a relationship to the object sought to be achieved by the Statute. If authority be needed, we may refer to Anant Mills Co. Ltd. vs State of Gujarat & Ors., The remission was granted only to the factories where the recovery from the sugarcane was low to enable the factories to make timely payments towards the cost of sugarcane and non payment of the cane prices affecting the supply of cane to factories. It was in these circumstances that the Government granted remission to the factories which needed the help. The immediate factor affecting the economy is the recovery of sugar from sugarcane and the sugar content in the cane produced goes a long way to determine the cost of sugar. Thus the sugar factories which were purchasing sugarcane yielding low recovery are distinguishable as a class separately from those which did not fall in it and there was a reasonable basis to classify those left out of that group. For the foregoing discussion, the appeals must fail. must are accordingly dismissed. In the circumstances of the case, however, the parties shall bear their own costs. All matters pending in this Court challenging the constitutional validity of the two Notifications dated January 25, 1975, will stand disposed of in terms of this judgment. P.S.S. Appeals dismissed.

Section 3(1)(a) of the U.P. Sugarcane (Purchase Tax) Act, 1961 provides for imposition of tax on the purchase of sugarcane by the owners of sugar factories. Section 14(1) of the Act empowers the State Government to grant remission in whole or in part of the tax payable in the public interest, with a view to (a) encourage or regulate the supply of sugarcane to, or its purchase by the factories, or (b) encourage the establishment of new factories, or (c) assist factories established after the crushing season 1957 58 and purchasing sugarcane yielding low sugar recovery. The Central Government by a notification dated September 29, 1973 issued under cl. (3) of the Sugarcane (Control) Order, 1966, fixed the minimum price of sugarcane for factories situated in eastern U.P. at Rs. 8.38 per quintal. To meet the growers demand for a higher price the Government of U.P. refixed the sugarcane price at Rs.12.25 per quintal for the sugar mills situated in the east zone. The sugar factories not being in a position to pay the higher price approached the State Government who by two notifications dated January 25, 1975 issued under s.14(1)(a) of the Act granted remission in purchase tax to the extent of Re. 0.51 per quintal to twenty sugar factories in the area for the assessment year 1973 74. The appellants and some other factories having been denied any remission in purchase tax, challenged the notifications by filing petitions under article 226 of the Constitution which were dismissed by the High Court. 943 In these appeals by special leave, it was contended for the appellants that the State Government in refusing to extend the remission to the appellants had discriminated against them by singling them out for treating differently as the encouragement and regulation contemplated by cl.(a) of s.14(1) of the Act was necessary to all the factories in the eastern zone and not to a fortunate few, and that the impugned notifications suffered from the vice of article 14 of the Constitution in as much as the Government had discriminated between the factories falling in the same group as those which had a recovery of 8.5 or less had been granted remission, while the appellants who were also in similar position had been left out. Dismissing the appeals, the Court, ^ HELD: 1. Article 14 of the Constitution forbids class legislation but permits reasonable classification. It, however, must fulfil the twin requirements: (1) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the intelligible differentia must have a relationship to the object sought to be achieved by the statute. [950 C D] 2. Section 14(1) of the Act confers a discretionary power on the State Government. It has been left entirely to the State to decide whether any particular factory should be granted remission or not, guided by the purpose set out in the relevant clause. Neither in cl. (a) nor in any other clause of section 14(1) there is anything to indicate that the State Government must grant remission to all sugar factories for encouraging or regulating the supply of sugarcane. [948 E F] 3. The three clauses of sub section (1) of s.14 of the Act have different object and purpose. The purpose of granting the power of remission under cl. (a) is encouragement and regulation of the supply of sugarcane, the object of cl.(b) is to encourage the establishment of new factories, and that of cl.(c) is to assist factories established after the crushing season 1957 58 and purchasing sugarcane yielding low recovery factory situated in one area or falling in one category may be in need of remission, while those which were not either 944 situated in that area or did not fall in that category may not need it. Though the power conferred by cl.(a) is to be exercised for the purpose of encouraging and regulating the supply of sugarcane, in exercising this power the State Government may legitimately take the view that this purpose necessitates the grant of remission only to the sugar factories purchasing sugarcane yielding low recovery. [948 C E] 4. The word 'encourage ' in cl.(a) of s.14(1) suggests that the State Government is required to exercise the power where it feels that the sugar factory requires the help for the purpose of making purchases of sugarcane. The word 'regulate ' contemplates that the said power can be exercised with a view to take measures to promote the sale of sugarcane. If the power conferred by cl.(a) of s.14(1) has been exercised for the purpose of granting remission to only those sugar factories which purchase sugarcane of low recovery, there is nothing wrong in so doing. [949 D E] 5. In the instant case by granting the remission only to sugar factories purchasing sugarcane of low recovery, the State Government has not violated article 14 of the Constitution. Nor was there any contravention of the provisions of cl.(a) of s.14(1). Such a question would have arisen if the grant of remission were founded on a ground extraneous to the provisions of section 14(1). [949 A B] 6. The immediate factor affecting the economy is the recovery of sugar from sugarcane and the sugar content in the cane produced goes a long way to determine the cost of sugar. Thus, the sugar factories which were purchasing sugarcane yielding low recovery are distinguishable as a class separately from those which did not fall in it and there was a reasonable basis to classify those left out of that group. [950 F G] Anant Mills Co. Ltd. vs State of Gujarat & Ors., , referred to.

tition Nos. 15863 15906 of 1984. (Under Article 32 of the Constitution of India) D.N. Goburdhan, D. Goburdhan, Ms. Gita Luthra and Ms. Pinky Anand for the Petitioners. G. Ramaswamy, Additional Solicitor General, Kuldeep Singh, Additional Solicitor General, C. Ramesh and Mrs. Sushma Suri for the Respondents. G The Judgment of the Court was delivered by RANGANATH MISRA, J. The petitioner in each of these applications under Article 32 of the Constitution is a workman engaged on terms of casual labour for periods varying between 10 140 and 16 years in the Construction Department of the Signal Unit in the Northern Railway. All the writ petitions having disposed of by a common judgment as questions of law and fact involved therein are similar. The petitioners alleged that notwithstanding the fact that each of them has put in continuous service for quite a long period, the Railway Administration, respondent herein, has not treated them as temporary servants and has applied discriminatory rates of wages. They have asked for a direction to treat the petitioners at par with maintenance workers and to declare that they are entitled to equal pay for equal work and have asked for their absorption in the regular cadre in the permanent category as per the circulars issued by the respondents. A number of documents and circulars issued by the Administration have been produced in support of their claim. The Senior Signal & Telecom Engineer (Power Signalling) has filed a counter affidavit on behalf of the respondents challenging the claim of the petitioners. According to the respondents five out of the forty four petitioners in this group of writ petitions had undergone medical examination and were granted temporary status as Khallasis. One of them has been directed to be absorbed against a permanent vacancy in the open line; five others have refused to go to the open line for permanent absorption. He further averred that though prior to the issue of the Railway Board 's directions on January 1, 1984, project casual labourers were not entitled to all the privileges like House Rent Allowance, City Compensatory Allowance, Casual Leave, increment etc., they are now entitled to all the privileges as applicable to open line temporary railway servants after attaining temporary status. In Paragraph 23 of the counter affidavit, it has been specifically pleaded that as per the extant rules, temporary status will first be given in the cadre of Khallasi and then promotion to skilled category after conducting the trade test is admissible. A further detailed counter affidavit has again been filed by another Senior Signal & Telecom Engineer, wherein along with the affidavit particulars of service of each of the petitioners has been provided. Petitioners have filed a Rejoinder. At the hearing of the applications, counsel for the petitioners as also the learned Additionaly Solicitor General were given full opportunity of placing their arguments and documents. In addition, they have also furnished written submissions. 141 It is stated on behalf of the Administration that out of fortyfour petitioners sixteen have now been empanelled and of them five have been given temporary appointments; eleven are said to have refused to join and seventeen are still continuing with temporary status. Learned Additional Solicitor General states that petitioners are project employees and do not belong to the open line. According to him employees in the open line acquire temporary status on completion of 120 days of service as against 180 days which was the previous requirement. That status is acquired on completion of 360 days by casual labour in Project Works as provided in the scheme formulated under orders of this Court, though such status were acquirable by project casual labourers on completion of 180 days of continuous employment previously. Learned counsel for the respondents has placed reliance on the definition of 'Project ' which means: "a project should be taken as construction of new lines, major projects, restoration of dismantled lines and major important open line works, line doubling, widening of tunnels etc. which are completed within a definite time limit". Admittedly the petitioners have put in more than 360 days of service. Though counsel for the petitioners had pointed out that the Administration was requiring continuous service for purpose of eligibility, learned Additional Solicitor General on instructions obtained from the Railway officers present in Court during arguments has clarified that continuity is not insisted upon and though there is break in such continuity the previous service is also taken into account. Learned Additional Solicitor General has made a categorical statement before us that once temporary status is acquired, casual employees of both categories stand at par. Keeping the prevailing practice in the Railways in view, it is difficult for us to obliterate the distinction between the two categories of employees till temporary status is acquired. With the acquisition of temporary status the casual labourers are entitled to: (1) Termination of service and period of notice (subject to the provisions of the ). (2) Scales of pay. (3) Compensatory and local allowances. 142 (4) Medical attendance (5) Leave rules. (6) Provident Fund and terminal gratuity. (7) Allotment of railway accommodation and recovery of rent. (8) Railway passes. (9) Advances. (10) Any other benefit specifically authorised by the Ministry of Railways. It is not disputed that the benefit of Discipline and Appeal Rules is also applicable to casual labour with temporary status. It is also conceded that on eventual absorption in regular employment half the service rendered with temporary status is counted as qualifying service for pensionary benefits. In the Signal and Telecom Construction organisation under which the petitioners are working, according to the Railway Administration further privileges of being regularised in permanent service is affirded by giving them access to their regularisation against permanent vacancies which mostly occur in open line. For such purpose, casual labour in open line as well as willing project casual labour are combined for the purpose of screening and forming of panel on the basis of seniority depending upon the days of work put in. In view of the submission, learned counsel for the respondents has pleaded that the allegation of discrimination does not exist. Disputes arising out of termination of employment and inter se seniority came before this Court in the Writ Petition No. 147 of 1983 (Inderpal Yadav & Ors vs Union of India. This Court changed the existing prevalent practice for reckoning seniority and directed that seniority of project casual labourers should be combined and prepared departmentwise and categorywise and in terms of the directions of this Court, steps have been taken. It has been further contended that by the time these writ petitions were filed, the Railway, Board 's order of 1st of June, 1984, had not been given but with those directions now holding the field, the ambit of grievances has been very much reduced. Learned Additional Solicitor General has gone 143 to the extent of even saying that nothing survives in the writ petitions. What exactly are the benefits admissible to temporary railway servants have, however, been seriously debated. Paragraph 2511 of the Indian Railway Establishment Manual provides: (a) "Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual. The rights and privileges admissible to such labour also include the benefits of the Discipline and Appeal Rules. Their service, prior to the date of completion of six months ' continuous service will not, however, court for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will, also, be allowed to carry forward the leave at their credit to the new post on absorption in regulation service. (b) Such casual labour who acquire temporary status, will not, however, be brought on to the permanent establishment unless they are selected through regular Selection Boards for Class IV staff. They will have a prior claim over others to permanent recruitment and they will be considered for regular employment without having to go through employment exchanges. Such of them who join as casual labourers before attaining the age of 25 years may be allowed relaxation of the maximum age limit prescribed for Class IV posts to the extent of their total service which may be either continuous or in broken periods. (c) It is not necessary to create temporary posts to accommodate casual labourers who acquire temporary status for the conferment of attendant benefits like regular scales of pay, increments etc. Service prior to the absorption against a regular temporary/permanent post after requisite selection will, however not constitute as qualifying service for pensionary benefits. " 144 It is the stand of the learned Additional Solicitor General that no pensionary benefits are admissible even to temporary railway servants and, therefore, that retiral advantage is not available to casual labour acquiring temporary status. We have been shown the different provisions in the Railway Establishment Manual as also the different orders and directions issued by the Administration. We agree with the learned Additional Solicitor General that retiral benefit of pension is not admissible to either category of employees. As already stated, sixteen out of the forty four petitioners have already been empanelled and eleven seem to have joined, while seventeen are continuing on temporary status. We expect the Railway Administration to take prompt steps to screen such of the petitioners who have not yet been tested for the purpose of regularising their service. Learned Additional Solicitor General specifically accepted the position that the petitioners should be entitled to the same pay as is 1) admissible to others either in the project or in the open line. That would take away inequality which is main grievance of the petitioners. The respondents shall have a direction to consider the claims of each of the petitioners promptly and make appropriate orders for their regularisation. For over ten years, litigations of this type have been coming to the Court. About three years back, this Court directed a scheme for absorption in Yadav 's case which has been framed and is operative. Casual labour seems to be the requirement of the Railway Administration and cannot be avoided. The Railway Establishment Manual has made provisions for their protection but implementation is not P effective. Several instructions issued by the Railway Board and the Northern Railway Headquarters were placed before us to show that the Administration is anxious to take appropriate steps to remove the difficulties faced by the casual labour but there is perhaps slackness in enforcing them. We hope and trust that such an unfortunate situation will not arise again and in the event any such allegation coming to the Court, obviously the Administration will have to be blamed. The writ petitions are disposed of with the directions indicated above without any order for costs. N.P.V. Petitions disposed of.

% The Chandigarh administration wanted the printing presses, scattered all over Chandigarh in the residential premises or small shops, to be located in an industrial area. For that purpose, the administration earmarked forty three sites in the industrial area Phase lI, and invited applications for allotment of the sites. Several persons submitted the applications with deposits of earnest money of Rs.1,000 in each. That was ten per cent of the premium payable for each site. The appellants in the C.A. No. 97 of 1981, who were among the said applicants, were called upon to deposit 25 per cent of the premium calculated at the rate of Rs.15 per square yard. The appellants complied with that demand. The authorities decided to draw lots as the applicants were more than the number of the sites available. In October 1977, lots were drawn and the appellants won. But the authorities did not issue the letters of allotments. The authorities had a second thought about the scheme of the allotment of the sites. They wanted to accommodate as many applicants as possible, which, however, could not be done in the industrial area phase II. The authorities also came to hold the view that for setting up the printing industry, larger sites as earmarked earlier would not be necessary and smaller sites would meet the requirements. Consequently, the sites proposed in the industrial phase II were given up and a lay out of smaller sites in the industrial area phase I was prepared, wherein about 131 sites were reserved for allotment to the printing press owners. The appellants as also the other applicants were intimated by letters that the said sites would be allotted at the rate of Rs.35 per square yard, and that the allotment would be made by draw of lots on October 3, 1979. The appellants did not participate in the proceedings. They moved the High Court by a writ petition, challenging the 158 revised policy of the allotment of the smaller sites on the ground inter alia that they had a right to take possession of bigger plots in respect which lots were earlier drawn in their favour. The High Court did not give substantial relief to the appellants, holding that there was nothing illegal in the said revised policy since the appellants did not acquire right to get bigger sites in the phase II, it directed that the appellants would be liable to pay at the rate of Rs.15 and not Rs.35 per square yard. The appellants appealed to this Court by special leave against the decision of the High Court (C.A 97 of 1981). The respondents the Chandigarh Administration also moved this Court by special leave (C.A. No. 98 of 1981) against the direction of the High Court as to the reduced premium to be recovered from the appellants. Dismissing both the appeals, the Court, ^ HELD: There was no substance in the appeal by the respondents. If the applicants had been allotted sites as per the original plan and as per the first draw in 1977, they would have been liable to pay at the rate of Rs.15 per square yard. In fact, the other enterpreneurs who were allotted sites in the industrial area phase II paid premium only at the rate of Rs.15 per square yard. Why then should there be a higher rate payable by the appellants? They had not asked for the sites in the industrial area phase I. Secondly, the applicants were not responsible for the delay in the allotment of sites. Thirdly, there was no evidence that the Chandigarh Administration had to incur more expenditure in forming the new sites in the phase I. The High Court was right in directing the authorities to recover only at the rate of Rs.15 per square yard. [161H; 162A C] In the case of the appeal by the appellants/owners of the printing presses, admittedly, at the relevant stage, there was no intimation of the allotment of the sites to the appellants. There was no official communication to them, as required under sub rule (3) of Rule 8 of the Chandigarh Lease Hold Sites and Building Rules, 1973. Such an intimation alone could confer the right on the appellants to obtain possession of the sites. In the absence of any such communication, the appellants could not be held to have the right to get the sites. [163F G] Emphasis was laid on the word "shall" used in sub rule (3) of Rule 8, which provides that when 10 per cent of the premium has been tendered, the Estate officer shall, subject to such directions as may be issued by the Chief Administrator in that behalf, allot a site of the size 159 applied for. There is not much force in this contention. Generally, the use of the word "shall" prima facie indicates that the particular provision is imperative, but that is not so always. The meaning to be given to a word depends upon the context in which it is used. The right of every applicant under sub rule (3) of Rule 8 is only a right to have his application considered. The acceptance of the application does not create a right for allotment of a site. The word "shall" used in the sub rule must be considered as not mandatory. imperative meaning would defeat the purpose of the rule. [163H; 164A B, F] It is not known under what provision the authorities asked the appellants to pay 25 per cent of the premium payable in respect of the sites even before allotment. There was no specific assurance or representation made by the authorities, promising to allot the sites applied for. Even if there was any such assurance, the Court did not think that it would give rise to the doctrine of promissory estoppel in the case. The authorities cannot give assurance contrary to the statutory rules. They are bound by the rule of procedure and cannot make any representation or promise to allot particular sites to the applicants. Even if they make such a promise or assurance, the doctrine of promissory estoppel cannot be invoked to compel them to carry out the promise or assurance which is contrary to law. [166B D] If there were enough plots to accommodate all the applicants in the industrial area Phase II, it would not be proper for the authorities to revise the policy and allot smaller sites in phase I. But no material was placed before the Court to come to the conclusion that there were enough industrial plots to accommodate, possibly, all the applicants. The authorities formed another lay out in phase I for want of plots in phase II. The action of the authorities was bona fide and there was no reason to doubt it. [166F G] The revised policy of the Chandigarh Administration did not suffer from any act of arbitrariness either in classifying the appellants as a separate group or in considering them for allotment of smaller sites in phase I. All the persons, who had applied for industrial sites for establishing printing presses were grouped together. They were considered together. They could not be accommodated in phase II for want of enough sites. So, another lay out was formed in phase I. The grievance of the appellants about the revised policy of the Chandigarh Administration to allot smaller sites to them, being discriminatory, was not justified. [168H; t69A C] 160 Delhi Cloth & General Mills Ltd. vs Union of India, Civil Appeal No. 223 of 1974, disposed of by this Court on October 8, 1987 and Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar and Ors,. ; , referred to.

Criminal Appeal No. 221 of 1978. From the Judgment and Order dated 30.3.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 252 of 1975. A.N. Mulla, R.L. Kohli, Harjinder Singh and R.C. Kohli for the Appellants. R.S. Sodhi for the Respondent. Judgment of the Court was delivered by BALAKRISHNA ERADI, J. This is yet another unfortunate instance of gruesome murder of a young wife by the barbaric process of pouring kerosene oil over the body and setting her on fire as the culmination of a long process of physical and mental harassment for extraction of more dowry. Whenever such cases come before the Court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the Court to deal with it in most severe and 1223 strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such anti social crimes. Amandeep Kaur, deceased, was married to Avtar Singh who figured as the first accused in the case in the Sessions Court. Kailash Kaur, the appellant, is the mother in law of the deceased and Mahinder Kaur who figured as the third accused in the case is the sister of Avtar Singh. The hus band and his parents were allegedly unhappy about the quan tum of dowry brought by the deceased and she was being subjected to severe harassment and maltreatment with a view to extract more dowry from her parents. Exhibit PK is a letter written by the deceased to her father Avtar Singh (P.W. 3) in which she has set out the details of the harass ment and maltreatment and expressed her grave apprehension that unless she was immediately taken back to the father 's house, her life itself was in imminent danger. On may 30, 1974, in the evening. Kailash Kaur and Mahinder Kaur started quarreling with the deceased and severely abused and threat ened her. Thereupon, the deceased went to her room and bolted its door from inside. Sometime later Avtar Singh, husband of the deceased, came to the house and started knocking at the door of the said room with great force because of which the door got unbolted. It would appear that after the door was opened Avtar Singh went away from the house. It is the prosecution case that immediately thereaf ter Mahinder Kaur caught hold of the deceased and Kailash Kaur (appellant) poured kerosene oil on her and set her on fire. The deceased started screaming on hearing which the people residing in the locality rushed to the house. Avtar Singh, the husband also reached there in the meantime, As she was engulfed in flames, somebody put a blanket on Aman deep Kaur and extinguished the flames. Thereafter she was carried to the Civil Hospital, Hoshiarpur. Dr. Har Parkash Bhatia (P.W. 2), who examined her sent information to the local police station on receipt of which Head Constable Naranjan Singh (P.W. 7), went over to the hospital. The doctor sent everybody other than the Head Constable out of the room where the patient was lying. He told the deceased that he would put her questions about the cause of her death. On the basis of the questions put by the doctor, Head Constable Naranjan Singh (P.W. 7) recorded her statement, on the basis of which formal First Information Report was lodged at Police Station, Hoshiarpur. Amandeep Kaur expired on June 1, 1974. At the trial the prosecution relied on exhibit PF/3, the dying declaration made by the deceased Amandeep Kaur, the letter exhibit PK writ 1224 ten by her to her father Atar Singh (P.W. 3) and the evi dence of P.W. 3 wherein he stated that the appellant, her son and daughter were dissatisfied about the quantum of dowry brought by Amandeep Kaur and on that account they had been torturing her. The learned trial Judge acting on the aforesaid evidence convicted Kailash Kaur and Mahinder Kaur of the offence under Section 302 I.P.C. and acquitted Avtar Singh, the husband, accused giving him the benefit of doubt. Kailash Kaur and Mahinder Kaur carried the matter in appeal before the High Court of Punjab and Haryana. The High Court confirmed the conviction of the appellant herein namely, Kailash Kaur, but acquitted Mahinder Kaur giving her the benefit of doubt. Aggrieved by the said judgment, the appellant has preferred this appeal before this Court after obtaining special leave. Notwithstanding the learned and persuasive arguments advanced before us by Shri A.N. Mulla, Senior Counsel ap pearing on behalf of the appellant, we find absolutely no merit in this appeal. There is no reason whatever not to act upon the dying declaration of the deceased wherein she has given a clear and vivid account of the pouring of kerosene oil over body and her being set on fire by the appellant. She had also implicated Mahinder Kaur as the person who held her while the kerosene oil was being poured on her body by the appellant. We have very grave doubts about the legality, propriety and correctness of the decision of the High Court in so far as it has acquitted Mahinder Kaur by giving her the benefit of doubt. But since the State has not preferred any appeal, we are not called upon to go into that aspect any further. In addition to the dying declaration there is also clear circumstantial evidence furnished by the fetter exhibit PK and the testimony of Atar Singh (P.W. 3) father of the deceased regarding the demands for dowry and the harassment and torture inflicted on the deceased by the accused as part of the endeavour to extract more dowry. The dying declaration made by the deceased has the ring of truth and the testimony of the doctor P.W. 2 and of the Head Constable P.W. 7 clearly establishes that she was in a fit condition to make the statement. The conviction of the appellant by the High Court was, therefore, fully justified and there is absolute ly no ground for interference with the same by this Court. We only express our regret that the Sessions Judge did not treat this as a fit case for awarding the maximum penalty under the law and that no steps were taken by the 1225 State Government before the High Court for enhancement of the sentence. The appeal is accordingly dismissed. The bail bond of the appellant will stand cancelled and she will be taken into custody forthwith to serve out the remaining portion of her sentence. P.S.S. Appeal dis missed.

The election of the respondent, who was returned to the Lok Sabha in a bye election in 1981, was challenged by the appellant under section 80 of the Representation of the People Act, 1951, on a number of grounds, including the allegations of corrupt practice of undue influence, hiring and procuring of vehicles for carrying voters and obtaining the assistance of Government servants and incurring expenses at the elec tion in excess of the permissible limit. Upon a preliminary objection raised by the respondent the High Court struck off the pleadings as vague, general, unnecessary, frivolous and vexatious within the meaning of Order VI Rule 16 of the Code of Civil Procedure and rejected the petition under Order VII Rule 11 read with section 87 of the Act on the ground that it did not disclose any cause of action. In the appeal under section 116 A of the Act against the order of the High Court, it was contended for the appellant that the High Court had no jurisdiction to entertain prelim inary objections under Order VI Rule 16 or to reject the election petition under Order VII Rule 11 of the Code before the respondent had filed his written statement to the peti tion, which deprived him of the opportunity of amending the petition by supplying material facts and particulars, that allegations contained in various paragraphs of the petition constituted corrupt practices which disclosed cause of action within the meaning of section 100 of the Act and the High Court committed error in holding that the petition was detective, on the premise that it did not disclose any triable issue, and that the election petition disclosed primary facts regarding corrupt practice and 370 if there was absence of any particulars or details the High Court should have afforded opportunity to the appellant to amend the petition. The respondent was subsequently returned to the Lok Sabha in the general election held in 1984 and the validity of that election has been upheld in Azhar Hussain vs Rajiv Gandhi, ; and Bhagwati Prasad vs Rajiv Gandhi, ; The relief of setting aside the impugned election had thus become infructuous by lapse of time as the subsequent election could not be set aside on the grounds raised in the petition. But since section 98 read with section 99 of the Act mandates investigation of charges of corrupt practice, if any, raised against the returned candi date, and as proof thereof entails incurring of disqualifi cation from contesting subsequent election for a period of six years, the Court heard the appeal at length. On the questions: Whether the High Court had jurisdic tion to strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject an election petition under Order VII Rule 11 of that Code at the preliminary stage, even though no written statement had been filed by the respondent, whether in the instant case in entertaining the preliminary objections and rejecting the election peti tion the High Court deprived the appellant of an opportunity to amend the petition and to make good the deficiencies by supplying necessary particulars and details of the corrupt practices alleged in the petition, and whether the various paragraphs of the said election petition disclosed any cause of action. Dismissing the appeal, HELD: 1.1 Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of the People Act, 1951, which is a complete and self con tained Code. Outside the statutory provisions, there is no right to dispute an election. The provisions of the Civil Procedure Code are applicable to the extent as permissible by section 87 of the Act. [387H 388B] 1.2. The scheme of the Act shows that an election can be questioned under the statute as provided by section 80 on the grounds as contained in section 100. The pleadings are regulated by section 83, which lays down a mandatory provision in providing that an election petition shall contain a COncise statement of material facts and set forth full particulars of 371 corrupt practices with exactitude. [388C] 1.3 Since allegations of corrupt practice are in the nature of criminal charges, it is necessary that each and every corrupt practice must be clearly and specifically pleaded and it should be complete in itself so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings the trial of the election petition cannot proceed for want of cause of action. [388DE] N.P. Ponnuswami vs Returning Officer, ; ; Jagan Nath vs Jaswant Singh, ; and Jyoti Basu vs Debi Ghosal, ; , referred to. 2.1 A combined reading of sections 81, 83, 86 and 87 of the Act makes it apparent that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds speci fied in section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contem plated by section 100 and if the allegations do not conform to the requirement of sections 81 and 83 the pleadings are liable to be struck off under Order VI Rule 16 of the Code of Civil Procedure. If after striking out defective pleadings the Court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order VII Rule 11 of the Code. [382H, 386A C] Azhar Hussain vs Rajiv Gandhi, ; ; Bhag watii Prasad vs Rajiv Gandhi, ; ; Udhav Singh vs Madhay Rao Scindia, ; and Charan Lal Sahu to. 2.2 In the instant case, the appellant failed to plead complete details of corrupt practices which could constitute a cause of action as contemplated by section 100 of the Act. He also failed to give the material facts and other details of the alleged corrupt practices. The High Court, therefore, rightly exercised its power in rejecting the election peti tion under Order VII Rule 11 of the Code. [401G, 403G H] 3. I Order VI Rule 16 of the Civil Procedure Code per mits striking out of pleadings which are unnecessary, scan dalous, frivolous, or vexatious or which may tend to preju dice, embarrass or delay a fair trial at any stage of the proceedings. It does not admit of any exception that the respondent must file written statement before the 372 preliminary objections could be entertained. If, therefore, a preliminary objection is raised before commencement of the trial, the court is duty bound to consider the same. It need not wait for the filing of the written statement by the defendant and point out defects. Instead it can proceed to hear the preliminary objection and strike out the pleadings. [387BC, 386D, 383AB, CD] 3.2. The High Court, therefore, had jurisdiction in the instant case to strike out pleadings at the preliminary stage even though no written statement had been filed by the respondent. [382CD] K. Kamaraja Nadar vs Kunju Thevar & Ors., , referred to. Union of India vs Surjit Singh Atwal, ; , distinguished. Vidya Charan Shukla vs G.P. Tiwari & Ors., AIR 1963 MP 356 overruled. 4.1 The Court did not deprive the appellant of the opportunity to amend the petition and to make good the deficiencies by supplying the necessary particulars and details of the corrupt practices alleged in the petition. He was free to file amendment application, but at no stage did he express any desire to make any amendment application nor he made any application to that effect before the High Court. It was open to him to have made that application but he himself did not make any such application. [387DE] 4.2 The High Court was under no legal obligation to direct the appellant to amend pleadings or to suo moto grant time for the same. Moreover, the allegations of corrupt practice as required by Section 83 were not complete and did not furnish any cause of action. [387E] 5.1 The petition was drafted in a highly vague and general manner. Various paragraphs of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. [401H] 5.2 The allegations contained in paragraphs 1 to 7 contain narration of facts as to when the election took place and the petitioner 's desire to file his nomination paper and the obstruction raised by the authorities and the allegation that the police were shadowing the appellant do not make out any ground under section 100 of the Act. [388H] 5.3 The allegation in para 8 that food was given to the workers of the respondent at some places assuming to be true does not make out a 373 case of corrupt practice or any other ground of challenge under section 100 of the Act. A corrupt practice as contemplated by section 123(6) contemplates incurring or authorising expendi ture beyond the prescribed limit. The impugned allegation does not contain any averment that the respondent incurred or authorised expenditure beyond the prescribed limit. [389B D] 5.4 Paras 9 to 19 merely show that a number of vehicles were plying with party flags of the respondent in the con stituency on different dates which by itself do not consti tute any corrupt practice. The basic ingredients to make out a ground for challenging the election under section 100 of the Act in these paras were totally lacking. They, therefore, disclosed no cause of action. [389E G] 5.5 The allegations in paras 20 and 21 that the mother of the returned candidate, who was the Prime Minister, had toured the constituency alongwith him and in her speeches had appealed to the voters to vote for him do not constitute undue influence or any other corrupt practice. It is always open to a candidate or his supporters to appeal to the electors to vote for a particular candidate for the develop ment and progress of the area. This would be a legitimate appeal, [389H 390A] 5.6 The allegations in paras 22 to 26 of the petition relate to the relationship of the appellant with his agent. These do not make out any ground under section 100 of the Act. [390BC] 5.7 The statement in para 27 that the appellant as we11 as his election agent were being followed by police does not refer to any violation of law or rule or commission of any electoral offence by the returned candidate or his workers with his consent. [390C] 5.8 The allegation in para 28 that on the polling day a lady went to the polling booth alongwith a voter where he affixed stamp on ballot paper and returned with her does not amount to any corrupt practice with consent of the returned candidate unless it could be shown that it materially af fected the result of the election. [390D] 5.9 The allegation in para 29 that on the polling day drinking water and batashas were being distributed to the voters at the polling station does not show that it was being done with the consent of the respondent or that he spent money over it or that the said action influenced the voters or that it materially affected the result of the election. In the absence of such allegations it disclosed no cause of action. [390F] 374 5.10 The allegations in paras 31 to 35 that workers of the respondent helped voters to cast their votes in favour of the respondent, do not amount to any corrupt practice unless there was further allegation that it materially affected the result of the election. [390G] 5.11 The averments made in paras 37 and 38 contain narration of facts which have no bearing on any corrupt practice. [391A] 5.12 The allegations in paras 39 to 49 that neither the appellant nor his election agent had appointed any counting agents but a number of persons had acted as his counting agents in an unauthorised manner and that complaints made by him were not considered by the Returning Officer, even if assumed to be true do not make out any case of commission of corrupt practice. [391B] The High Court, was, therefore, justified in striking out all these paragraphs. 6.1 In order to constitute a corrupt practice as contem plated by sections 77 and 123(6) it is necessary to plead requi site facts showing authorisation or undertaking of reim bursement by the candidate or his election agent. A mere vague and general statement that the candidate and his workers with his consent spent money in election in excess of the permissible ceiling would not be sufficient to con stitute corrupt practice. [392G 393A] Rananjaya Singh vs Baijnath Singh, ; ; Smt. Indira Gandhi vs RaI Narain, and Kunwar Lal Gupta vs A.N Chawla, , referred to. 6.2 Any voluntary expense incurred by a political party, well wishers, sympathisers or association of persons does not fail within the mischief of section 123(6), instead only that expenditure which is incurred by the candidate himself or authorised by him is material for the purpose ors. [392B] Dr. P. Nalla Thampy Terah vs Union of India & Ors., [1985] Supp. SCC 189, referred to. 6.3 The allegations contained in various sub paras of para 50 merely allege that a number of vehicles were plying with the flags of the party to which the returned candidate belonged and food was served in connection with the election meetings, distribution of badges and 375 leaflets. There is no allegation that the returned candidate incurred or authorised incurring of expenditure for the aforesaid purposes. Unless the allegations are specific that the candidate or his election agent authorised the expenses before the money was actually spent and that the candidate or his election agent reimbursed or undertook to reimburse the same the necessary ingredient of corrupt practice would not be complete and it would provide no cause of action to plead corrupt practice. The High Court was justified in striking out the same. [393G 394A] 7.1 If some developmental activity was carried on in the constituency and if it was completed during the election period it could not amount to any gift or promise to the voters. [394G] 7.2 The allegation in para 53(1)(A) does not disclose any material fact or particular regarding the alleged cor rupt practice of making gift which may amount to bribery within the meaning of section 123(1)(A). It merely states that Amethi railway station was being constructed and during the election its work was speeded up which persuaded the voters to cast their votes in favour of the returned candidate. There is no allegation that ,he returned candidate or his workers with his consent made any gift, offer or promise to any elector to vote or refrain from voting at an election. [394EF] 8.1 A candidate, his workers and supporters have every right under the law to canvass for the success of a particu lar candidate saying that if elected he would work for the development of the constituency. Such a promise does not in any way interfere with the free exercise of electoral right of the electors. [395E] 8.2 The allegations in paras 53(1)(B) and (C) that the returned candidate, his mother and their workers with their consent made promise through newspapers, pamphlets and speeches that voters should cast their votes in favour of the respondent for the sake of progress and development of the constituency, merely amounts to a representation being made by the party leader and the returned candidate and his workers. Such a statement of promise is a legitimate one and it does not fail within the definition of bribery and undue influence under section 123(1)(A) or section 123(2). [395B, D] 8.3 Declaration of public policy or a promise of public action or promise to develop the constituency in general do not interfere with free exercise of electoral rights as the same do not constitute bribery or undue influence. [396B] 376 Shiv Kirpal Singh vs V.V. Giri, [1971] 2 SCR 197 and H.V. Kamath vs Ch. Nitiraj singh; , , referred to. 9.1 Hiring or procuring of a vehicle by a candidate or his agent or by any other person with his consent is the first essential ingredient of the corrupt practice under section 123(5), the second such ingredient is that the hiring or procuring of the vehicle must be for conveyance of the voters to and from the polling station, and the third that conveyance of electors is free from any charge. If any of the three ingredients is not pleaded to make out a case of corrupt practice under section 123(5) the charge must fail. [397E, 399C] 9.2 The allegations contained in para 30 and 53(1)(D) conspicuously do not contain any pleading regarding hiring and procuring of the vehicles by the returned candidate or any of his workers with his consent for conveyance of the voters to and from polling station free of cost. No particu lars of any kind have been ' specified. The paras, therefore, do not make out any charge of corrupt practice as contem plated by section 123(5) and the High Court was justified in striking out the same. [399G 400A] Joshbhai Chunnibhai Patel vs Anwar Beg A. Mirza, ; ; Ch. Razik Ram vs Ch. J.S. Chouhan & Ors., ; Balwant Singh vs Lakshmi Narain, ; ; Dadasaheb Dattatraya Pawar & Ors. vs Pandurang Raoji Jagtap & Ors., ; ; Dharmesh Prasad Verma vs Faiyazal Azam, ; ; Rajendra Singh Yadav vs Chandra Sen & Ors., AIR 1979 SC 882 and Balwan Singh vs Prakash Chand & Ors., ; , referred to. 10.1 In order to constitute a corrupt practice under section 123(7), it is essential to clothe the petition with a cause of action which would call for an answer from the returned candidate and it should, therefore, plead mode of assist ance, measure of assistance and all facts pertaining to the assistance. The pleading should further indicate the kind or form of assistance obtained and in what manner the assist ance was obtained or procured or attempted to be procured by the candidate. for promoting the prospect of his election. The petitioner must state with exactness the time of assist ance, the manner of assistance and the persons from whom assistance was obtained or procured by the candidate. [400DE] 10.2 The allegations in sub paras 1, 2 and 3 of para 53(1)(E) that though the appellant had not appointed any counting agent but still 377 certain persons acted as his counting agents and the return ing officer did not hold any inquiry into his complaint, in sub para 4 that there was fear psychosis and it looked as if the police and other government officials wanted to help the returned candidate, in sub para 5 of certain persons helping the voters to cast their votes on the polling day and that some persons cast votes 100 to 200 times and their signa tures were not obtained do not make out any charge of cor rupt practice within the provisions of section 123(7). [400FG] 11. The allegations in para 53(2) that the presiding officers did not perform their duties in accordance with law inasmuch as they failed in their duty to remove the posters and other propaganda material from the polling booth and that the election symbol of the returned candidate was displayed within 100 metres of the polling booth in viola tion of the rules do not make out any charge of corrupt practice. If at all, it could be a ground under section 100(1)(d)(iv) for setting aside election on the ground of its being materially affected but no such plea was raised. [401EF] 12. The allegation in para 52 that the returned candi date had polled cent per cent votes in his favour in certain villages of the constituency do not make out any corrupt practice or any ground of challenge under section 100 and it was rightly struck off by the High Court. [394B] 13. Order VI Rule 17 of the Code of Civil Procedure permits amendment of an election petition but the same is subject to the provisions of the Act. Section 81 prescribes a period of 45 days from the date of the election for pre senting election petition calling in question the election of the returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in section 81 would amount to contravention of these provisions and is beyond the ambit of section 87 of the Act. A new ground cannot, thus, be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. [402CD] In the instant case, the election petition was presented to the Registrar of the High Court on the last day of the limitation. The amendments claimed by him are not in the nature of supplying particulars instead those seek to raise new grounds of challenge. Various paras of the election petition which are sought to be amended do not disclose 378 any cause of action. Therefore, it is not permissible to allow amendment after expiry of the period of limitation. [402A, E] 14.1 Court should not undertake to decide an issue unless it is a living issue between the parties, for if an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time to engage itself in decid ing it. [380D] Sun Life Assurance Company of Canada vs Jervis, , referred to. 14.2 Election is the essence of democratic system and purity of elections must be maintained to ensure fair elec tion. Election petition is a necessary process to hold inquiry into corrupt practice to maintain the purity of election. But there should be some time limit for holding this inquiry. [381E] 14.3 Parliament should consider the desirability of amending the election law to prescribe time limit for in quiry into the allegations of corrupt practice or to devise means to ensure that valuable time of this Court is not consumed in election matters which by afflux of time are reduced to mere academic interest. [381D]

ition No. 1395 of 1987. (Under Article 32 of the Constitution of India). N.A. Palkhiwala, T.R. Andhyarujina, Soli J. Sorabjee, R. Dada, section Ganesh, J.R. Gagrat, R.B. Aggarwala, P.G. Gokhale, V.B. Aggarwala, R.J. Gagrat, R.B. Hathikhanawala, R.F. Nariman, P.H. Parekh, Sanjay Bhartari, M.K. Menon, R.K. Dhillon, Ms. Rohini Chhabra, Ms. Sunita Sharma and Ms. Ayesha Misra for the Petitioners. K. Parasaran, Attorney General, B. Datta, Addl. Solici tor General, Dr. V. Gauri Shankar, S.K. Dholakia, P.S. Poti, G.A. Shah, V. Jaganatha Rao, K. Sudhakaran, Ms. A. Subha shini, B.B. Ahuja, H.K. Puri, A Subba Rao, A.S.Bhasme, K.R. Nambiar, M.N. Shroff, M. Veerappa, R. Mohan, R. Ayyamperumal and J.P. Mishra for the Respondents. The following judgments of the Court were delivered: 927 VENKATACHALIAH, J. In these writ petitions under Article 32 of the Constitution of India, petitioners who are engaged in, or associated with, the Hotel Industry in India chal lenge the constitutional validity of the Expenditure Tax Act, 1987 (Central Act 35 of 1987). The Act envisages a tax at 10 per cent ad valorem on 'chargeable expenditure ' in curred in the class of Hotels wherein "room charges" for any unit of residential accommodation are Rupees Four Hundred per day per individual. The 'Chargeable expenditure ' as defined in Section 5 of the Act include expenditure incurred in or payments made in such class of hotels in connection with the provision of any accommodation, residential or otherwise, food or drink whether at or outside the hotel; or for any accommodation in such hotel on hire or lease; or any other services envisaged in that Section. However, any expenditure incurred in or paid for in "foreign exchange" or by persons who enjoy certain diplomatic privileges and immunities are exempt. The challenge to the vires of the 'Act ' is on grounds of lack of legislative competence and of violation of the rights under Article 14 and 19(1)(g). Union of India seeks to sustain the legislative competence to enact the impugned law under Article 248 read with Entry 97 of List I of the Seventh Schedule. Writ Petition No. 1395 of 1987 is quite comprehensive as to the array of parties and may generally be regarded as representative of the contentions urged in support of the challenge. The first petitioner therein is "The Federation of Hotel & Restaurant Association of India" which is said to be a representative body of over 1,000 member petitioners in India. Petitioners 2 to 5 are said to be the Regional Associations of the Federation and Petitioners 6 and 7 are two Hotel companies which own several hotels in India. Petitioners 8 and 9 are Indian citizens who are the direc tors and shareholders of petitioners 6 and 7 respectively. Petitioner 10, is a practising chartered accountant who claims to use the services in the several Hotels in India owned by the members of the Federation. The array of peti tioners is quite comprehensive so as to include all inter ests affected so as to satisfy the requisite standing to sue from all points of view. The Expenditure Tax Bill No. 90 of 1987, preceding the impugned Act was introduced in the Union Legislature on 21.8.1987. It became an Act on 14.9.1987. It extends to the whole of India except the State of Jammu and Kashmir. The requisite notification under Section 1(3) of the Act was issued on 14.10.1987 appointing 1.11.1987 928 as the date on which the Act shall come into force. The Expenditure Tax Bill No. 90 of 1987 states the following as its objects and reasons: "The Bill seeks to impose a tax on expenditure incurred in hotels were the room charges for any Unit of residential accommodation are four hundred rupees or more per day per individual. This tax will be levied at the rate of ten per cent of the expenditure incurred in connection with provi sion of any accommodation, food, drinks, and certain other categories of services. This tax will not apply to expendi ture incurred in foreign exchange or in the case of person enjoying diplomatic privileges." (Emphasis supplied) 4. A brief survey of the provisions of the Act is perhaps necessary to apprehend and assess the grounds of challenge in their true perspective. Section 4 is the charg ing section which says: "Subject to the provisions of this Act, there shall be charged on and from the commencement of this Act, a tax at the rate of ten per cent of the chargeable expenditure. " The expression 'chargeable expenditure ' is defined in clauses (a), (b), (c) and (d) of Section 5, which read: "For the purposes of this Act, chargeable expend iture means any expenditure incurred in, or payments made to, a hotel to which this Act applies, in connection with the provision of, (a) any accommodation, residential or otherwise; or (b) food or drink by the hotel, whether at the hotel or outside, or by any other person at the hotel; or (c) any accommodation in such hotel on hire or lease; or (d) any other services at the hotel, either by the hotel or by any other person, by way of beauty parlour, health 929 club, swimming pool or other similar services." (Rest of the provisions of Section 5 are omitted as unnecessary for the present) The expression 'Assessee ', 'Hotel ', 'Room charges ' are some of the material expressions defined in the interpreta tion clause. 2(1) "assessee" means a person responsible for collecting the expenditure tax payable under the provisions of this Act. 2(6) "Hotel" includes a building or part of a building where residential accommodation is, by way of business, provided for a monetary consideration. 2(10) "room charges" means the charges for a unit of residential accommodation in a hotel and includes the charges for (a) furniture, air conditioner, refrigerator, radio, music, telephone, television, and (b) such other services as are normally included by a hotel in room rent, but does not include charges for food, drinks and any services other than those referred to in sub clauses (a) and (b). Section 3 is the crucial provision which lays down the differentia for the classification of the Hotel to which the 'Act ' applies. Section 3 is the crucial provision which lays down the differentia for the classification of the Hotel to which the 'Act ' applies. That section provides that the 'Act ' shall apply in relation to any 'chargeableexpenditure ', incurred in a hotel wherein the "room charges" for any unit of resi dential accommodation at the time of incurring of such expenditure are Rs.400 or more per day per individual. The levy of tax is confined to such class of Hotels which satis fy that statutory standard. Where, however, composite charges are payable in respect of both residential accommo dation and food, then the "room charges" for purposes of determination of the criteria attracting the Act shall have to be apportioned in the manner to be prescribed. Section 3 930 enables the assessing officer to determine the 'room charges ' on such reasonable basis as he may deem fit where: .lm60 "(i) a composite charge is payable in respect of residential accommodation, food, drinks and other services, or any of them, and the case is not covered by the provi sions of sub section (2), or (ii) it appears to the Income tax Officer that the charges for residential accommodation, food, drinks or other services are so arranged that the room charges are under stated and other charges are overstated," Sections 6 and 24 envisage and provide for the authori ties to administer Act and engrafts the machinery and proce dure of the Income tax Act. Section 6(1) says: "Every Director of Inspection, Commissioner of Incometax, Commissioner of Income tax (Appeals), Inspecting Assistant Commissioner of Income tax, Income tax Officer and Inspector of Income tax shall have the like powers and perform the like functions under this Act as he has and performs under the Income tax Act, and for the exercise of his power and the performance of his functions, his jurisdiction under this Act shall be the same as he has under the Income tax Act." Section 24 provides: "The provisions of the following sections and Schedules of the Income tax Act the Income tax (Certificate Proceedings) Rules, 1962, as in force from time to time, shall apply with necessary modifications as if the said provisions and the rules referred to expenditure tax instead of to income tax: 2(43B) and (44), 118, 125, 125A, 128 to 136 (both inclusive), 138, 140, 144A, 159 to 163 (both inclusive), 166, 167, 170, 171, 173 to 179 (both inclusive), 187, 188, 189, 220 to 227 (both inclusive), 229, 231, 232, 237 to 245 (both inclusive), 254 to 262 (both inclusive) 265, 266, 268, 269, 278B, 278C, 278D, 278E, 281, 281B, 282, 283, 284, 287, 288, 288A, 288B, 289 to 293 (both inclusive), the Second 931 Schedule and the Third Schedule: Provided that references in the said provisions and rules to the "assessee" shall be construed as references to an assessee as defined in this Act." Section 8(1) provides that every "person responsible for collecting" the tax as defined in Section 2(8) shall, before the expiry of four months from the 31st day of March in each year furnish or caused to be furnished to the Income tax Officer, in the prescribed form and varified in the pre scribed manner a return in respect of the immediately pre ceding financial year showing (a) the aggregate of the payments received in respect of "chargeable expenditure"; (b) the amount of the tax collected; (c) the amount of the tax paid to the credit of the Central Government; and (d) such other particulars as may be prescribed. The incidence of the tax is on the persons who incur the "chargeable expenditure" in the class of hotels to which the Act applies. Section 7 enjoins upon the "person responsible for collecting" the duty to collect the taxes and pay the same to the credit of the Central Government. The "room charges" of Rs.400 per day per individual stipulated in Section 3 is the differentium which keeps apart the class of hotels to which the Act applies. Petitioners say that Sec tion 3 merely defines the place, viz., the Hotel where a room carries a charge of Rs.400 per day marked on it and the rest of the incidents and consequences of the provisions of the 'Act ' envisage the levy of a tax on the 'luxuries ' provided at such a place. The legislation, it is urged, is squarely within Entry 62 of List II within the State power. The Act, it is contended, does not impose an "Expenditure Tax" but taxes 'Luxuries '. Even if the legislation has an "expenditure dampening" objective and seeks to inhibit, by creation of disincentives, ostentatious and wasteful expend iture, the classification, it is said, has no rational basis. Persons similarly situated and who incur the same extent and degree of expenditure on the same luxuries are differentiated on the sole basis that in one case the ex penditure is incurred in a Hotel where one of the rooms has a charge of Rs.400 per day per individual marked for it, while in the other though equally wasteful expenditure is incurred in a more luxurious Restaurant, the latter expendi ture is exempt. It is urged that even if more sophisticated and expensive food and drinks and other services, envisaged in clauses (a) to (d) of Section 5, are provided in a hotel or catering establishment which falls out side the class, the expenditure incurred thereon is unaffected by the law. 932 This aspect of under inclusiveness is assailed as violative of Article 14. Petitioners further contend that the several provi sions of the Act which impose certain statutory obligations of an onerous nature, the breach of which are visited with penal consequences, render the law an unreasonable restric tion on the petitioners ' fundamental rights under Article 19(1)(g). The contentions urged in support of the petitions admit of being noticed and formulated in the following terms: (a) The 'Act ', in its true nature and character, is not one imposing an 'Expenditure Tax ', as known to Law, accepted notions of Public Finance, and to legislative practice but is, in pith and substance, either a tax on Luxuries falling within Entry 62 of List II of the Seventh Schedule; or a tax on the consideration paid for the purchase of goods consti tuting an impost of the nature envisaged in entry 54 of List II, and clearly outside the legislative competence of the Union Parliament; (b) that even if the 'Act ' is held to impose a tax which is "sui generis" or a "non discript", tax with respect to which the Union Parliament is competent to make a law under Arti cle 248 and Entry 97 of List I, then, at all events, the 'Act ' is violative of Article 14 in as much as the differen tium on which the Hotels are classified is arbitrary and unintelligible has no rational nexus with the taxing policy under the 'Act '. (c) that the 'Act ' is violative of Petitioners ' fundamental right under Article 19(1)(g) as it imposes unreasonable onerous restrictions on their freedom of busi ness. Re. ' Contention (a): Sri Palkhivala, learned Senior Counsel for the petition ers, contended that the appellation of 'Expenditure Tax ' given to the impost is a misnomer as the concept of "Expend i ture Tax" as known to law and recognised by the theorists of public finance is not a tax on a few stray items of expendi ture but is a term of Art which has acquired a technical import as 'nomen juris ' and that the import envisaged by the Act, in its true nature and character, is no more and no less than a tax on Luxuries under Entry 62 list II within the State 's exclusive power. Learned Counsel urged that the delicate balance in the demarcation in 933 a federal polity of legislative powers between the Union and the States would impose on the Union, the repository of the residuary power, the sensitive task of recognising both the line of demarcation as well as the constitutional mandate and a disciplined reluctance not to cross it. The contention as to lack of legislative competence emphasises two aspects one with a negative implication and the other of a positive import. Negatively, it is urged that the impost is not, and does not satisfy the concept of an "Expenditure tax" which has a technical connotation both in law and in public finance. A tax on certain stray items of expenditure is not, it is contended, a general "expenditure tax". The nomenclature of the levy is really a mere iII fitting legal mask for what is really a tax under Entry 62 list I. The nomenclature of the tax, it is urged, is irrele vant in deciding its true nature and character. It belongs to the rudiments of the subject, says the learned counsel, that a constitutional grantee of a power cannot enlarge its own by choosing for the legislation enacted in exertion of that power, a nomenclature that corresponds to and semanti cally subsumes with the grant. Shri Palkhivala submitted that the true nature and concept of "expenditure tax", as known to the theories of public finance has a specific, well accepted legal connotation and is a tax levied on income or capital spent or "consumed" in distinguishment of income or capital "saved". It is this concept of 'expenditure tax ', as a fiscal tool, which has certain social and economic objec tives informing its policy. The present impost and its incidents, it is urged, have no rational connection with the concept of "expenditure tax" known to and accepted by the principles of public finance and recognised by established Legislative practice. Referring to the economists ' concept of "expenditure tax", learned counsel referred us to the report of the Study Group "On taxation of Expenditure" (Government of India, Ministry of Finance, April 1987) "An expenditure tax is generally taken to mean a direct tax on personal con sumption, i.e., the total annual consumption (minus an exemption, if any) of an individual tax payer or family. This implies that the tax will be payable in the year in which consump tion takes place. One can conceive of the tax base being computed by adding up all items of expenditure, which are by law defined as consumption e x p e nditure, . . . . . . . . . or, alternatively, by summing up all the receipts and substracting therefrom expenses of earning 934 income as well as outflows in the form of savings (going into different types of invest ments, including repayment of past loans). In practice, the latter method would be prefera ble." (Emphasis Supplied) "India has the distinction, shared with Sri Lanka, of having actually experimented with a direct tax on consumption expenditure though the idea itself had caught the imagination of many tax theorists in developed countries, some of whom had developed practical systems for implementation. In both India and Sri Lanka, the tax was introduced on the basis of the recommendations of Prof. Nicholas Kaldor. Prof. Kaldor had been invited to come to India by the Indian Statistical Institute to make an investigation of the Indian tax system in the light of the revenue requirements of the Second Five Year Plan. In his report, he recommended the introduction of a direct tax on personal consumption expenditure as a limb of a comprehensive and self checking system comprising the income tax, (which was already in operation in India), a tax on capital gains (which had been tried for two years in the post war period and then withdrawn), an annual tax on net wealth, a general gift tax and a tax on personal expenditure. He envisaged that these five levies would be assessed simultane ously on the basis of a single comprehensive return, . . " (Emphasis Supplied) "Under the scheme of expenditure taxation suggested by Prof. Kaldor, a taxpayer would not be required to give any detailed account of his outlays on consumption but only a statement of his total outlay as part of a comprehensive tax return showing all his receipts, investments, etc., and all the items for which he claimed exemption . " "In India too, although the expendi ture tax was tried twice and was given up, there has been a revival of interest in making expenditure the base for personal taxation. In particular, it has been maintained that India should seriously consider moving towards a progressive expenditure tax for three impor tant reasons: 935 (a) it will promote savings; (b) it would be, on the whole, more equitable than the present or any practicable form of income tax; and (c) it will significantly reduce the inducement for direct tax evasion." In Musgrave on 'Public Finance ', referring to the concept of Personal Expenditure Tax, it is stated: " . In analogy to the income tax, the taxpayer would determine his total consumption for the year, subtract whatever personal exemptions or deductions were allowed, and apply a progressive rate schedule to the remaining amount of taxable consumption". (Emphasis Supplied) Sri Palkhivala also referred to certain passages of Nicholas Kaldor "On Expenditure Tax" and the same eminent economists report on "Indian Tax Reform", to reinforce the submission that the conceptualisation of 'Expenditure Tax ', as a fiscal tool for economic regulation, has a specific and definite connotation and the "Tax" so conceptualised by experts on public finance is an entirely different idea from the one built into the present legislation. The very concept of 'Expenditure Tax ' envisaged in the impunged legislation, it is urged, is unknown to accepted principles of public fi nance and is the result of a grave misconception as to the essential nature and incidents of what in law and legisla tive practice is recognised as 'Expenditure Tax '. The whole exercise, learned counsel said, is a draft on credibility and that the Finance Minister 's speech on the Bill leaves no doubt that what the Government wanted from the law was really a tax on "Luxuries". The impost, it is urged, is not susceptible of any other legitimate understanding than that it is in substance and effect, a tax on "Luxuries" within the States ' power. Sri Palkhivala emphasised the relevance of what was implicit in the observations of this court in Azam Jha Bahadur vs Expenditure Tax Officer, ; made while upholding the legislative competence of the Union Parliament to enact the Expenditure Tax Act 1957, as referable to the residuary Entry 97 of List I. The implica tion of the observations of this Court at page 479 of the report, according to learned counsel, is that what distin guished 936 an "expenditure tax" from a levy under Entry 62 of List II, was that the scheme of taxation took into account the total ity of expenditure over a unit of time, as distinct from sums laid out on stray purchases of luxuries. Shri Palkhivala, then, submitted that the notion of expenditure tax, as recognised by legislative practice is a relevant factor. In Croft vs Dunphy, Lord Mc Millan held that when power is conferred on the legislature on a particular topic it is important, in determining the scope of the power, to have regard to what, in legislative practice, is ordinarily treated as embraced within the topic and particularly in legislative practice of the State which has conferred the power. In Wallace Brothers & Co. Ltd. vs CIT, Bombay City, [1948] L.R. 75, IA 86 Lord Uthwatt re ferred to the permissibility and, indeed, the importance to refer to the legislative practice as to what is ordinarily treated as within the topic of legislation in understanding the scope of a legislative power. The notion of expendi ture tax in the scheme of the Expenditure Tax Act, 1957, would, it is urged, detract from such legislative practice. The second limb of the argument is that the impost is clearly of the nature of a tax on luxuries within Entry 62 of List I. The simple test, according to the argument, is whether, if a State legislature had enacted a similar law it would not have been held to be within its competence under Entry 62 of List II? The answer would, according to the submission, be in emphatic affirmation, Referring to the concept of a luxury tax, learned counsel referred to the New Encyclopaedia Britanica Vol. 7 which referring to "luxury tax" says: "Luxury tax, excise levy on goods or services considered to be luxuries rather than necessities. Modern examples are taxes on jewellery and perfume. Luxury taxes may be levied with the intent of taxing the rich, as in the case of the late 18th and early 19th century British taxes on carriages and man servants; or they may be imposed in a deliber ate effort to alter consumption patterns, either for moral reasons or because of some national emergency. In modern times, the revenue production of luxury taxes has proba bly overshadowed the moral argument for them. Furthermore, the progressive nature of the early taxes began to be lost as more lower income people 's "luxuries" were taxed in the interest of generating additional revenue; an example is the amusement tax. " 937 On the analogy of the wealth tax envisaged by Entry 86 of List I it was urged that even as the concept of "wealth" for the imposition of a tax thereon is not the individual components of the assets of the assessee but a totality of all assets which the assessee owns, so is the concept of "expenditure" which does not consist of a few stray items of expenditure but a systematised reckoning of expenditure for and during a particular unit of time. It was then urged that recourse to the residuary power under Article 248 read with Entry 97 of List I should be the very last refuge and would be available if, and only if, the other entries in the State and concurrent lists do not cover the topic. Reliance was also placed on the observations of the Federal Court in Subrahmanyan Chettiar vs Muttuswami Goun dan, AIR 1941 FC 47 where it was held: "But resort to that residual power should be the very last refuge. It is only when all the categories in the three Lists are absolutely exhausted that one can think of falling back upon a nondescript." Shri Palkhivala recalled the following words of caution sounded by Chinnappa Reddy, J. in International Tourist Corporation vs State of Haryana; , " . . Before exclusive legisla tive competence can be claimed for Parliament by resort to the residuary power, the legisla tive incompetence of the State legislature must be clearly established. Entry 97 itself is specific that a matter can be brought under that entry only if it is not enumerated in List II or List III and in the case of a tax if it is not mentioned in either of those lists. In a Federal Constitution like ours where there is a division of legislative subjects but the residuary power is vested in Parliament, such residuary power cannot be so expansively interpreted as to whittle down the power of the State legislature. That might affect and jeopardise the very federal princi ple. The federal nature of the constitution demands that an interpretation which would allow the exercise of legislative power by Parliament pursuant to the residuary powers vested in it to trench upon State legislation and which would thereby destroy or belittle state autonomy must be rejected . " 938 Sri Palkhivala also sought to demonstrate how, looked at from another angle, the levy presents an anomalous situation by splitting up a transaction which would otherwise be one of sale of goods and isolating the price of the goods for separate treatment as a distinct subject matter for levy of expenditure tax, thus robbing the State power of its sub stance. Learned Advocate General for the State of Kerala who intervened made submissions which while being substantially on the lines of the petitioners ' contentions, however, sought to qualify that legislative competence to the extent of operation of the 'Act ' in the Union territories could be sustained. Learned Attorney General on the contrary, submitted that the law, in pith and substance, is not one "with re spect to" Luxuries under Entry 62 List I and the tax on expenditure, as the legislature has chosen to conceive it, is referrable to residuary power. Learned Attorney General said that the economists ' concept of such a expenditure tax is at best an idea of the manner of effectuation of fiscal programme and is no limitation on the legislative power. Indeed, if a topic is not shown to fall within the fields of legislation in Lists II or III, no further inquiry is neces sary in order to support the legislative competence of the Union to legislate on the topic. The purpose of incorporat ing a separate List for the Union, as observed in Union of India vs H.S. Dhillon, ; at 671 is: ". . there is some merit and legal effect in having included specific items of List I for when there are three lists it is easier to construe List II in the light of Lists I and II. If there had been no List 1, many items in List 11 would perhaps have been given much wider interpretation than can be given under the present scheme. Be that as it may, we have the three lists and a residuary power and therefore it seems to us that in this context ira Central Act is challenged as being beyond the legislative competence of Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerat ed in List II. If it is not, no further ques tion arises. " (Emphasis Supplied) Learned Attorney General characterised the petitioners ' contention that the impugned impost is really a tax on luxuries or that one 939 aspect of the taxable event in the sale of goods had imper missibly been isolated for the creation of an artificial idea 'expenditure ', suffers from certain basic fallacies. The legislative powers, it is urged, recognise the demarca tion of distinct aspects of the same matter as distinct topics of legislation and that the present challenge to legislative competence overlooks the dichotomy of distinct aspects of the same matter constituting distinct fields of legislation, the line of demarcation, though sometimes thin and subtle, being real. Learned Attorney General further contended that the measure adopted for the levy of the tax does not necessarily determine its essential character and that the object on which the expenditure is laid out might be an item of luxury or it might not be one; or the "expend iture" might constitute the price of the goods but, what is taxed is the "expenditure" aspect which, in itself, is susceptible of recognition, as a distinct topic of legisla tion. We have bestowed our careful consideration to these rival contentions. The principal question is whether the tax envisaged by the impugned law is within the legislative competence of the Union Parliament. In that sense, the constitutionality of the law becomes essentially a question of power which in a federal constitution, unlike a legally omnipotent legislature like the British Parliament, turns upon the construction of the entries in the legislative lists. If a legislature with limited or qualified jurisdic tion transgresses its powers, such transgression may be open, direct and overt, or disguised, indirect and covert. The latter kind of trespass is figuratively referred to as "colourable legislation", connoting that although apparently the legislature purports to act within the limits of its own powers yet, in substance and in reality. it encroaches upon a field prohibited to it, requiring an examination, with some strictness, the substance of the legislation for the purpose of determining what is that the legislature was really doing. Wherever legislative powers are distributed between the Union and the States, situations may arise where the two legislative fields might apparently overlap. It is the duty of the Courts, however difficult it may be, to ascertain to what degree and to what extent, the authority to deal with matters falling within these classes of sub jects exists in each legislature and to define, in the particular case before them, the limits of the respective powers. It could not have been the intention that a conflict should exist; and, in order to prevent such a result the two provisions must be read together, and the language of one interpreted, and, where necessary modified by that of the other. The Judicial Committee in Prafulla Kumar Mukherjee and Ors. vs Bank of Commerce, referred to with approval the 940 following observations of Sir Maurice Gwyer CJ. in Subrah manyan Chettiar 's case: "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observance to a strict ly verbal interpretation would result in a large number of statutes being declared in valid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the im pugned statute is examined to ascertain its 'pith and substance ', or its 'true nature and character, ' for the purpose of determining whether it is legislation with respect to matters in this list or in that. " This necessitates as an "essential of federal Government the role of an impartial body, independent of general and regional Governments", to decide upon the meaning of deci sion of powers. The Court is this body. The position in the present case assumes a slightly different complexion. It is not any part of the petitioners ' case that 'expenditure tax ' is one of the taxes within the States ' power or that it is a forbidden field for the Union Parliament. On the contrary, it is not disputed that a law imposing 'expenditure tax ' is well within the legislative competence of Union Parliament under Article 248 read with Entry 97 of List I. But the specific contention is that the particular impost under the impugned law, having regard to its nature and incidents, is really not an 'expenditure tax at all as it does not accord with the economists ' notion of such a tax. That is one limb of the argument. The other is that the law is, in pith and substance, really one imposing a tax on luxuries or on the price paid for the sale of goods. The crucial questions, therefore, are whether the economists ' concept of such a tax qualifies and conditions the legislative power and, more importantly, whether "ex penditure" laid out on what may be assumed to be "luxuries" or on the purchase of goods admits of being isolated and identified as a distinct aspect susceptible of recognition as a distinct field of tax legislation. In Lefroy 's 'Canada 's Federal System ' the learned author referring to the "aspects of legislation" under Sections 91 and 92 of the 941 Canadian Constitution i.e., British North America Act 1867 observed that "one of the most interesting and important principles which have been evolved by judicial decisions in connection with the distribution of Legislative Power is that subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legisla tive power. Learned author says: ". . that by 'aspect ' must be understood the aspect or point of view of the legislator in legislating the object, purpose, and scope of the legislation that the word is used subjectively of the legislator, rather than objectively of the matter legislated upon." In Union Colliery Co. of British Columbia vs Bryden, See. at 587, Lord Haldane said: "It is remarkable the way this Board has reconciled the provisions of section 91 and section 92, by recognizing that the subjects which fall within section 91 in one aspect, may, under another aspect, fall under section 92." Indeed, the law 'with respect to ' a subject might inci dentally 'affect ' another subject in some way; but that is not the same thing as the law being on the latter subject. There might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects But the fact that there is an overlapping does not detract from the distinctiveness of the aspects. Lord Simonds in Governor General in Council vs Province of Madras, P.C. at 193 in the con text of concepts of Duties of Excise and Tax on Sale of Goods said: " . . The two taxes the one levied on a manufacturer in respect of his goods, the other on a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the excisable article leaves the factory or workshop for the first time on the occasion of its sale . " 15. Referring to the "aspect" doctrine Laskin 's "Canadian Constitutional Law" states: 942 "The 'aspect ' doctrine bears some resemblance to those lust noted but, unlike them, deals not with what the 'mat ter ' is but with what it 'comes within ' . . " (p. 115) " . . it applies where some of the consti tutive elements about whose combination the statute is concerned (that is, they are its 'matter '), are a kind most often met with in connection with one class of subjects and others are of a kind mostly dealt with in connection with another. As in the case of a pocket gadget compactly assembling knife blade, screwdriver, fishscaler, nailfile, etc., a description of it must mention every thing but in characterizing it the particular use proposed to be made of it determines what it is." (p.1 16) " . . I pause to comment on certain correlations of operative incompatibility and the 'aspect ' doctrine. Both grapple with the issues arising from the composite nature of a statute, one as regards the preclusory impact of federal law on provincial measures bearing on constituents of federally regulated con duct, the other to identify what parts of the whole making up a 'matter ' bring it within a class of subjects . . " (p. 117) The distinction between what is "ancil lariness" and what "incidentally affecting" the treatise says: " . There is one big difference though it is little mentioned. Ancillariness is usually associated with an explicit 'statu tory provision of a peripheral nature; talk about 'incidentally affecting ' crops up in connection with the potential of a non differ entiating statute to affect indiscriminately m its application matters assertedly immune from control and others. But it seems immaterial really whether it is its words or its works which draw the flotsam within the statute 's wake." .lmo (p.115) 16, Referring to the flexibility in the modes of effec tuating a tax in view of innate complexities in the fiscal adjustment of diverse 943 economic factors inherent in the formulation of a policy of taxation and the variety of policy options open to the State, J Rauls in "Modern Trends in Analytical and Normative Jurisprudence" (Introduction to Jurisprudence by Lord Lloyd of Hampstead & Freeman, 5th Edn.) observed: " . . In practice, we must usually choose between several unjust, or second best, arrangements; and then we look to nonideal theory to find the least unjust scheme. Some times this scheme will include measures and policies that a perfectly just system would reject. Two wrongs can make a right in the sense that the best available arrangement may contain a balance of imperfections, an adjust ment of compensating injustices. " Adverting to "Expenditure dampening" policies and the choice of measures designed to reduce the aggregate demand for goods and services, the "Dictionary of Economic Terms" by Allan Gilpin says: "Expenditure dampening Policies: Government measures designed to reduce the aggregate demand for goods and services in the communi ty. The measures may consist of raising taxes (q.v.) lowering government expenditure or curtailing hire purchase or other credit facilities. EXPENDITURE SWITCHING POLICIES. Expenditure switching Policies: Government measures designed to influence the pattern of expenditure by the community. For example, the taxing of imported goods may effect a switch of expenditure from imported to homeproduced goods; devaluation of the nation 's currency may have the same effect as imports become more expensive. See EXPENDITURE DSAMPENING POLICIES." Learned Attorney General also referred to the following observations in The British Tax System (by J.A. Kay M.A. King) to indicate that a tax on expenditure need not neces sarily be an expenditure tax in the economists ' reckoning of things: "An annual expenditure tax, which seeks to measure an individual 's spending in each separate year of assessment, poses very serious administrative problems, because 944 it requires that his assets be assessed annu ally . " " . . But there is a much easier way of reaching a more accurate answer. You simply measure how much foreign currency you took with you, add the amount of currency you bought while abroad, and substract what was left when you got back. You measure, not the expenditure itself, but the sources of the expenditure, and can thus achieve a simple and reliable measure on the basis of a small number of recorded (and readily verifiable) transactions. " It is trite that the true nature and character of the legislation must be determined with reference to a question of the power of the legislature. The consequences and effect of the legislation are not the same thing as the legislative subject matter. It is the true nature and character of the legislation and not its ultimate economic results that matters. Indeed, as an instance of different aspects of the same matter, being the topic of legislation under different legislative powers, reference may be made to the annual letting value of a property in the occupation of a person for his own residence being, in one aspect, the measure for levy of property tax under State law and in another aspect constitute the notional or presumed income for purpose of income tax. Petitioners ' reference to legislative practice as determining the scope of the present legislation does not assist them. There are two infirmities in the contention. The first is that the question of legislative practice as to what a particular legislative entry could be held to embrace is inapposite while dealing with a tax which is sui generis or non descript imposed in exercise of the residuary powers so long as such tax is not specifically enumerated in Lists II & III. Secondly, there is no conclusive material indicat ing that the appropriate legislature had limited the notion of a tax of this kind within any confines. It is relevant to recall the words of Lord Uthwatt in Walace Brothers case in ; at 402; "The point of the reference is emphatically not to seek a pattern to which a due exercise of the power must conform. The object is to ascertain the general conception involved in the words in the enabling Act. " But as observed in Navinchandra Mafatlal vs CIT, Bombay City, 945 [1955] 1 SCR 829 the meaning the word "income" is given in the Income tax Act is not determinative of its content as an entry in a legislative list. Das J. observed: " . . It is, therefore, clear that none of the authorities relied on by Mr. Kolah estab lish what may be called a legislative practice indicating the connotation of the term "in come", apart from the Income tax statute. In our view, it will be wrong to interpret the word "income" in entry 54 in the light of any supposed English legislative practice as contended for by Mr. Kolah . . " (p. 835) 17. In Union of India vs H.S. Dhillion, ; at 61 this Court dealt with the scope of the Residuary power under Entry 97 List I. Referring to following observations of Lord Loreburn in AttorneyGeneral for Ontario vs Attorney General, for Canada (See: at 581: "Now, there can be no doubt that under this organic instrument the powers distributed between the Dominion on the one hand and the provinces on the other hand, cover the whole area of self government within the whole area of Canada. It would be subver sive of the entire scheme and policy of the Act to assume that any point of internal selfgovernment was withheld from Canada." (Emphasis Supplied) It was held that the last portion of the above excerpt applied a fortiori to the Constitution of the Sovereign, Democratic Republic. Sikri CJ. proceeded to observe (See: ; at 61): " . If this is the true scope of residu ary powers of Parliament, then we are unable to see why we should not, when dealing with a Central Act, enquire whether it is legislation in respect of any matter in List II for this is the only field regarding which there is a prohibition against Parliament. If a Central Act does not enter or invade these prohibited fields there is no point in trying to decide as to under which entry or entries of List I or List III a Central Act would rightly fit in. " Then, considering the includibility of the value of agricul tural 946 property in the wealth of the assessee under the Wealth Tax Act despite the exclusionary words in Entry 86, List I the learned Chief Justice said: " . . We are definitely of the opinion, as explained a little later, that the scheme of our Constitution and the actual terms of the relevant articles, namely, article 246, article 248 and Entry 97 List I, show that any matter, including tax, which has not been allotted exclusively to the State Legislatures under List II or concurrently with Parliament under List III, falls within List I, including Entry 97 of that list read with article 248. " It was held that the subject did not fall under Entry 49 List II and that despite the exclusion in Entry 86 List I the Union, as the repository of the residuary power, had the competence to legislate as long as the topic was not allot ted to or within the State power. It was further observed: "It seems to us unthinkable that the Constitutionmakers, while creating a sovereign democratic republic, withheld certain matters or taxes beyond the legislative competency of the legislatures in this country either legis lating singly or jointly . . " " . . There is no principle that we know of which debars Parliament from relying on the powers under specified entries 1 to 96, List I, and supplement them with the powers under Entry 97 List I and article 248, and for that matter powers under entries in the Concurrent List." (p. 74) 18. The subject of a tax is different from the measure of the levy. The measure of the tax is not determinative of its essential character or of the competence of the legisla ture. In M/s. Sainik Motors vs State of Rajasthan, 17 the provisions of a State law levying a tax on passengers and goods under Entry 56 of List I were assailed on the ground that the State was, in the guise of taxing passengers and goods, in substance and reality taxing the income of the stage carriage operators or, at any rate, was taxing the "fares and freights", both outside of its powers. It was pointed out that the operators were required to pay the tax calculated at a rate related to the value of the fare and freight. Repelling the contention, Hidayatullah J. speaking for the Court said: 947 " . We do not agree that the Act, in its pith and substance, lays the tax upon income and not upon passengers and goods. Section 3, in terms, speaks of the charge of the tax "in respect of all passengers carried and goods trans ported by motor vehicles", and though the measure of the tax is furnished by the amount of fare and freight charged, it does not cease to be a tax on passengers and goods . . " Indeed, reference may be made to the following statement in Encyclopaedia Britannica (Vol. 14 page 459) on 'Luxury Tax ': "A different approach to luxury taxation, much less frequently found, seeks to single out the luxury component of spending on a given object rather than taxing specified goods and services as luxuries. One example of this is the Massachusetts 5% tax on restaurant meal of $1 or more . " (Emphasis supplied) 19. The submissions of the learned Attorney General that the tax is essentially a tax on expenditure and not on Luxuries or sale of goods falling within the State power, must, in our opinion, be accepted. As contended by the learned Attorney General, the distinct aspect namely, 'the expenditure ' aspect of the transaction falling with the Union power must be distinguished and the legislative compe tence to impose a tax thereon sustained. Contention (a) is, in our opinion, unsubstantial and, accordingly, fails. Re: Contention (b): It is urged that the application of the Act is confined to hotels where the "room charges" for any unit of residen tial accommodation are Rs.400 or more per day per individu al, while expenditure of greater magnitude and quantum incurred in other hotels is not exigible to the tax, either because such room charges are less than Rs.400 or because the establishment which, though providing food and drink and other services envisaged by Section 5, may not provide residential accommodation. This distinction, it is said, is violative of the constitutional pledge of equality. The averments in this behalf in the memorandum of writ petition are these: "There is no basis or intelligible differentia for discriminating between the levy of the tax on expenditure over food or drink provided by a hotel and the food or drink provided by 948 a restaurant or eating house not situated in a hotel (or in a hotel to which the Act does not apply) even though the cost of food or bever age is higher than that on similar items in an applicable Hotel. There is also no intelligi ble differentia for discriminating between levying of tax on expenditure on food and drinks outside the hotel which is provided by the hotel and not levying tax on expenditure on food and drinks incurred outside the hotel but which is not provided by the hotel, even though the latter expenditure may be more greater than the former . " "The arbitrariness and lack of intelligible differentia is even more apparent in respect of clause 5(d) read with Exception (c). To give an example, if a shop or office is owned by the hotel in the hotel, any expenditure incurred in such a shop or office would at tract expenditure tax but if such a shop or office is not owned or managed by the hotel even though situated in the hotel premises, such expenditure in by the hotel would not be liable to the impugned expenditure tax." "By way of illustration it may be pointed out that in the City of Bombay there are numerous restaurants like, Talk of the Town, China Garden, Gazebo and Gaylord which are similarly situated in every way to restau rants located in applicable hotels, from the point of view of their decor, furnishing, the range of the menu, the pricing of the items, the standards of service. The clientele of such restaurants are also as affluent as the class of people who patronise restaurants which are located in applicable hotels. Fur ther more, many of the said independent res taurants are far more luxurious and expensive than restaurants and/or dining rooms attached to applicable hotels in the City of Bombay which have one or more rooms charging a daily tariff of rupees 400 or more per person. " It is now well settled though taxing laws are not out side Article 14, however, having regard to the wide variety of diverse economic criteria that go into the formulation of a fiscal policy legislature enjoys a wide latitude in the matter of selection of persons, subject matter, events, etc., for taxation. The tests of the vice of discrimination in a taxing law are, accordingly, less rigorous. In examin ing the allegations 949 of a hostile, discriminatory treatment what is looked into is not its phraseology, but the real effect of its provi sions. A legislature does not as an old saying goes, have to tax everything in order to be able to tax something. If there is equality and uniformity within each group, the law would not be discriminatory. Decisions of this Court on the matter have permitted the legislatures to exercise an ex tremely wide discretion in classifying items for tax pur poses, so long as it refrains from clear and hostile dis crimination against particular persons or classes. But, with all this latitude certain irreducible desid erata of equality shall govern classifications for differen tial treatment in taxation laws as well. The classification must be rational and based on some qualities and character istics which are to be found in all the persons grouped together and absent in the others left out of the class. But this alone is not sufficient. Differentia must have a ra tional nexus with the object sought to be achieved by the law. The State, in the exercise of its Governmental power, has, of necessity, to make laws operating differently in relation to different groups or class of persons to attain certain ends and must, therefore, possess the power to distinguish and classify persons or things. It is also recognised that no precise or set formulae or doctrinaire tests or precise scientific principles of exclusion or inclusion are to be applied. The test could only be one of palpable arbitrariness applied in the context of the felt needs of the times and societal exigencies informed by experience. Classifications based on differences in the value of articles or the economic superiority of the persons of incidence are well recognised. A reasonable classification is one which includes all who are similarly situated and none who are not. In order to ascertain whether persons are similarly placed, one must look beyond the classification and to the purposes of the law. In Jaipur Hosiery Mills Ltd. vs State of Rajasthan, a notification under the Rajasthan Sales tax Act, 1950, exempting from tax the sale of garments which did not exceed Rs.4 per piece was assailed. This court found the classification permissible. It was held: " . . It has to be borne in mind that in matters of taxation the Legislature possesses the large freedom in the matter of classifica tion. Thus wide discretion can be exercised in selecting persons or objects which will be taxed and the statute is not open to attack on the mere ground that it 950 takes some persons or objects and not others. it is only when within the range of its selec tion the law operates unequally and cannot be justified on the basis of a valid classifica tion that there would be a violation of Arti cle 14. " In Hiralal vs State of UP, ; this Court said: " . it is open to the legislature to define the nature of the goods, the sale or purchase of which should be brought to tax. Legislature was not incompetent to separate the processed or split pulses from the unsplit or unprocessed pulses and treat the two as separate and independent goods." " . . But the legislature has wide powers of classification in the case of taxing stat utes." (p. 510) " . . The classification between the processed or split pulses .and unprocessed or unsplit pulses is a reasonable classifica tion. It is based on the use to which those goods can be put. Hence, in our opinion, the impugned classification is not violative of article 14." (p. 511) In State of Gujarat vs Sri Ambika Mills Ltd., ; Mathew J. said: "Statutes are directed to less than universal situations. Law reflects distinction that exist in fact or at least appear to exist in the judgment of legislations those who have the responsibility for making law fit fact. Legislation is essentially empiric. It ad dresses itself to the more or less crude outside world and not to the neat, logical models of the mind. Classification is inherent in legislation. To recognize marked differ ences that exist in fact is living law; to disregard practical differences and concen trate on some abstract identities is lifeless logic." "In the utilities, tax and economic regulation cases, there are good reasons for judicial self restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The Courts have only the 951 power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the ex perts, and the number of times the judges have been overruled by events self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability." (p. 784) In G.K. Krishnan vs Tamil Nadu, [1975] 2 SCR 715 Mathew J. referred to the following observations of the Supreme Court of U.S.A. in San Antonio School District vs Bodrigues,: "Thus we stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter, drastically the present system or to throw out the property tax altogether in favour of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or pur chases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protec tion Clause." (p. 729) In I.T.O. vs N. Takim Roy Limbe, ; it was held: " . . Given legislative competence, the legislature has ample freedom to select and classify persons, districts, goods, proper ties, incomes and objects which it would tax, and which it would not tax. So long as the classification made within this wide and flexible range by a taxing statute does not transgress the fundamental principles underly ing the doctrine of equality, it is not vul nerable on the ground of discrimination merely because it taxes or exempts from tax some incomes or objects and not others. Nor the mere fact that tax falls more heavily on some in the same category, is by itself a ground to render the law invalid. It is only 952 when within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14." In the present case, the bases of classification cannot be said to be arbitrary or unintelligible nor as being without a rational nexus with the object of the law. A hotel where a unit of residential accommodation is priced at over Rs.400 per day per individual is, in the legislative wisdom, considered a class apart by virtue of the economic superior ity of those who might enjoy its custom, comforts and serv ices. This legislative assumption cannot be condemned as irrational. It is equally well recognised that judicial veto is to be exercised only in cases that leave no room for reasonable doubt. Constitutionally is presumed. These words of James Bradley Thayer may be recalled: "This rule recognizes that, having regard to the great, complex ever unfolding exigencies of government, much which will seem unconsti tutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different inter pretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legisla ture any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional." (Emphasis Supplied) [See: Supreme Court Statecraft; The Rule of Law and Men: Wallace Mendelson: p. 4. ] Thayer also referred to the words of a Chief Justice of Pennsylvania way back in 1811 which are also worth recall ing: "For weighty reasons, it has been assumed as a principle in constitutional construction by the Supreme Court of the United States, by this court, and every other court of reputa tion in the United States, that an Act of the legislature is not be declared void unless the violation of the constitutional is so manifest as to leave no room for reasonable doubt. " In Secretary of Agriculture vs Central Roig Refining Co., ; the Supreme Court of USA said: 953 " . . This court is not a tribunal for relief for crudities and inequities of compli cated experimental economic Legislation. " In M/s Hoechst Pharmaceuticals Ltd. vs State of Bihar, ; it was observed: " . . On questions of economic regulations and related matters, the court must defer to the legislative judgment. When the power to tax exists, the extent of burden is a matter for the discretion of the law makers. It is not the function of the Court to consider the propriety or justness of the tax or enter upon the reality of Legislative policy. If the evident intent and general operations of the tax legislation is to adjust the burden with a fair reasonable degree of equality, the con stitutional requirement is satisfied . . " 22. It is contended that the standards and measures for the computation of the "chargeable expenditure" under the Act is vague and arbitrary. It is pointed out that the expression or "other similar services" in clauses (d) of Section 5 is non specific and vague. This argument does not commend itself to us. It is true that when the statute says "other similar services" it does not contemplate that the "other services" shall, in all respects, be the same. If they were the same then words would, indeed, be unnecessary. These were intended to embrace services like but not iden tical with those described in the preceding words. The content of the expression "other similar services" following, as it does, the preceding expressions "by way of beauty parlour, health club, swimming pool or . " has a definite connotation in the interpretation of such words in such statutory contexts. The matter is one of construction whether any particular service falls within the section and not one of constitutionality. We find contention (b) also not acceptable either. Re: Contention (c): It is urged that the provisions of the Act impose an unreasonable restriction on the petitioners ' fundamental right under Article 19(1)(g). It is averred in the petition: 954 ". The various taxes to which the hotel industry is subject to are mentioned in the earlier part of this Petition. Thus in respect of food and beverages consumed in a hotel, the element of taxes representing sales tax and the present Expenditure Tax works out, for example in Maharashtra, to as much as thirty five per cent. Likewise, in respect of the room tariff, element of tax works out, for example in Gujarat, to as much as thirty seven per cent. The details of the said calculations are given in Exhibit 'D ' annexed to this Petition. The hotel industry today is subject to an extremely heavy dose of taxation in the shape of incometax and even the recent tax on works contracts. The Petitioners say that the tourism, industry is now not in a position to sustain any additional burden and the impugned tax is literally the last straw on the camel 's back . " " It is also contended: " . . Several of the hotels belonging to members of Petitioners Associations have entered into long term contracts for supply of food and beverages and for providing accommo dation. The execution of such contracts would become onerous and even impossible in view of the levy of the present Expenditure Tax. There is no provision in the Act or any separate legislation whereby hotels can pass on such a tax to persons who have contractually agreed to avail of any services at contracted rates . . " 24. A taxing statute is not, per se, a restriction of the freedom under Article 19(1)(g). The policy of a tax, in its effectuation, might, of course, bring in some hardship in some individual cases. But that is inevitable, so long as law represents a process of abstraction from the generality of cases and reflects the highest common factor. Every cause, it is said, has its martyrs. Then again, the mere excessiveness of a tax or even the circumstances that its imposition might tend towards the diminution of the earnings or profits of the persons of incidence does not, per se, and without more, constitute violation of the rights under Article 19(1)(g). Fazal Ali J., though in a different con text, in Sonia Bhatia vs State of U.P. & Ors., at 258 observed: " . . The Act seems to implement one of the most important constitutional directives contained in Part IV of 955 the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr. " Contention (c) is also insubstantial. In the result, for the foregoings reasons, these petitions fail and are dismissed. However, in the circum stances of the case there will be no order as to costs. RANGANATHAN, J. 1. I have perused the judgment of my learned brother Venkatachaliah, J. in this batch of writ petitions as well as in the two connected batches of matters viz. CA Nos. 338 and 339 of 1981 and WP Nos. 254 261 of 1981. I respectfully agree with his conclusions in all these matters but wish to add a few words, primarily in so far as the constitutional validity of the Expenditure Act, 1987 is concerned. As my learned brother has set out, analysed and discussed in detail the provisions of the various statutes, the validity of which is in question, I shall avoid a repe tition of the same and confine myself only to the considera tion of the crucial issues for determination. The contentions of the assessees in the three batches of cases above referred to, prima facie, sought to make out a state of direct collision between a group of State enact ments on the one hand and a couple of Central enactments on the other, which cannot be averted save by declaring one set of the enactments to be invalid. The powerful, if also "diplomatic", endeavour of the learned Attorney General, appearing for the Union of India, was to show that these sets of enactments are not really on a collision course at all but, on the contrary, are proceeding on parallel lines and that each of the sets of legislations is quite safe from attack on the ground of legislative incompetence. Whether this contention is acceptable and both sets of enactments can be saved or whether one of the two has to give way to the other is the question for consideration in these batches of cases. The set of State enactments which blazed the trial (to be followed up by others) and hence are prior inpoint of time, is that comprising of various statutes passed by several States in India. The specific State legislation which are in challenge in the petitions and appeals before us (as indicated in the brackets at the end) are: 956 (a) Gujarat Tax on Luxuries (Hotels and Lodging Houses) Act (No. 24 of) 1977. (C.A. 338,339/1981; W.P. Nos. 7990, 8338, 8339, 9110of 1981) (b) Tamil Nadu Tax on Luxuries in Hotels and Lodging Houses Ordinance, 1980 followed by an act (Act No. 6 of 1981) (WP 162/82) (c) Karnataka Tax on Luxuries (Hotels and Lodging Houses) Act (No. 22 of) 1979. (WP 1271 2/82) (d) West Bengal Entertainments and Luxuries (Hotels and Restaurants) Tax Act (No. 21 of) 1972. (WP 5321/85) The States of Uttar Pradesh, Maharashtra and Kerala have also passed similar enactments, being the: (a) Uttar Pradesh Taxation and Land Revenue Laws Act, (No. 8) of 1975; (b) Maharashtra Tax on Luxuries (Hotels & Lodging Houses) Act (XLI of) 1987; and (c) Kerala Tax on Luxuries in Hotels and Lodging Houses Act (No. 32 of) 1976 repealing Kerala Ordinance No. 5 of 1976. The above statutes have apparently been enacted by the various State Legislatures in exercise of the legisla tive powers conferred on them under article 246(3) of the Constitution, read with Entry 62 of List II in the Seventh Schedule to the Constitution of India, which runs: "62. Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling." (Some aspects thereof are also sought to be related to Entry 54 of List II, but as this stands on the same footing as Entry 62 for the purposes of the present case, no separate reference is made to Entry 54 hereinafter). This is clear because the short title to each of the above 957 enactments describes it as an Act to provide for the "impo sition" or "the levy and collection" of a tax on "luxuries" or "entertainment and luxuries" in or provided in "hotels" or "hotels and restaurants" or "hotels and lodging houses". Although "luxuries and entertainments" may be provided or availed of in various ways and could all be made the subject matter of a tax by virtue of the entry above referred to, these enactments are confined only to one type of such entertainments and luxuries viz. those provided in hotels, restaurants or lodging houses as defined under the relevant enactments. Also, only certain specified classes of enter tainments or luxuries provided in such places are brought to tax. The details of the imposition, levy and collection of the taxes vary with the enactments and need not be repeated here. It is quite clear from the scheme of the legislations that they all fall within the scope of Entry 62 of List II set out earlier. My learned brother has held so and I agree. Indeed, their validity would, perhaps, have gone unchal lenged but for the enactment of Parliament of the Hotel Receipts Tax, 1980, (hereinafter referred to as 'the 1980 Act '). When, in pursuance of the 1980 Act, a tax on some of the receipts of a hotelier was sought to be charged w.e.f. 1st February, 1981, it was but natural for some of the affected hoteliers to rush to Court for relief against this two pronged taxation of their receipts. Writ petitions were filed challenging the competence of both sets of enactments and these have now come up for final hearing. It must, however, be mentioned here that the levy of the Hotel Re ceipts Tax was withdrawn after a year; nevertheless it was in operation for one assessment year and hence the challenge to its validity is not purely academic. The validity of the 1980 Act has been upheld by my learned brother as traceable to Entry 82 of List I in the Seventh Schedule to the Consti tution. Taxes on income other than agricultural income. I respectfully agree. The relief conferred by the withdrawal of the 1980 Act was, however, short lived; it was only a "lull before the storm" which descended on all hoteliers in the form of the Expenditure Tax Act, 1987 (hereinafter referred to as 'the 1987 Act '). Before referring to this enactment, the validity of which has been challenged in writ petition No. 1393 of 1987, it will be convenient to run back on the time machine by a period of three decades. Mr. Nicholas Kaldor, Reader in Economics in the University of Cambridge, was the proponent of a levy styled as "Expenditure Tax". When the Government of India requested him, sometime in the firties, 10 have a look at the system of direct taxation prevailing in this country and make his recommendations for a comprehensive scheme 958 of tax reform, he suggested, inter alia, the levy of an "expenditure tax". His opinion was that such a levy, supple menting an income tax levy at rates lower than those preva lent then, would enable the Government to more effectively harness its resources. In the course of arguments before us, copious references have been made to passages from Nicholas Kaldor 's book ( 'An Expenditure Tax ' published by George Allen & Unwin Ltd. of U.K.) and his 'Survey Report on Indian Tax Reform ' (published by the Government of India) out it will be sufficient to mention here that Prof. Kaldor 's report was implemented by Parliament by enacting the Expend iture Tax Act, 1957 (hereinafter referred to as 'the 1957 Act '). The validity of the above Act was challenged before this Court but unsuccessfully. The decision of this Court is reported as Azarnjah vs E.T.O., ; The nature and scope of the Act have been dealt with in the above decision and it is unnecessary to repeat the same here. The 1957 Act was withdrawn after a few years; to be precise, with effect from assessment year 1965 66. It was given up both because it was found to be too cumbersome and difficult to administer and also because the yield of reve nue therefrom was not substantial due to the limited number of assessees it covered. After it was given up, as already mentioned, the 1980 Act occupied the field for a very short time, the pendency of writ petitions challenging its validi ty having perhaps largely contributed to its withdrawal. After some interval, now, Parliament has come in with the 1987 Act. The ambit and scope of this Act along with, on the one hand, its distinguishing features, as contrasted with the 1957 and 1980 Acts and its similarities, when compared to the State legislations, on the other, have been brought out in the judgments of brother Venkatachaliah J. and do not need repetition here. It is in this background that we have to determine the pith and substance of the 1987 Act and decide whether Parliament had the legislative competence to enact the same or not. The short question that one has to answer in these cases is whether the levies in question by the States and the Union can both stand or whether we have to treat the levies as either tax on 'luxuries ' or as tax on 'income ' or 'expenditure ' and thus uphold one of them but not both. I do not think there can by any doubt at all that, in the context of the social and economic conditions that prevailed in India, it was a luxury for any person to stay in hotels charging high rents and providing various types of facili ties, amenities and conveniences such as telephone, televi sion, air conditioner, etc. The decision of this Court in Abdul Kadir & Sons vs State of Kerala, ; , and 959 in particular, the discussion at pages 699 to 701 places this beyond all doubt. This aspect has also been discussed by Thakkar, J. of the Gujarat High Court (as His Lordship then was) in the judgment under appeal and I am in agreement with his reasonings and conclusion that the Gujarat statute has been validly enacted in exercise of the powers available to the State legislatures under Entry 62 of List I1. This applies equally to the other impugned State enactments as well. 9. It has been argued that the monetary ceilings for the rents have been fixed at such low figures that even tempo rary stay at a not so comfortable hotel or lodging house, when a person is constrained to go outside his hometown, will become a luxury, according to these standards. Indeed some statistics have been supplied by the Gujarat petition ers in support of such a contention. But this, I think, is a matter which must be left to legislative determination. As is well known the legislature has, particularly in a taxing statute, a considerable amount of latitude and there is nO material to hold that, in fixing the standards of indication of luxury the legislature, has not applied its mind. In fact, the figures have been amended from time to time and, one has to presume that the legislature had good reason for fixing these standards. The State legislations are there fore, clearly, within the competence of the State legisla tures and are not liable to be challenged. It seems equally cleat that the pith and legislation of the 1980 Act is, as held by Venkatachaliah, J. traceable to Entry 82 of List I. In interpreting the scope of the legislative entries in the three lists, we have to keep in mind that, while on the one hand, it is desirable that each entry in each of the lists should receive the broadest interpretation, it is equally important, on the other, that the three lists should be read together and harmoniously. Our attention was drawn to some of the entries in List II which show that the legislative power in respect thereof are to be exercised subject to the powers of Parliament envis aged under List I, vide entry Nos. 2, 17, 22, 23, 24, 26, 27, 32, 33 and 50. There is no doubt that these entries have to be read subject to the entries of List I which have been mentioned or the powers of Parliament referred to therein. These, however, are instances of entries which, on their very language, are controlled by entries in List I. But even apart from these instances, the language of clause (1) and (3) of article makes it clear that the power of the State legislature to make laws with respect to any of the matters enumerated in List II is subject to the exclusive power of Parliament to make laws with respect to any of the matters enumerated in List I. Hence, if a matter is 960 covered by an entry in the Union List, no restrictions can be read into the power of Parliament to make laws in regard thereto. This is so far as the general power of legislation is concerned. As pointed out by this Court in Sundararami er 's case; , at pp. 1479 and 1490), the legislative entries are so arranged that the power to enact laws in general and the power to impose taxes are separately dealt with. The subject matters of taxation available to Parliament are. enumerated in entries 82 to 97 of List I, those available to the State legislatures in entries 45 to 63 of List II and those available to both in entry 44 of List III. Under section 246(1) Parliament has exclusive power to make laws with respect to any of the matters and this includes the power to impose taxes enumerated in List I. In this situation and in view of the fact that the 1980 Act is, in pith and substance, a tax on income, its constitutional validity can be in no doubt at all. But can the Union enactment of 1987 also be support ed for the same reasons, as imposing an expenditure tax which, as held in Azam Jha 's case; , , falls within the scope of Entry 97 of List I? Sri Palkiwala says it cannot be. His first contention is that the tax levied by the 1987 Act is not, in fact and in truth, an expenditure tax. He says that it is not sufficient for the legislature to give such a description or label to a tax proposed to be levied by it as does not fall under List II and claim that it should be upheld under Entry 97. The tax sought to be imposed should be one which has real existence and recogni tion in the world of economics. According to him, the eco nomic concept of an expenditure tax is of a tax that is levied not on isolated items of expenditure but one on the totality of the expenditure incurred by an assessable enti ty, just as income tax has gained recognition as a tax on the total income of a taxable entity. That was the concept of the expenditure tax which Nicholas Kaldor had in mind, which was embodied in the 1957 Act and which, hence, was endorsed with approval by this Court. A tax on a few items of expenditure, it is said, is not necessarily the same as an expenditure tax. Referring to the decisions of this Court upholding the levy of Wealth Tax and Gift Tax in as far as it affected agricultural lands: Gift Tax Officer vs D.H. Nazareth etc.; , and Union of India vs H.S. Dhillon; , , it is submitted that the decisions may well have been different had they been concerned with an imposition only on "lands and buildings" by reference to their capital value or only on "agricultural lands" on the occasion of a gift. It is difficult to accept the contention that the tax cannot be considered to be an expenditure tax because it is not on "expenditure" 961 generally but is restricted to specific types of expendi ture. There is, no legal, judicial, economic or other con cept of expenditure tax that would justify any such restric tive meaning. If, conceptually, the expenditure incurred by a person can be a subject matter with reference to which a tax can be levied, there is no reason why such taxation should not be restricted only to certain items or categories of expenditure and why its base should necessarily be so wide as to cover all expenditure incurred by an assessable entity. After all, even under the 1957 Act, all expenditure of all persons was not liable to tax. It substantially covered only certain types of assessees and certain types of expenditure (for several types of expenditure were exempted) and that too only when it exceeded certain limits. The analogy of the Income tax or Wealth Tax or Gift Tax Acts also does not really help us. Though they are enactments which cover a larger area of the subject matter taxed, that was because the legislature found it expedient to do so and not because they were obliged to cover the entire area of income, wealth or gift. An Act imposing a tax, for example, on hotel receipts alone or dividends alone or on capital gains alone will not be any the less a tax on income within the scope of Entry 82 of List I. Likewise even if the legis lature had confined its levy of wealth tax only to certain assets such as lands and buildings or the Gift Tax Act had levied a tax only on gifts of agricultural land, they would not have ceased to fall within the scope of the relevant entries of the Union List, so long as, in pith and sub stance, they are found respectively to be taxes on the capital value of the assets in question or on the transac tion of gift. The Central Excise Act, for example, does not levy excise duty on the manufacture and production of all goods and additional excise duty is levied only in respect of certain goods. So also, in regard to sales tax. It is indeed even possible to say that no tax levy in respect of any subject matter can or does operate universally without any exceptions or exemptions. Selection of objects and goods for taxation is the essence of any tax legislation and any limitation of the nature suggested is an unwarranted cur tailment of this selective power of taxation of Parliament. There is also no established legislative practice which would enable one to limit the concept of an expendi ture tax in the manner suggested. So far as expenditure tax is concerned, the only legislation earlier in force was the 1957 Act which was in force for a period of eight years. Such short lived legislation can hardly furnish the founda tion of an argument to limit the scope of legislative power to the manner in which it was exercised under that enact ment. If, after withdrawing this legislation, Parliament considered that it was not worthwhile or possible to impose a tax on all expenditure and that it would 962 be sufficient, expedient or necessary to impose such a levy only on lavish spending in certain directions, that cannot certainly be precluded on any theory of established legisla tive practice, as was done in State of Madras vs Gannon Dunkerley Co., ; in respect of sales tax. In that case the legislative trend prevalent over decades was relied upon in interpreting the expression "sale of goods" used in the Constitution. But there the Court was concerned with a legal term, "sale", which had acquired a definite connotation in law and in legislative instruments and that analogy cannot be availed of to interpret the scope of Entry 97. On the other hand, even a fairly long established legis lative practice under which income tax levy by the Centre was restricted to items of income stricto sensu (as con trasted with capital gains) was not considered sufficient to place that type of restriction on the interpretation of the expression "taxes on income" used in the Central Legislative List: vide, Navinchanda Mafat Lal vs CIT, [1955] 1 SCR 829. Not only that, the validity of later definitions of "income" under the Income tax Act which have a much wider ambit has been upheld as covered by the above legislative entry. See, in this context, the decisions in Naynit Lal vs AAC, ; , Bhargava vs Union, ; and Bhag wandas vs Union; , There is not even that much of legislative practice, so far as expenditure tax is concerned, which would justify our importing any limitation on the concept of a "tax on expenditure" under Entry 97 of List I. A perusal of the decision of this Court upholding the validity of the 1957 Act Azam Jha 's case; , does not also justify the reading in of any such limita tion. The wider coverage of the tax made it easier for the Court to pin point its subject matter as "expenditure" and to treat it as a matter falling under the residuary entry, but it does not justify the inference sought to be drawn that a tax cannot be said to be a tax with reference to "expenditure" because it does not tax expenditure in general but confines itself to certain types or categories of ex penditure. Once it is granted that the tax need not exhaust the entire universe of the subject matter, the extent of the subject matter that should be covered or selected for impos ing tax should be entirely left to Parliament. subject only to any criteria of discrimination or unreasonableness that may attract the provisions of Part III of the Constitution. The fact that the 1987 Act seeks to tax only the expenditure on items which can be described as luxuries is, however, used by Sri Palkiwala to support his other conten tion (which has really troubled me considerably) that the pith and substance of both sets of legislations is the same, that they both impose a tax only on luxuries or 963 entertainments and that the distinction sought to be made on behalf of the Revenue that one is a tax on 'luxuries ' while the other is a tax on the expenditure incurred by a person on luxuries is only a distinction between "Tweedledum" and "Tweedledee". The object and effect of a tax on luxuries is only to curb expenditure on luxuries and such a tax may be imposed, levied or collected either from the provider of luxuries or the person who enjoys them. The object of an expenditure tax is also similar and that can also be levied either on the person who spends the moneys directly, or through some other person, or even from the person who benefits by the incurring of such expenditure. The provision of a luxury and the payment for it are only obverse sides of the same coin and cannot, from any practical point of view, be considered as two separate and independent subject mat ters of taxation. It is a well settled proposition that the entries in the legislative lists should be given the broad est of connotation and, hence, a tax on luxuries by refer ence to the expenditure thereon will fall clearly under the entry in the State List. The pith and substance of both sets of legislation, therefore, fails only under entry No. 62 of the State List. This being so, Entry 97 of List I will have no applicability at all; that can be called in aid only to cover matters not specifically enumerated or taxes not mentioned in List II or III. It is, therefore, not possible. it is urged, to sustain the validity of the 1987 Act by reference to Entry 97 of List I. 15. The learned Attorney General sought to meet this contention in two ways. He first urged that the pith and substance of the two legislations are different. A tax on 'luxuries ' measured by reference to the amount charged or paid therefore is totally different from a tax to curb opu lent or ostentatious expenditure even though the categories of expenditure brought in for taxation by a particular statute may be restricted. The latter cannot be described as a tax on 'luxuries ' and does not fall within the scope of Entry 62 of the State List and, in the absence of any refer ability to any other entry of List II ', it is safe from attack under Article 248(2) and will also be covered, if need be, by Entry 97 of List I. The second argument is that, after the decision in Azatn Jha 's case; , holding that a "tax on expenditure" will be legislation covered by Entry 97 in List I, the constitutional position is the same as if, before item 97, a specific entry had been inserted in List I (say, Entry No. 96A) which reads "Taxes on expenditure". The result, he says, is that the Central legislation will be squarely covered by an entry in List I and so we need not embark on any investigation as to whether it falls or does not fall under any entry in List II or List III. 964 16. It seems to me that there is a fallacy in the second line of argument addressed by the learned Attorney General. I do not think that the legislative lists can be interpret ed, as suggested by him, on the assumption that there is a deemed entry, "Taxes on Expenditure". added to List I as a result of the decision in Azam Jha 's case ; One cannot add entries to the legislative lists on the basis of decisions of this Court. In Azam Jha 's case, the pith and substance of the Act considered did not fall under any of the entries in List II or III. That being so, this Court upheld it by reference to Entry No. 97 describing the tax, having regard to its pith and substance, as a tax on expend iture. Here, however, we have a legislation which covers only certain types of expenditure and the contention of the petitioners is that ,these are all items of expenditure pertaining to luxuries. The decision in Azam Jha 's case cannot help us to determine whether the legislation before us should be construed as imposing a tax on expenditure or one on luxuries. If, in spite of its dealing with only certain types of expenditure relatable to luxuries, it can be said to be, in pith and substance, not a tax on luxuries, then we may hold that parliament can legislate with refer ence to it and, for purposes of convenience, take advantage of its description as a tax on expenditure to rest it on Entry 97 of List I. In other words, Entry 97 of List I cannot come to our rescue unless we are in a position to say that the substance of the Central legislation in question is not a tax on luxuries, entertainments or amusements. This takes us to the first part of the argument of the learned Attorney General. Is there a tenable and true distinction between the tax on expenditure levied by the Act and a tax on luxuries? Are Parliament and the State Legislatures dealing with the same 'matter ' and taxing one and the same thing, though describing it differently or are they taxing two different matters or things? Sri Palkiwala says that the subject matter of taxation is 'luxury ' and that it is meaningless to consider the expenditure incurred on it as a separate and distinct subject matter. The acceptance of such an argument, he says, will lead to double taxation in respect of almost every matter on earth. For instance, A may be taxed on the salary or interest or dividend paid to him by B as his income and, at the same time, B can be asked to pay a tax on the expenditure incurred by him by way of such salary, interest or dividend payment. A can be asked to pay a wealth tax on the capital value of the assets acquired by him and also asked to pay an expenditure tax on the money spent on such acquisition. A can be asked to pay a sales tax on the goods sold by him to B and also asked to pay or collect a tax on the expenditure incurred by B to purchase the same. 965 Such instances, he says, can be multiplied and will reduce the argument to an absurdity. The Attorney General, on the other hand, submits that the question whether both legislation relate to the same matter does not bring out correctly the controversy in issue. He says that if the expression "matter", in this context, is understood in its widest sense. it will create chaos in the matter of interpretation of the lists. Accord ing to him, for applying the doctrine of pith and substance we have to understand the expression 'matter ' not in a 'gross ', but in a 'rare ' sense. He develops this contention by invoking, to his aid, what may be called the 'aspect ' rule as explained in certain text books and judicial deci sions. A.H.P. Lefroy in his 'Canadian Constitution ' observes, at p. 98: "Sec. Aspect of legislation: Subjects which in one aspect and one purpose fall within section 92 of the Federation Act and so are proper for provincial legislation may. in another aspect and for another purpose fall within section 97 and so be proper for Dominion legislation. And as the cases which illustrate the principle show, by 'aspect ' here must be understood the aspect or point of view of the legislator in legislating, the object, purpose and scope of the legislation. The word is used subjectively of the legislator, rather than objectively of the matter legislated upon." To similar effect is the passage from Laskin 's "Canadian Constitutional Law" extracted in the judgment of Venkatacha liah, J. the Federal Court in the C.P. & Berar Act case also touches upon the 'aspect ' theory at p. 49: "Here are two separate enactments, each in one aspect conferring the power to impose a tax upon goods; and it would accord with sound principles of construction to take the more general power, that which extends to the whole of India as subject to an exception created by the particular power, that which extends to the Province only." (emphasis added) A similar reference to the 'aspect ' of legislation can be seen in Kerala State Electricity Board vs Indian Aluminium Co., at p. 573 4. 966 "The argument of the learned Solicitor General appearing on behalf of the Kerala Electricity Board in support of his submission that the legislation falls under Entries 26 and 27 of List II may be summarised as follows: Those entries do not enable the State Legislatures to legislate with regard to all conceivable goods like arms, ammunition, atomic minerals etc. as was argued by Mr. Sen. A legislature while legislating with regard to matters within its competence should be deed to know its limits and its legislative authority and should not be deemed to be legislating beyond its jurisdiction. One thing that has always got to be kept clear in one 's mind is that there may be more than one aspect with regard to a particular subject matter". (emphasis added) Relying on this principle, backed by these observations, the learned Attorney General submits that, properly understood, the pith and substance of the 1987 Act is 'expenditure ', not 'luxuries '. At first blush, the argument of the learned Attorney General may sound a little subtle and somewhat artificial but, on some reflection, legislative competence will indeed be seen to vary with different aspects of a subject matter as understood in a wide sense. This can be seen from some of the decided cases. The first triumvirate of cases that arose in India under the Government of India Act, viz. In re Central provinces & Berar Act XIV of 1953, ; Province of Madras vs Boddu Paidanna & Sons, and G.G. in Council vs Province of Madras, , were concerned with the question whether the impugned tax was one on the sale of goods or an excise duty. Interpreting the word 'subject matter ' in a broad sense it could perhaps be said that both were taxes with respect to goods. But this concept alone was not sufficient to dispose of the case because the relevant legislative entries did not talk of taxes with respect to goods but referred to taxes in respect of two different activities referable to goods (conveniently described as the 'taxable event '), one the manufacture and production of goods and the other with sale thereof. In the light of these legislative entries the two different activi ties could properly regarded as two different matters for taxation and the relevant legislation was held to be one concerned with 'sale ' and not with 'manufacture '. In other words, there could be two enactments "each in one aspect conferring the power to impose a tax upon goods". The legis lation was held not to be vitiated merely because there was an element of overlapping in that both excise duty and sales tax became 967 leviable on the same assessee in respect of the same goods and by reference to the same sale price when the first sale after manufacture occurs, one by reference to the 'manufac ture ' aspect and the other by reference to the 'sales ' aspect. This bifurcation of the two different aspects per taining to goods was justified by the language of the legis lative entries themselves which referred separately to the different sets of activities and put them down in different legislative lists. Again, on the same principle, the manu facture of electricity may attract excise duty at the point of its captive consumption (under Entry 84 of List I) and also a tax on the consumption or sale of electricity (refer rable to Entry 53 of List II). The power to levy taxes with respect to 'property ' has created similar problems. All States (or corporations and municipalities therein) levy a property tax on the owner or occupier which is almost universally measured by refer ence to its annual value (viz. the rent it would fetch if let from year to year). The Income tax Act also charges a tax on the same basis. In other words, in a realistic and practical sense, the tax was levied by both legislatures on the same amount and with reference to the same matter. But both levies have been upheld under the 1935 Act, the former as a 'tax on lands and buildings, hearths and windows ' (Entry 42 of List II) and the latter as a tax on income (under Entry 84 of List I.) Ralla Ram pointed out that they were different types of levies one on the land and buildings (generally, but not necessarily, measurable by reference to the income derived or capable of being derived) and the other on the income (actually or notionally) derived from it. The pith and substance of the former, it was said, was not 'income ' (from the property) though the tax was levied on the basis thereof. Expressed differently, it could be said that, though both were taxes with respect to proper ty, they touched different aspects of the above subject matter; the first was a tax on the aspect of ownership or occupation of property; the second on the aspect of income from property. The decision of this Court in Bhagwan Dass Jain vs Union, ; is also to the same effect. The Hingir Rampur Coal Co. case ; was concerned with the validity of an Orissa Act which sought to levy a cess not exceeding 5% of the valuation of the coal stacked at pit 's mouth. The question was whether this was in pith and substance a duty of excise (Entry 84 of List I) or a fee to regulate and control the coal mining industry (Entry 66 and 23 of List II). Here again though the method adopted for recovering the impost was the same as that of an 968 excise duty, the validity of the tax was upheld as it relat ed to the aspect of control over the industry rather than to the aspect of an impost on production of coal. Sainik Motors case ; furnishes an illustration which comes nearer to the question at issue before us. In that case a Rajasthan Act purported to levy a tax on passengers and goods measuring it by reference to the fares and freights charged by operators for carriage of such passengers or goods. If it were to be treated as a tax on 'fares and freights ' it would be a tax on income which the State legislature could not levy. But, if treated as a tax on passengers and goods carried by road it was valid under Entry 56 of List II. The validity of the Act was upheld on the latter ground, the court pointing out that the tax was on goods and passengers though measured by reference to fares and freights. This dichotomy could perhaps also be justified on the basis of the language of Entry 89 of List I. That entry makes a distinction between the two types of imposts and illustrates that two different aspects of the same matter viz. taxes in respect of vehicles carrying passengers or goods can form separate matters for taxation. In the light of the above entries and decisions, I think that the learned Attorney General is right in urging that, merely because the 1987 Act as well as the State Acts levy taxes which have ultimate impact on persons who enjoy certain luxuries, the pith and substance of both cannot be considered to be the same. The object of a tax on luxury is to impose a tax on the enjoyment of certain types of bene fits, facilities and advantages on which the legislature wishes to impose a curb. The idea is to encourage society to cater better to the needs of those who cannot afford them. For instance, a luxury tax may, to cite a catchy example, encourage construction of "janata" hotels rather than five star hotels. Such a tax may be on the person offering the luxury or the person enjoying it. It may be levied on the basis of the amount received for providing, or the amount paid for or expended for enjoying, the luxury. Conceivably, it could be on different bases altogether. The object of an expenditure tax and, that, conceptually, there can be an expenditure tax is borne out by Azam Jha 's case (supra) is to discourage expenditure which the legislature considers lavish or ostentatious. The object of the first would be to discourage certain types of living or enjoyment while that of the second would be to discourage people from incurring expenditure in 'unproductive or undesirable channels. If a general Expenditure Tax Act, like that of 1957, had been enacted, no challenge to its validity could have been 969 raised because it incidentally levied the tax on expenditure incurred on luxuries. The fact that there will be some overlapping then or that here there is a good deal of such overlapping, because the States have chosen to tax only some types of luxuries and the Centre to tax, atleast for the time being, only expenditure which results in such luxuries, should not be allowed to draw a curtain over the basic difference between the two categories of imposts. For in stance, if the conflict alleged had been between the present State Acts and an Act of Parliament taxing expenditure incurred in the construction of theatres or the maintenance of race horse establishments or the like, there would have been no overlapping at all and the pith and substance of the central tax could well be described as "expenditure" and not "luxuries". This distinction is not obliterated merely because of the circumstance that both legislatures have chosen to attack the same area of vulnerability, one with a view to keep a check on 'luxuries ' and the other with a view to curb undesirable 'expenditure:. For these reasons, I agree with my learned brother Venkatachaliah, J. that the validity of the three impugned enactments has to be upheld and these writ petitions and appeals dismissed. N.P.V. Petitions dismissed.

Elections to the Madhya Pradesh Vidhan Sabha were held in the months of February/March 1985. The appellant and Respondent No. 1 were the contesting candidates from Niwadi Legislative Assembly constituency No. 34. Respondent No. 1 having secured majority of votes, was declared elected on 6.3.1985 to the Madhya Pradesh Vidhan Sabha. The appellant challenged the election of the respondent No. 1 in the High Court of Madhya Pradesh Jabalpur alleging that the first respondent was guilty of adopting corrupt practices within the meaning of sub sections (2), (3) and (3A) of Section 123 of the Representation of Peoples Act, 1951. Respondent No. 1 denied the allegations made in the election petition. The High Court dismissed the Election Petition holding that the appellant had not substantiated all the charges levered by him against respondent No. 1. Hence this appeal by the appellant. Before this Court the appellant pressed only issues 3, 4 and 5 and gave up the rest. Dismissing the appeal, this Court, HELD: An election petition where corrupt practices are imputed must be regarding as proceedings of a quasi criminal nature wherein strict proof is necessary. Since, a charge of corrupt practice, the consequence of which is not only to render the election of the returned candidate void, but in some cases to impose on him a disqualification it must be proved on appraisal of the evidence adduced by both the parties particularly by the election petitioner who assails the election of a returned candidate. [591B C] The element of bargaining is completely absent in the present case. Needless to say that it is necessary for the purpose of proving the corrupt practice of bribery to estab lish that there was an element of bargaining. [592C] 582 Dhartipakar Madan Lal Agarwal vs Rajiv Gandhi, [1987] Supp. SCC 93; Kona Prabhakara Rao vs M. Seshagiri Rao & Anr., ; Manphul Singh vs Surinder Singh, [1974] 1 SCR 52; Jamuna Prasad Mukheriya & Ors. vs Lachi Ram & Ors., ; ; Rahim Khan vs Khurshid Ahmed & Ors., ; ; Ram Sharan Yadav vs Thakur Muneshwar Nath Singh & Ors., ; ; Rahim Khan vs Khurshid Ahmed & Ors.; , ; Lakshmi Raman Acharya vs Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji Prasad Singh vs Ram Bilas Jha & Ors., ; ; Mohan Singh vs Bhanwar Lal & Ors., ; ; Harjit Singh Mann vs section Umraon Singh & Ors., ; ; lqbal Singh vs section Gurdas Singh & Ors., ; ; Lalroukung vs Haokholal Thangam & Anr., ELR Vol , referred to.

ition Nos. 221 & 1194 of 1979. Under article 32 of the Constitution of India. (In WP. 221/79): Mrs. Shyamla Pappu and A. Minocha for the Petitioner. U.R. Lalit, B.P. Maheswari, Suresh Sethi and Miss Asha Rani Jain, for the Respondents Nos. 1 2. R.P. Sharma for the Respondents 9, 13 and 28. G.L. Sanghi, Miss Kamini Jaiswal and Miss Nishi Puri for Mrs Urmila Kapur for the Respondents Nos. 3,4,6,10,12,13,20,38,44 and 45. (In WP. No. 1194/79): V.M. Tarkunde, Miss Kamini Jaiswal and Miss Nishi Puri for the Petitioners 1 to 10. G.L. Sanghi, Miss Kamini Jaiswal and Miss Nishi Puri for the Petitioners 11 21. U.R. Lalit, B.P. Maheshwari and Suresh Sethi for Respondents 1 and 2. S.C. Gupta and Ramesh Chand for Respondents Nos. 13,25 and 27. The Judgment of the Court was delivered by VARADARAJAN, J. The petitioners in these two Writ Petitions, filed under Article 32 of the Constitution, are Junior Engineers of the first respondent, Municipal Corporation of Delhi. W.P: No. 221 of 1979 has been filed by Diploma holders amongst the Junior 377 Engineers for the issue of Writ of mandamus or other appropriate writ to: (1) Restrain respondent 1 from recruiting Assistant Engineers directly and filling up the posts of Assistant Engineers; (2) Direct respondent 1 to give effect to the recommendations of the Third Pay Commission regarding the rules and policy of promotion etc; (3) Quash the seniority list (Annexure G) prepared by respondent 1; (4) Direct respondent 1 to reckon the seniority of the petitioners with their length of service; and (5) Direct respondent 1 not to affect in any manner all those holding adhoc charge and current duty charge. W.P. No. 1194 of 1979 has been filed by Graduate Junior Engineers as well as Graduate Junior Engineers selected for appointment directly as Assistant Engineers for the issue of a writ of mandamus, certiorari or any other appropriate writ to: (1) Direct respondent 1 to fill up eight posts of Assistant Engineers amongst those in the Select Panel; (2) Quash Office Order dated 10.4.1978 (Annexure I) entrusting Junior Engineers with current duty charge of the posts of Assistant Engineers and the Office Order dated 21.6.1979 (Annexure M) promoting two Junior Engineers as Assistant Engineers on current duty charge on their own pay scale; (3) Direct respondent 1 to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners who are Graduate Junior Engineers; (4) Declare the petitioners Graduate Junior Engineers as a separate category and give them equal quota 378 under the departmental promotee quota in the posts of Assistant Engineers; (5) Restrain respondent 1 from giving adhoc promotions to current duty charge holders amongst Junior Engineers; (6) Declare that the petitioners Graduate Junior Engineers in the service of respondent 1 are entitled to be put on par with their counter parts in other government departments; (7) Direct respondent 1 to grant revised pay scales of Rs. 550 900 to the petitioners and other Graduate Junior Engineers as in the case of Graduate Engineers in Class III service in other government departments with effect from the date it is made applicable in the Central Public Works Department in view of the decision in Ram Kumar and Ors. vs Union of India; and (8) Direct respondent 1 to revise special pay from Rs. 40 to Rs. 75 per mensem to the petitioners and other Graduate Junior Engineers entitled thereto from 1.1.1979. The case of the petitioners in W.P. 221 of 1979 (Diploma holders Junior Engineers) is that they are holding the posts of Junior Engineers in the service of respondent 1 for 16 to 18 years having joined service as Junior Engineers during 1967 to 1970 while respondents 3 to 46 are those who have been directly recruited as Assistant Engineers during 1974 78 in contravention of the declared policy of the Government barring direct recruitment. The next promotional posts to the petitioners are Assistant Engineers. The first respondent has been resorting to direct recruitment to the posts of Assistant Engineers to the extent of 50 per cent resulting in stagnation of the petitioners in the grade of Junior Engineers. It has been following the pattern of functioning current in the Central Public Works Department, hereinafter referred to as 'CPWD ' in all matters of recruitment, promotion and other conditions of service. The CPWD had decided to suspend direct recruitment to the Central Engineering Service because no promotional chances were available to the Central Engineering/Electrical Engineering Service (Class II). That decision. 379 taken in August 1975 became effective from 1.4.1972 (Annexure 'B '). The first respondent has taken a decision by Resolutions Nos. 416 and 78 dated 27.7.1970 and 21.2.1971 to the effect that all fundamental rules and supplementary rules including amendments and orders issued by the Central Government shall be treated as rules etc. of the first respondent Corporation. Similarly, the Central Services Conduct Rules as applicable to Central Government and the general fundamental rules including amendments and orders issued by the Central Government have been made applicable to the first respondent Corporation. As soon as the petitioners learnt that there is suspension of direct recruitment in the CPWD the petitioners invited the attention of the first respondent to that fact in November 1975 and requested for banning of direct recruitment of Assistant Engineers and were given an assurance that their rights will not be over looked. The petitioners made several representations including the last one dated 24.1:1979 (Annexure 'E '). The then Commissioner of the first respondent assured the petitioners orally that the practice adopted by the CPWD will be followed by the first respondent, but he however, wrote to the petitioners saying that the matter was under consideration. The petitioners met the Deputy Commissioner of the first respondent on 23.1.1979 and protested against the advertisement made in the Press to fill up eight posts of Assistant Engineers by direct recruitment, and as he accepted the suggestion of the petitioners they expected that the advertisement will be withdrawn. Respondent 1 is, however, bent upon going ahead with the direct recruitment though more than 275 out of 400 Junior Engineers aspiring for promotion as Asst. Engineers are eligible for consideration. The Central Government has power of general superintendence over the first respondent and it has informed the first respondent by letter dated 23.2.1976 (Annexure 'F ') that consequent on the recommendation of the Third Pay Commission the first respondent may ban direct recruitment as has been done by the CPWD. The Director in the Office of the Director General of Works, Government of India informed the Assistant Commissioner (Establishment) of the first respondent by letter dated 16.2.1978 (Annexure 'F1 ') that direct recruitment to CES/CEES Group B was still under suspension. Though no specific reference has been made in the Third Pay Commission 's Report to Junior Engineers of the first respondent Corporation, its recommendations have been followed by the first respondent, and its employees are treated in the same manner as employees of the Central Government are treated by the Government, their pay scales and service conditions being the same. The proposed direct recruitment 380 to eight posts of Assistant Engineers is detrimental to the interests of the petitioners in the light of the Central Government 's memorandum of the year 1959 relating to seniority. The first respondent should, therefore, be directed to follow the same policy as is being followed by the Engineering Department of the Central Government. The details of the appointments of respondents 3 to 46 who have been directly recruited as Assistant Engineers during the years 1974 78, given in Annexure A 1, would show that the direct recruits of the year 1974 rank higher and above the petitioners who are recruited much earlier. Of the 400 Junior Engineers in the service of respondent 1, 36 are holding current duty charge as Assistant Engineers from 1978 and several others are holding charge as Assistant Engineers on adhoc basis. Those Junior Engineers who are officiating as Assistant Engineers ought to be treated as regularly appointed Assistant Engineers. However, their names are not shown in the seniority list (Annexure 'G ' circulated on 2.9.1978. That seniority list has been prepared on the basis of the memorandum issued by the Central Government in December 1979 which is similar to the seniority rules which has been struck down by this Court in the case of S.B. Patwardhan and Ors. etc. vs State of Mahrashtra & Ors.(1) Respondent 1 is drawing the seniority list without any authority of law by putting one promotee and one direct recruit thereafter and so on in accordance with the instructions of the Central Government, according to which those confirmed earlier would rank senior to those confirmed later. The conferment of artificial seniority by respondent 1 deprives the petitioners of their actual seniority and is destructive of the fundamental right to equality. The first respondent Corporation has filed counter affidavit contending that the Corporation has to be guided by its own rules relating to its Engineering Service though the conditions of service under it could not be less attractive than those prevailing in the CPWD in order that it may attract proper engineering talents. All appointments in the Corporation carrying a minimum salary of less than Rs. 700 per mensem could be made by the Commissioner of the Corporation since 10.1.1975 in accordance with the recruitment rules which have been framed in consultation with the Union Public Service Commission though prior to that date consultation with Union Public Service Commission was essential in the matter of 381 appointment to posts carrying a minimum salary of Rs. 350 and above per mensem. After from Executive Engineers and Superintending Engineers, the Engineering Service (Civil) in the first respondent Corporation consists of: (1) 450 Junior Engineers in the pay scale of Rs. 425 700, of which 80 per cent is filled by direct recruitment with the minimum qualification of Diploma in Civil Engineering and 20 percent is filled by promotion from amongst Works Assistants already in the service of the Corporation with Diploma in Civil Engineering and minimum experience of two years; (2) 13 Selection Grade Junior Engineers in the pay scale of Rs. 550 900 to be filled by promotion of Junior Engineers on completion of 12 years of service on the basis of seniority and (3) 99 Assistant Engineers in the pay scale of Rs. 650 1200, of which 50 per cent is to be filled by promotion and 50 per cent by direct recruitment. A Degree in Civil Engineering and two years of professional experience are essential for direct recruits while for promotees from the cadre of Junior Engineers a minimum experience of three years of service for Degree holders and five years of service for Diploma holders in the grade of Junior Engineers are essential. Higher posts of Executive Engineers and Superintending Engineers were primarily filled up by promotion of Assistant Engineers and Executive Engineers respectively. These higher posts require better qualifications and experience. For that purpose 50 per cent of posts of Assistant Engineers are reserved for direct recruitment for which a Degree in Civil Engineering and two years of professional experience are essential qualifications. All posts to be filled by direct recruitment have to be advertised and the candidates have to be called for interview and the selection made has to be approved by the Corporation. Even for promotion, a Departmental Promotion Committee with a member of the Union Public Service Commission has to be constituted and a list of eligible candidates has to be prepared and they have to be screened before the selection is made. All this takes time and the work of the Corporation cannot remain unattended in the meanwhile. Therefore, senior personnel from the immediate lower category of officers are drafted to the vacant posts on adhoc basis with pay and other emoluments due to the posts held under current duty charge, but without any right to that post which has to be filled by either promotion or direct recruitment as per the rules. The recruitment to higher grades of Executive Engineers and Superintending Engineers being primarily by promotion from Assistant Engineers and Executive Engineers respectively, the only avenue 382 to have engineers with better qualifications is by direct recruitment of Assistant Engineers to the extent of 50 per cent. If that avenue of direct recruitment is closed, there will be no source from which better qualified Engineers with higher Degree qualifications will become available. The Corporation considered the question of suspending direct recruitment of Assistant Engineers on several occasions, but it came to the conclusion that it is neither feasible nor desirable to do so in the interests of the Engineering Department. The Writ Petition has not disclosed any violation of any right much less a fundamental right of the petitioners. The petitioners have no right to force the first respondent Corporation, a statutory body, to exercise its discretion in particular manner which is against the rules. The Municipal Corporation, Delhi is a statutory authority, which is no doubt controlled by the Central Government to the extent mentioned in section 487 of the Delhi Municipal Corporation Act, 1957. The Recruitment Regulations for the posts of Assistant Engineers(Civil) were notified in the Official Gazette on 27.6.1970 (Annexure 'R1 '). They provide for recruitment of Assistant Engineers to the extent of 50 per cent by promotion of Junior Engineers and to the extent of 50 per cent by direct recruitment. The CPWD had decided to suspend direct recruitment to the Central Engineering Service Class II for seven years from 1972. The first respondent has resolved by Resolution No. 50 dated 20.7.1964 to adopt the CPWD patten of work with regard to execution of works alone and not with regard to the mode of recruitment and other service matters. The Central Government rules are made applicable to the employees of respondent 1 only on their adoption and approval by the Corporation; otherwise its employees are governed by the rules and regulations framed by the Corporation itself under section 98 of the Delhi Municipal Corporation Act, 1957. The representations received from time to time for suspension of direct recruitment of Assistant Engineers were duly considered but it was found that there is no justification to comply with the request, and a decision in that regard was taken by the Council of the Corporation on 19.4.1978 (Annexure 'R2 '). Out of 401 Junior Engineers, one is unqualified, 343 are Diploma holders and only 57 are Graduates in Civil Engineering. The decision to fill up eight posts of Assistant Engineers by direct recruit was taken in view of the short fall in the direct recruitment quota compared to the promotion quota in accordance with Recruitment Regulations which provide for filling up 50 per 383 cent by promotion and 50 per cent by direct recruitment of Assistant Engineers though sufficient number of Junior Engineers amongst Diploma holders had become eligible for the posts of Assistant Engineers. The practice of suspending direct recruitment followed by other departments of the Central Government cannot, therefore, be followed by respondent 1. Section 47 of the Delhi Municipal Corporation Act provides for directions being given by the Central Government. But the Central Government 's letter dated 23.2.1976 to the effect that consequent on the recommendations of the Third Pay Commission, respondent 1 may ban direct recruitment as has been done by the CPWD was not written in accordance with power conferred by Section 47 of the Delhi Municipal Corporation Act and it cannot, therefore, be taken as a directive from the Central Government. The relative seniority of direct recruits and promotees has been determined in accordance with the instructions contained in the Ministry of Home Affairs ' Office Memorandum No. 9/11/55 RPS dated 22.12.1959. Out of 401 Junior Engineers, 36 persons are holding the posts of Assistant Engineers on adhoc basis in the Junior Engineer 's pay scale and they are liable to be reverted as Junior Engineers as and when the posts are filled up on a regular basis in accordance with the Recruitment Regulations. The officers appointed on adhoc basis and current charge basis cannot be treated as regular appointees in the absence of appointments in accordance with the Recruitment Regulations, and, therefore, their names have been rightly not included in the seniority list. The persons confirmed earlier are ranked as seniors to persons who are officiating in the grade in accordance with para 3 of the Home Ministry 's Office Memorandum dated 22.12.1959 and there is no infringement of any fundamental right of the petitioners. Respondents 3 to 10 and 12 to 15 have filed counter affidavit contending that prayers Nos. 1, 2 and 4 in W.P. No. 221 of 1979 are in direct violation of the Recruitment Regulations relating to Assistant Engineers. Respondents 3 to 7 appeared before the Union Public Service Commission and were duly selected as Assistant Engineers on 2.1.1974 as mentioned in the Office order dated 4.6.1975 of the Assistant Commissioner (Establishment) of the first respondent (Annexure 'RA 1 '). Respondents 8 to 18 of whom respondent 11 had died a few years ago also were appointed as Assistant Engineers with effect from 2.1.1974 in the direct recruitment quota. Respondents 19 to 46 also were appointed as Assistant Engineers on various 384 dates after 2.1.1974 in the direct recruitment quota. Therefore, it is not open to the petitioners to question the seniority of respondents 3 to 46 fixed long ago in according with statutory rules. Respondents 3 to 10 and 12 to 17 are working as Executive Engineers on adhoc basis for over four years. The promotional policy of respondent 1 is in accordance with the statutory rules approved in 1970 in consultation with the Union Public Service Commission and are neither arbitrary nor without authority of law. There has been no ban on direct recruitment to 50 per cent of the posts of Assistant Engineers as per the Recruitment Regulations. Respondents 3 to 46 are Graduates in Civil Engineering and more qualified than the petitioners who are only Diploma holders. The petitioners are eligible to promotion as Assistant Engineers in the 50 per cent promotion quota. The first respondent is not following the pattern of the current functioning of the CPWD in the matter of recruitment and other service conditions but has its own Recruitment Regulations which have been approved by the Union Public Service Commission and duly notified on 27.6.1970. The CPWD has suspended direct recruitment of Assistant Engineers in Class II temporarily for seven years from 1.4.1972. Direct recruitment of Assistant Engineers is resorted to by respondent 1 for having highly qualified and talented Engineers and maintaining standards and efficiency. The petitioners cannot have any grievance against direct recruits of 1974 ranking higher in seniority in accordance with Recruitment Regulations. The final seniority list of Assistant Engineers circulated on 30.1.1975 (Annexure 'RA III ') was finalised after considering the objections and is in accordance with the Home Affairs Ministry 's Office Memorandum dated 22.12.1959 which lays down that the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promoters which shall be based on the quota reserved in the Recruitment Regulations. It cannot be challenged after a long period of five years. The petitioners are, therefore, not entitled to any relief. The petitioners in W.P. No. 1194 of 1979 are Graduate Junior Engineers. Their case is that the first respondent has been denying for the last six or seven years to them and other Graduate Junior Engineers their rightful quota of appointment as Assistant Engineers in accordance with the Rules while following the pattern of the CPWD even though a statutory duty is cast on the first respondent to fill up the posts of Assistant Engineers on 50 : 50 basis. 385 Consequently, 26 posts of Assistant Engineers in the direct recruitment quota are kept unfilled as is evident from the final seniority list of Assistant Engineers dated 2.9.1978 (Annexure 'G ') though there are 50 Graduate Junior Engineers who are eligible to compete for those posts. Though 26 posts of Assistant Engineers were available for being filled up as an 20.12.1978 only 8 posts were advertised (Annexure 'A ') and the names of petitioners 1 to 21 appeared in the duly prepared selection list. The first respondent has not filled up even those 8 posts with the candidates in that selection list but has filled up 6 posts by putting up Junior Engineers with Diploma as respondents 5 to 41 on current duty charge under the order dated 10.4.1978 forming Annexure 'I ' in violation of Rules and the petitioners 'right guaranteed under Article 16 of the Constitution of India. In all 37 posts of Assistant Engineers including some in the quota of direct recruits have been filled up by Junior Engineers holding only Diplomas on current duty charge with the object of favouring Diploma holders who have got great political influence by the Office order dated 21.6.1979 (Annexure 'M '). The Assistant Commissioner (Engineering) has taken an absolutely new stand in his reply (Annexure 'P ') received on 6.9.1979 by saying that implementation of the approved panel was not feasible on account of ban imposed by the Commissioner on 10.8.1979 on new recruitment. The Diploma holders posted as Assistant Engineers on the current duty charge have been further promoted as adhoc appointees by Office order dated 10.8.1979 (Annexure 'R '). The effect of this adhoc appointment is that the adhoc appointees draw pay in the higher scale of Assistant Engineers while in the current duty charge they were entitled to draw only their pay in the lower grade of Junior Engineers. The petitioners have, therefore, prayed for quashing the orders dated 10.4.1978 and 21.6.1979 (Annexures 'I ' & 'M '). The chances of Graduate Junior Engineers becoming Assistant Engineers are very bleak. Justice can be done of both Diploma holders and Graduates amongst the Junior Engineers by providing a reasonable quota for both categories in the 50 per cent quota reserved for promotees in the matter of appointment of Assistant Engineers as is done in the Delhi Electric Supply Undertaking so that Graduates and Diploma holders amongst the Junior Engineers may get equal chances of promotion. The petitioners, who are Graduate Junior Engineers, form a category with distinguishing features separate from Junior Engineers 386 who are Diploma holders. The Supreme Court has held that separate category within the same category on the basis of educational qualifications is clearly permissible and not violative of Article 14 of the Constitution of India. But the first respondent is treating the two categories as equal. The Graduate Engineers suggested to the Deputy Commissioners (Engineering) that a separate cadre of Graduate Junior Engineers in the pay scale of Rs. 550 900 may be created and designated as Design Assistants. The Assistant Commissioner (Engineering) has replied by his letter dated 27.3.1979 (Annexure 'K ') that the Municipal Chief Accountant has not accepted the suggestion. Under the Central Civil Service Rules, 1979 and on the basis of the Third Pay Commission 's Report the petitioners who are Graduate Junior Engineers are entitled to the pay scale of Rs. 550 900 which is the revised pay scale of Junior Engineers in Class III service in other government departments. The petitioners are similarly circumstanced with those other Graduate Junior Engineers, and there is no just or valid reason to discriminate the petitioners qua the other Graduate Junior Engineers in Class III service in other Government departments. The first respondent Corporation has not revised the special pay (planning allowance) from the date from which the petitioners as Graduate Junior Engineers are legally entitled thereto. The planning allowance has been revised in the CPWD from Rs. 40 to 75 per mensem with effect from 1.1.1979 by the order dated 1.1.1979 (Annexure 'ZA '). The Corporation has by Resolution No. 184 dated 21.6.1971 sanctioned special pay to Section Officers now known as Junior Engineers working in the Planning Circle at Rs. 40 per mensem in the case of Graduates and Rs. 25 per mensem in the case of Diploma holders with effect from 1.4.1971 on the pattern of the CPWD. The Planning allowance has been increased from Rs. 40 to Rs.75 per mensem in the CPWD with effect from 1.1.1979 by letter No. 28017 (17) 78 EW 1 dated 1.1.1979 (Annexure 'ZA ') of the Ministry of Works and Housing Government of India. Though the Commissioner has recommended revision from Rs. 40 to Rs. 75 in his letter, the revision has not been effected on the ground that the approval of the Municipal Council is not forthcoming. The Delhi Administration 's Notification dated 19.9.1972 circulated by respondent 1 on 30.9.1972 (Annexure 'ZC ') shows that the General Financial Rules including amendments and orders issued by the Central Government are applicable to respondent 1 in every manner, be it pay or general allowance. Therefore, the stand of the first respondent 387 that revision of the planning allowance will be effective only from the date of approval by the Municipal Council is baseless, mala fide and illegal. The petitioners have prayed for the aforesaid reliefs in these circumstances. The first respondent has filed a counter affidavit contending that the qualification prescribed in the Recruitment Regulations notified on 27.6.1970 is Diploma in Civil Engineering or any higher qualification, and since all the Junior Engineers either with Degree or with Diploma are performing the same duties, no separate category can be allowed to Graduate Junior Engineers. Those Recruitment Regulations provide for 50 per cent of posts of Assistant Engineers being filled by promotion amongst Junior Engineers and 50 per cent by direct recruitments. For direct recruitment a Degree in Civil Engineering and two years of professional experience are the minimum qualifications required while for promotees five years of professional experience as Junior Engineers in the case of Diploma holders and three years of professional experience in the case of Graduate Junior Engineers are the minimum qualifications required. The suggestion of the petitioner to treat the Graduate Junior Engineers as a separate category is not acceptable to the first respondent. The select list for direct recruitment to the posts of Assistant Engineers out of Graduate Junior Engineers was approved by the competent authority on 2.5.1979 and the matter of appointment being still under consideration only two appointments on current duty basis were made out of the senior most Junior Engineers by the order dated 21.6.1979 (Annexure 'M '). After the notification of the Recruitment Regulations in 1970, 36 Graduate Engineers in the direct recruitment quota and 10 promotees from amongst Graduates were appointed as Assistant Engineers. The criteria for promotion of Junior Engineers as Assistant Engineers is selection cum seniority. The rules for promotion applicable to the first respondent Corporation are quite different from those of the CPWD and it is not incumbent on the first respondent to follow the CPWD rules. The eligibility of the petitioners and their selection to the posts of Assistant Engineers are not denied by the first respondent. The petitioners ' names appear in the select list which has been approved by the Competent Authority on 2.5.1979 and is pending final decision about the appointment of the direct recruits selected for the 8 posts advertised in December 1978. The current duty charge arrangement 388 mentioned in Annexure 'M ' had to be made as a stop gap arrangement to meet the immediate requirements of the Department and not to favour any Diploma holders, and it does not amount to any violation of Article 16 of the Constitution of India. It is not admitted that 26 vacancies of Assistant Engineers still exist for being filled by direct recruitment. The appointment under the promotion quota is no doubt in excess of the prescribed percentage as some of the promotees had been adjusted against short term vacancies. The demand of the Graduate Junior Engineers ' Union for the creation of a separate cadre in the pay scale of Rs. 550 900 for Graduate Engineers was objected to by the Finance Department of the first respondent Corporation and found to be not feasible in view of the financial implications involved. The matter of revising planning allowance of Rs. 40 and Rs. 25 paid to Graduate Junior Engineers and Junior Engineers holding Diploma is under consideration. The 27th respondent has filed a counter affidavit in the Petition for Stay filed in W.P. 1194 of 1979. Though he has sought leave in that counter affidavit to file a detailed counter affidavit in the main Writ Petition, no such counter affidavit has been filed. In the course of arguments before us reference was made by the learned counsel for the parties to what is stated in the above counter affidavit. Therefore, we would like to mention briefly the contentions put forward by the 27th respondent in that counter affidavit. The seniority list published on 11.10.1979 shows that the quota of the promotee Assistant Engineers is deficient, in that 21 posts out of the quota for promotees are still unfilled whereas the entire quota for direct recruits has been filled up already. That seniority list has been issued with the approval of the Commissioner, vide office Order No. 2(90)/ECI/ENGG/ESTT/1574 dated 11.10.1979, and shows that no post is available for being filled up by direct recruitment. The Selection Board was not constituted as per the proper procedure. A minimum of two Deputy Commissioners are required to be on the Selection Board whereas in the case of the selection of Graduate Junior Engineers for appointment as Assistant Engineers 389 there was not even a single Deputy Commissioner on the Selection Board. When this illegality in the constitution of the Selection Board was realised, the Corporation authorities, at the behest of interested persons, had interpolated the name of the Deputy Commissioner (E) and obtained his signature sometime after the deliberations of the Selection Board had been completed and the minutes had already been signed by the members. Page 180C of the proceedings of the Selection Board (Annexure RIII to this counter affidavit) shows that Har Mohinder Singh (sl. No. 15) was absent for the interview. Yet he has been awarded a total of 34 marks, including four marks at the interview and his name is sought to be placed at No. 14 in the Select Panel. The order communicating the constitution of the Selection Board shows that there were only four members including the Municipal Engineer who was designated as the Chairman. But the final minutes are signed by 5 members including the Deputy Commissioner (E). The Corporation was formed on 7.4.1958. Since then a total of 95 Assistant Engineers have been appointed by direct recruitment whereas amongst the Junior Engineers and lower categories only 78 have been appointed as Assistant Engineers. Thirty six respondents who are holding Current Charge as Assistant Engineers since various dates falling between 10.4.1978 and 21.6.1979 had joined service as Junior Engineers about 18 to 20 years ago, i.e., between 14.10.1959 and 24.8.1961. and they have become eligible for promotion as Assistant Engineers on a regular basis according to the rules of the Corporation long ago. Therefore, there is nothing wrong in promoting them on Current Charge basis as Assistant Engineers. The Recruitment Regulations deal with and apply expressly to only 63 posts of Assistant Engineers. The direct recruits are, therefore, entitled to only 30 posts on 50 : 50 basis, but they have been admittedly given 36 posts. Therefore, there is no further post of Assistant Engineer to be given to them on any of the respondents holding Current Charge being reverted as Junior Engineers. According to the procedure and rules of the Corporation, Current Duty Charge holders are to be given adhoc appointments as soon as possible, and as per the preamble to the Commissioner 's letter No. 34 C&C dated 11.9.1979 adhoc status is required to be conferred with effect from the date of commencement of Current Duty Charge. The panel prepared by the Selection Board, which has yet not been issued, is supposed to contain 37 names. Though under the 390 Rules for the 8 posts of Assistant Engineers advertised to be filled. by direct recruitment only 8 plus 20% thereof have to be selected it is interesting to note that the number of Junior Engineers holding Current Duty Charge is also 37. We have re arranged the order of the prayers in the Writ Petitions filed for the issue of Writs of Mandamus or other appropriate Writs and would mention them here once again for the sake of convenient reference. They are: Writ Petition No. 221 of 1979: (1) to restrain respondent 1 from recruiting Assistant Engineers directly and filling up the posts of Assistant Engineers; (2) to direct respondent 1 to give effect to the recommendations of the Third Pay Commission regarding the rules and policy of promotion etc; (3) to quash the seniority list (Annexure G) prepared by respondent 1; (4) to direct respondent 1 to reckon the seniority of the petitioners with the length of their service; and (5) to direct respondent 1 not to affect in any manner all Junior Engineers holding current duty charge and adhoc appointments as Assistant Engineers. Writ Petition No. 1194 of 1979: (1) to direct respondent 1 to fill up the 8 posts of Assistant Engineers by direct recruitment from amongst the Graduate Junior Engineers in the select panel; (2) to quash the Office Order dated 10.4.1978 (Annexure 1) entrusting Junior Engineers with current duty charge of the posts of Assistant Engineers and the Office Order dated 21.6.1979 (Annexure M) promoting Junior Engineers as Assistant Engineers on current duty charge; 391 (3) to direct respondent 1 to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners who are Graduate Junior Engineers; (4) to declare the petitioners Graduate Junior Engineers as a separate category amongst Junior Engineers and give them equal quota like the Diploma holders Junior Engineers out of the departmental quota in the posts of Assistant Engineers; (5) to restrain respondent 1 from giving adhoc promotions to current duty charge holders amongst Junior Engineers; (6) to declare that the petitioners Graduate Junior Engineers in the service of respondent 1 are entitled to be put on par with their counterparts in other Government departments; (7) to direct respondent 1 to grant revised pay scale of Rs. 550 900 to the petitioners and other Graduate Junior Engineers as in the case of Graduate Junior Engineers in Class (III) service in other Government departments with effect from the date on which it is made applicable in the CPWD; and (8) to direct respondent 1 to revise the special pay from Rs. 40 to Rs. 75 per mensem to the petitioners and other Graduate Junior Engineers entitled thereto from 1.1.1979. We shall consider prayers 1 and 2 in Writ Petition No. 221 of 1979 and prayer I in Writ Petition No. 1194 of 1979 all of which relate to direct recruitment to 8 posts of Assistant Engineers. According to the counter affidavit filed on behalf of respondent 1, apart from Executive Engineers, Superintending Engineers and Municipal Engineer who is at the top, the Engineering Service (Civil) of respondent 1 consists of: (1) 450 Junior Engineers in the pay scale of Rs. 425 700 of which 80% is filled by direct recruitment with the 392 minimum qualification of Diploma in Civil Engineering and 20% is filled by promotion from amongst Works Assistants already in the service of respondent 1 with Diploma in Civil Engineering and minimum experience of 2 years; (2) 13 Selection Grade Junior Engineers in the pay scale of Rs. 550 900 to be filled by promotion of Junior Engineers on completion of 12 years of service on the basis of seniority; and (3) 99 Assistant Engineers in the pay scale of Rs. 650 1200 of which 50% is to be filled by promotion of Junior Engineers and 50% is to be filled by direct recruitment. A Degree in Civil Engineering and 2 years of professional experience are essential for direct recruitment as Assistant Engineers while for promotion as Assistant Engineers from the cadre of Junior Engineers a minimum of 3 years of service for Degree holders and 5 years of service for Diploma holders in the Grade of Junior Engineers are essential. All other higher posts of Executive Engineers, Superintending Engineers and Municipal Engineers are primarily filled by promotion of Assistant Engineers, Executive Engineers and Superintending Engineers respectively. All the appointments in the respondent 1 Corporation carrying a minimum salary of less than Rs. 700 per mensem could be made by the Commissioner of the Corporation since 10.1.1975 in accordance with the recruitment rules which are framed in consultation with the Union Public Service Commission though prior to that date consultation with the Union Public Service Commission was essential in the matter of appointment to posts carrying a minimum salary of Rs. 350 per mensem and above. Direct recruitment is to be made on the recommendation of the Selection Board to be constituted for the purpose from time to time. Similarly, promotions are to be made on the recommendation of the Departmental Promotion Committee to be constituted for the purpose from time to time. The quota of 50% for 393 promotees amongst Junior Engineers and 50% for direct recruitment from amongst outsiders as well as Graduate Junior Engineers for appointment to posts of Assistant Engineers which are selection posts was fixed by the Recruitment Regulation dated 27.6.1970 made by the first respondent under section 98 of the Delhi Municipal Corporation Act, 1957, vide resolution No. 97 dated 4 5.1970 in connection with the recruitment for the posts of Assistant Engineers (Civil) and approved by the Lt. Governor, Delhi under section 480 (2) of the said Act read with the Government of India, Ministry of Home Affairs ' Notification dated 19.10.1966. The cause of the Graduate Junior Engineers is espoused by the Graduate Junior Engineers Union while the cause of the Diploma holders Junior Engineers is espoused by the Municipal Corporation of Delhi Assistant Engineers (ORG) (Regd.). There is no dispute about these facts except in regard to the quota of 50% for promotee Junior Engineers and 50% for directly recruited Graduate Engineers including Graduate Junior Engineers. According to the petitioners in Writ Petition 221 of 1979 who are Diploma holders Junior Engineers respondent 1 has been following the pattern of functioning current in the CPWD in all matters of recruitment, promotion and other conditions of service. The CPWD has decided to suspend direct recruitment in the Central Engineering Service because no promotional chances were available to the Central Engineering Service/Electrical Engineering Service Class (II). The said decision taken in August 1975 became effective from 1.4.1972. The first respondent has taken a decision by Resolution Nos. 416 and 78 dated 27.10.1970 and 21.2.1971 respectively to the effect that all fundamental rules and supplementary rules including amendments and orders issued by the Central Government shall be treated as rules etc. by respondent 1. The Central Services Conduct Rules and General Fundamental Rules including amendments and orders issued by the Central Government have been made applicable to respondent 1. As soon as the petitioners learnt that there is suspension of direct recruitment in the CPWD they invited the attention of respondent 1 to that fact in November 1975 and requested 394 for banning direct recruitment of Assistant Engineers and were given an assurance that their rights will not be over looked. The petitioners made several representations including the last one dated 24.1.1979. The then Commissioner of respondent 1 gave an oral assurance to the petitioners that the practice adopted by the CPWD will be followed by respondent 1, and later wrote to the petitioners saying that the matter was under consideration. The petitioners met the Deputy Commissioner of respondent 1 on 23.1.1979 and protested against the notification made in the press on 30.12.1978 for filling up 8 posts of Assistant Engineers by direct recruitment and they expected that the notification would be with drawn as the Deputy Commissioner accepted their suggestion. But respondent 1 is, however, bent upon going ahead with the direct recruitment though more than 275 Junior Engineers out of 400 Junior Engineers aspiring for promotion as Assistant Engineers are eligible for consideration. The Central Government has power of general superintendence over the first respondent and it has informed the first respondent by letter dated 22.3.1976 that consequent on the recommendations of the Third Pay Commission direct recruitment may be banned by respondent 1 as has been done by the CPWD. The Director in the Office of the Director General of Works, Government of India has informed the first respondent 's Assistant Commissioner (Establishment) by letter dated 16.2.1978 that direct recruitment to the Central Engineering Service and Central Electrical Engineering Service (Group B) was still under suspension. Though no specific reference has been made in the Third Pay Commission 's Report to Junior Engineers of the first respondent its recommendations have been followed by the first respondent and its employees are treated in the same manner as the employees of the Central Government. The pay scales and service conditions of the employees of the first respondent and the Central Government are the same. The proposed direct recruitment to 8 posts of Assistant Engineers is detrimental to the interest of the petitioners. The first respondent should, therefore, be asked to follow the same policy as the one adopted by the CPWD and be restrained from appointing 8 Assistant Engineers by direct recruitment. This is how the petitioners in Writ Petition 221 of 1979 seek the relief covered by the first prayer. This is also the stand as defence in regard to the first prayer in Writ Petition 1194 of 1979 which is for a direction being given to respondent 1 to fill up the 8 posts of Assistant Engineers by direct recruitment from amongst those in the select list. 395 The 27th respondent has contended in his counter affidavit that since the formation of the first respondent Corporation on 7.4.1958 as many as 95 Assistant Engineers have been appointed by direct recruitment whereas amongst Junior Engineers only 78 have been appointed as Assistant Engineers by way of promotion. There were only 60 posts of Civil Engineers when the Recruitment Regulations dated 27.6.1970 were made and those Regulations could apply only to 60 posts of Assistant Engineers and direct recruits would be entitled to only 30 posts and they are not entitled to further posts by direct recruitment now as they have already been given 36 posts. The 27th respondent has attacked the selection of the panel of 37 persons by the Selection Board constituted pursuant to the decision to fill up 8 posts of Assistant Engineers by direct recruitment on the ground that the Selection Board had not been properly constituted and there are certain other irregularities. This is how the 27th respondent is challenging the decision to appoint 8 Assistant Engineers by direct recruitment and the validity of the select panel prepared by the Selection Board. The first respondent 's contention is that the Delhi Municipal Corporation is a statutory authority which is no doubt controlled by the Central Government but only to the extent mentioned in S, 487 of the Delhi Municipal Corporation Act, 1957. The Corporation has resolved by Resolution No. 50 dated 20.7.1964 to adopt the CPWD pattern with regard to the execution of works alone and not with regard to the mode of recruitment and other service matters. The Central Government Rules are made applicable to the employees of respondent 1 only on their adoption and approval by the Corporation, and otherwise its employees are governed by the Rules and Regulations framed by the Corporation itself under section 98 of the said Act. The representations made from time to time for suspension of direct recruitment of Assistant Engineers were duly considered, but it was found that there was no justification to comply with that request and a decision to that effect was taken by the Council of the Corporation on 19.4.1978 in the interest of the Corporation. Section 47 of the Delhi Municipal Corporation Act provides for directions being given to the Corporation by the Central Government, but the Central Government 's letter dated 23.2.1976 to the effect that consequent on the Third Pay Commission 's recommendations respondent 1 may ban direct recruitment as has been done by the CPWD is not a direction given under that section and is, therefore, not binding on respondent 1. The Recruitment 396 Regulations dated 27.6.1970 framed under section 98 of the Delhi Municipal Corporation Act provide for 50% of the posts of Assistant Engineers being filled by direct recruitment and 50% by promotion of Junior Engineers. The decision to fill up 8 posts of Assistant Engineers by direct recruitment was taken in view of the shortfall in the direct recruitment quota compared to the promotion quota. Respondents 3 to 10 and 12 to 15 in Writ Petition 221 of 1979 have contended in their counter affidavit that the prayers 1,2 and 4 in that Writ Petition are in the direct violation of the Recruitment Regulation dated 27.6.1970. They have further contended that respondent 1 is not following the pattern of the current functioning of the CPWD in the matter of recruitment and other service conditions but is following its own Recruitment Regulations which have been approved by the Union Public Service Commission and duly notified on 27.6.1970. The direct recruitment is resorted to by respondent 1 for having highly qualified and talented Engineers and maintaining standards and efficiency. The petitioners in Writ Petition 1194 of 1979 contend that a statutory duty is cast on respondent 1 to fill up the posts of Assistant Engineers on 50:50 basis. Though there were 26 posts of Assistant Engineers to be filled on that basis by direct recruitment, only 8 posts were notified on 30.12.1978 to be filled by direct recruitment. The first respondent has however not filled up even those 8 posts but has filled up some posts of Assistant Engineers thereafter on adhoc basis with Junior Engineers even though the select list has been approved on 2.5.1979 pursuant to the interviews held on the 6th and 7th March, 1979 in connection with the decision to fill up 8 posts of Assistant Engineers by direct recruitment. The first respondent has contended in its counter affidavit in Writ petition 1194 of 1979 that the select list for direct recruitment to the posts of Assistant Engineers out of Graduate Junior Engineers was approved by the competent authority on 2.5.1979 and the matter of appointment of 8 Assistant Engineers is under consideration. The petitioners ' names are in the select list and their eligibility and selection to the posts of Assistant Engineers is not denied and their appointment as Assistant Engineers by direct recruitment is under consideration. We may state here that Mr. U. R. Lalit, Senior Advocate, appearing for respondents 1 and 2 has stated before us on 29.7.1981 397 that the total number of vacancies of Assistant Engineers would be ascertained within 2 1/2 months and thereafter in another 2 1/2 months orders of appointment of Assistant Engineers by direct recruitment will be issued by respondent 1. Mrs. Shyamla Pappu, Senior Advocate appearing for the petitioners in Writ petition 221 of 1979 drew our attention to certain documents and submitted that direct recruitment of Assistant Engineers should have been suspended by respondent 1 following the decision taken by the CPWD to suspend direct recruitment of Assistant Engineers for 7 years from 1.4.1972. She also submitted that the 50:50 quota rule in the Recruitment Regulations approved on 27.6.1970 should not be followed. If her submission is that the quota rule should not be followed altogether it is not consistent with the stand taken by the 27th respondent in his counter affidavit and also by Mr. S.C. Gupta, learned counsel appearing for respondents 13, 25 and 27 in Writ petition 1194 of 1979. The contention of the 27th respondent referred to above is that the quota rule can apply only to 60 posts of Assistant Engineers which were in existence on the date on which the Recruitment Regulations were approved, viz. 27.6.1970 and since there were 36 directly recruited Assistant Engineers when Writ petition 1194 of 1979 was filed which was more than 50% of the 60 posts there are no more posts of Assistant Engineers to be filled by direct recruitment. There can be no difficulty in holding that this contention of the 27th respondent is totally unacceptable. It is true that when the Recruitment Regulations were approved on 27.6.1970 there were only 60 posts of Assistant Engineers (Civil) in respondent 1 Corporation. The number was 99 when Writ petition 1194 of 1979 was filed and 115 when it was heard in this Court. The contention that the 50:50 quota rule can apply only to 60 posts which were in existence when the Recruitment Regulations were approved and will not apply to posts which are in excess of that number is totally unreasonable and unsustainable and consequently rejected. We will now refer to the documents relied upon by Mrs. Shyamla Pappu. The Under Secretary, Government of India, Ministry of Works and Housing, drew the attention of the Commissioner of respondent 1 by his letter dated 23.2.1976 to the CPWD banning recruitment of Class II Engineers for 7 years from 1972 consequent on the recommendations of the Third pay Commission in order to avoid stagnation in respect of promotion of Junior Engineers and stated that it will be appreciated if the Commissioner could 398 consider the possibility of following that policy in the Corporation which will go a long way in reducing the stagnation in respect of promotion of Junior Engineers in the Corporation. Admittedly, there is no direct reference to Junior Engineers of respondent 1 Corporation in the Third pay Commission 's Report. The decision of the CPWD to suspend direct recruitment to CEC Class II for 7 years w.e.f 1.4.1972 is found at pages 20 and 21 of the CPWD Manual Volume I 1975 Edition. The Delhi Municipal Corporation is a statutory authority governed by the Delhi Municipal Corporation Act, 1957. The Central Government can give directions to the Corporation only under Section 487 of that Act. According to that section the Central Government may direct the Corporation or the Municipal Authority concerned to make arrangements to its satisfaction for the proper performance of the duty or as the case may be to make financial provision to its satisfaction for the performance of the duty if, whether on receipt of any information or report obtained under Section 485 or Section 486 or otherwise the Central Government is of the opinion: (a) that any duty imposed on the Corporation or any Municipal Authority by or under that Act has not been performed or has been performed in an imperfect, insufficient or unsuitable manner; or (b) that adequate financial provision has not been made for the performance of any such duty. Sub section (2) of Section 487 relates to directions to Municipal Authorities in relation to the Delhi Electric Supply Undertaking or the Delhi Water Supply and Sewage Disposal Undertaking with which we are not concerned in these two Writ Petitions. As rightly contended by Mr. V.M. Tarkunde, Senior Advocate appearing for the petitioners in Writ Petition 1194 of 1979 the letter dated 23.2.1976 referred to above does not contain any direction which could be issued by the Central Government under Section 487 of the Act and is not binding on respondent 1. The President of the Delhi Municipal Corporation Assistant Engineers (ORG) (Regd.) has stated in his letter dated 13.4.1978 addressed to the Commissioner of respondent 1 that respondent 1 has agreed to adopt the practice of the CPWD for filling up posts of Assistant Engineers. No record has been produced to show what 399 exactly are the terms of that agreement. It is not possible for us to infer from this letter that the Commissioner has agreed to suspend direct recruitment of Assistant Engineers. The Secretary of the Delhi Municipal Corporation Assistant Engineers (ORG) (Regd.) has by his letter dated 24.1.1979 requested the Deputy Commissioner of respondent 1 to cancel the Notification published on 30.12.1978 for direct recruitment of Assistant Engineers. The Commissioner of respondent 1 has stated in his letter No. 5504 C&C dated 20.8.1979 that the Corporation generally follows the pattern prevailing in the CPWD. The Standing Committee of the Corporation had resolved to recommend to the Corporation that "in view of the widespread stagnation amongst Junior Engineers (Civil) direct recruitment to posts of Assistant Engineers (Civil) may be banned/suspended for a period of 7 years under the civil body also in conformity with the recommendations of the Third Pay Commission as adopted by the civil body" and that "as recruitment to the posts of Assistant Engineers (Civil) has already been made by the Corporation in violation of the aforesaid ban of the Government of India during the period 1.4.1972 to 31.12.1978 the proposed suspension of recruitment to the said posts may be operative for 7 years from the 1st January, 1979". But in his note dated 19.4.1978 against stopping direct recruitment of Assistant Engineers the Commissioner has stated that it would not be in the larger interests of the Corporation to stop direct recruitment and not to induct fresh Engineers with higher qualifications. In that note the Commissioner had directed the formation of panels for the promotional and direct recruitment quotas and the issue of notification in the press for direct recruitment of Assistant Engineers. Regarding the proceedings of the Appointment, Promotion, Disciplinary and Allied Matters Committee dated 5.4.1978 in respect of a Municipal Councillor 's notice of resolution about amendment of the existing recruitment and promotional rules for the posts of Assistant Engineers the Commissioner of respondent 1 has stated thus in his note: "In the Municipal Corporation of Delhi it is only at the level of Assistant Engineers that direct recruitment of Degree holders in provided which too is limited to 50% posts only. Since sufficient number of highly qualified Engineers are not presently available with the Corporation and whereas all the higher posts right upto the posts of Municipal Engineer have to be filled up from the cadre of Assistant Engineers the cadre must 400 have sufficient number of officers of high calibre. It is, therefore, not considered in the interests of the Corporation to stop direct recruitment to the posts of the Assistant Engineers. Moreover, the amended Recruitment Regulations for the posts of Assistant Engineers (Civil/Elect.) have since been approved by the Corporation recently, vide their Resolution No. 348 dated 10.7.1978 wherein there is no change in the existing mode of recruitment, i.e., 50% by direct recruitment. Obviously, there is no justification to stop direct recruitment against the allocation of 50% posts earmarked for direct recruitment as per approved Recruitment Regulations framed in consultation with the UPSC". It would appear from what has been stated above that the Municipal Corporation of Delhi which is a statutory authority is not automatically bound by any decision that may be taken by the CPWD in regard to direct recruitment of Assistant Engineers and that it is open to the Corporation to adopt any policy of the CPWD by a resolution when alone that policy will become binding on the Corporation. No provision in the Third Pay Commission 's Report has been brought to our notice. Mrs. Shyamla Pappu has, on the other hand, admitted that there is no resolution of the Delhi Municipal Corporation banning or suspending direct recruitment of Assistant Engineers for 7 years or any period from any date whatsoever. The 50:50 quota fixed in the Recruitment Regulations approved on 27.6.1970 has not been altered but has been approved by the Corporation in its Resolution No. 348 dated 10.7.1978. Therefore, there is no substance in the contention of the petitioners in Writ Petition 221 of 1979 or the contesting private respondents in Writ Petition 1194 of 1979 that respondent 1 should have suspended the direct recruitment of Assistant Engineers and that the quota rule laid down in the Recruitment Regulations should not be followed. Coming now to the contention urged by Mr. S.C. Gupta, learned counsel appearing for respondents 13, 25 and 27 in Writ Petition 1194 of 1979, regarding the quota fixed in the Recruitment Regulations we have already held that it cannot be restricted to only 60 posts of Assistant Engineers which were in existence on the date of their approval. The Recruitment Regulations themselves do not say that they are retrospective in operation from 1958. Prime facie those Regulations would apply to all future recruitments and 401 promotions. That is how they have been understood by the authorities of respondent 1 Corporation when they decided to have 8 posts of Assistant Engineers filled up by direct recruitment though at that time there were 36 directly recruited Assistant Engineers holding more than 50% of 60 such posts. Mr. S.C. Gupta invited out attention to the counter affidavit of the 27th respondent where it is stated that the seniority list dated 11.10.1979 purporting to have been issued with the approval of the Commissioner of respondent 1 subject to the final decision of the Delhi High Court in Writ Petitions 327 of 1971 and 1631 of 1976 shows a large deficiency in the quota of promotees in the category of Assistant Engineers. But he admitted that seniority list was withdrawn soon afterwards and that a subsequent seniority list prepared by respondent 1 was quashed by the Delhi High Court in Writ Petition 742 of 1971 on 11.2.1981 and the matter is pending in this Court in a special leave petition. The seniority list dated 2.9.1978 (Annexure G in Writ Petition 1194 of 1979) which was prepared after hearing all concerned does not appear to have been objected to before or after it was finalised except in Writ Petition 221 of 1979. In that seniority list 130 posts of Assistant Engineers are mentioned by placing one promotee and one direct recruit alternatively according to their seniority. Thus we find that there is no merit in the contention of respondents 13, 25 and 27 in Writ Petition 1194 of 1979 as regards the decision to fill up 8 posts of Assistant Engineers by direct recruitment and the quota fixed in the Recruitment Regulations, 1970. Mr. S.C. Gupta did not advance any argument in regard to the plea of the 27th respondent about the constitution of the Selection Board and the alleged irregularity in the preparation of the select list for appointment of Assistant Engineers by direct recruitment. Our attention has not been drawn to any rule or provision requiring two Deputy Commissioners of respondent 1 to be present on the Selection Board. The 27th respondent has not produced any record to show that the name of the Deputy Commissioner (Establishment) has been interpolated in the records of the Selection Board at a later stage or that Mohinder Singh who is stated to have been marked as absent for the interview was really absent and the award of 34 marks to him including 4 marks at the interview is irregular. The 27th respondent has not substantiated any of the disputed questions of fact urged by him in his counter affidavit in regard to the selection 402 of the persons who are now in the select panel of Assistant Engineers. Mr. V.M. Tarkunde submitted that in spite of the Commissioner having approved the selection made on 6th and 7th March, 1979 by the Selection Board constituted for direct recruitment of Assistant Engineers the petitioners in Writ petition 1194 of 1979 who have been selected for appointment as Assistant Engineers have not been appointed and that on the other hand on 21.6.1979 under orders of the Deputy Commissioner dated 19.6.1979 two Junior Engineers have been posted as Assistant Engineers (Civil) on Current Charge basis with immediate effect and that by the order dated 5.6.1979 pursuant to the Commissioner 's order dated 2.6.1979 Sukhbir Singh, one of the petitioners, against whom some departmental proceedings appear to have been pending, had been promoted as Assistant Engineer (Civil) w.e.f. 2.1.1975 and ordered to continue in the post in which he was working on adhoc basis though the final seniority list dated 2.9.1979 (Annexure G) shows that 26 posts of Assistant Engineers to be filled by direct recruitment are kept vacant right from 1971. The learned counsel also pointed out that in the meeting of the Commissioner and other officers of respondent 1 on the one hand and the General Secretary of the Graduate Junior Engineers Union on the other, held on 12.3.1979 it was decided that the appointment/promotion to posts of Assistant Engineers (Civil) should be made strictly and truly as per the Recruitment Regulations and no Diploma holder should be promoted till the direct recruitment quota is filled up, and that the Deputy Commissioner stated in that meeting that appointments/promotions to the posts of Assistant Engineers (Civil) were being made only according to the Recruitment Rules. It was pointed out rightly by Mr. V.M. Tarkunde that the following particulars given in paragraph 14 of Writ petition 1194 of 1979 showing that 33 appointments of Junior Engineers as Assistant Engineers have been made between 1972 and 1978 irregularly is admitted in the counter affidavit filed on behalf of respondents 1 and 2. Appointments made after the Recruitment Regulations, 1970 fixed 50% for promotees and 50% for direct recruits: Promotees Direct Recruits 1972 Regular 47 1974 Regular 18 1975 Regular 13 1976 Regular 3 1979 Regular 1 1977 78 Regular 13 Adhoc 3 1978 Regular 2 Current Duty Charge 39 Total 103 36 403 In the counter affidavit of respondents 1 and 2 it is stated that appointment of Assistant Engineers in the promotion quota is of course in excess of the prescribed limit and that the question of direct recruitment to posts of Assistant Engineers (Civil) is under consideration and the eligibility of the petitioners in Writ petition 1194 of 1979 and their selection to the posts of Assistant Engineers by direct recruitment are not denied by respondents 1 and 2. This Court has observed in A.K. Subbaraman & ors, vs Union of India(1) thus: "When recruitment is from two or several sources it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by the rule of rotation. The existence of a quota and rotational rule by itself will not violate article 14 or article 16 of the Constitution." For all the reasons stated above we find that there is nothing wrong in the respondent 1 Corporation proceeding to appoint Assistant Engineers (Civil) by direct recruitment as per the Recruitment Regulations or in fixing the 50:50 quota and working it out or in the selection of the petitioners in Writ petition 1194 of 1979 as Assistant Engineers pursuant to the decisions to appoint 8 Assistant Engineers (Civil) by direct recruitment in the interviews held for that purpose on 6th and 7th March, 1979 and that respondent 1 and 2 should issue orders of appointment to those posts to 8 of the petitioners in Writ petition 1194 of 1979 who are in the select list within six weeks from this date if not already issued as undertaken by Mr. U.R. Lalit on 29.7.1981 within five months from that date. Prayer No. 3 in Writ petition 1194 of 1979 is to direct respondent 1 to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners who are Graduate Junior Engineers No further discussion is necessary to record a finding on this question after what has been stated above in regard to prayers. 1 and 2 in writ petition 221 of 1979 and prayer 1 in Writ petition 1194 of 1979. Respondent 1 is admittedly bound by the Recruitment Regulations made with the approval of the Central Government as required by section 480(2) of the Act 404 and it shall fill the remaining posts of Assistant Engineers in the direct recruitment quota which are kept vacant in the seniority list dated 2.9.1978 (Annexure G in Writ petition 1194 of 1979) and any further posts which might have become available thereafter or become available in view of our decisions in these two Writ petitions or otherwise in accordance with those Recruitment Regulations within six months from today or from the date on which further vacancy to the posts of Assistant Engineers in the direct recruitment quota arises as the case may be, if permissible from out of the select list approved on 2.5.1979. Next we will consider prayers Nos. 2 and 5 in Writ petition 221 of 1979 and Prayer No.2 in Writ petition 1194 of 1179 which relate to Current Duty Charge appointment and Adhoc appointment of Junior Engineers as Assistant Engineers. As stated earlier the allegation in paragraph 14 of Writ petition 1194 of 1979 that there are 39 Junior Engineers working as Assistant Engineers on Current Duty Charge and 3 Junior Engineers working as Assistant Engineers on Adhoc basis is admitted in the counter affidavit filed on behalf of respondents 1 and 2. The 27th respondent has admitted in his counter affidavit that there are 37 Junior Engineers holding Current Duty Charge as Assistant Engineers. In another portion of Writ petition 1194 of 1979 it is alleged that in all 37 posts of Assistant Engineers including some in the quota of direct recruits have been filled up by Junior Engineers holding only Diplomas on Current Duty Charge including 2 appointed by the office order dated 21.6.1979 (Annexure M) with the object of favouring Diploma holders without appointing 8 Graduate Junior Engineers as Assistant Engineers though their selection has been approved by the competent authority on 2.5.1979 and that earlier 6 posts of assistant Engineers have been filled up by putting Junior Engineers with Diplomas on Current Duty Charge by the office Order dated 10.4.1971 (Annexure I) in violation of the rules and the petitioners ' rights guaranteed under Article 16 of the Constitution. It is further alleged in the Writ petition that the effect of Adhoc appointments is that the Adhoc appointees draw the higher scale of pay of Assistant Engineers though when they hold Current Duty Charge they are entitled to draw only their own pay in the lower grade of Junior Engineers. The petitioners have, therefore, prayed for quashing those two office orders dated 10.4.1978 and 21.6.1979. The defence of respondent 1 in the counter affidavit is that the Current Duty Charge arrangement made in the office order 405 dated 21.6.1979 had to be made as a stop gap arrangement in order to meet the minimum requirements of the department and not to favour any Diploma holder and that it does not amount to violation of Article 16 of the Constitution. The 27th respondent has contended that according to the procedure and rules of the Corporation Current Duty Charge holders are to be given Adhoc appointments as soon as possible and that according to the preamble to the Commissioner 's letter No. 346/C&C dated 11.9.1979 Adhoc status is required to be conferred with effect from the date of commencement of the Current Duty Charge. The petitioners in Writ Petition 221 of 1979 contend that 26 Junior Engineers out of the total number of Junior Engineers in the service of respondent 1 are holding Current Duty Charge from 1978 and several others are holding charge as Assistant Engineers on adhoc basis and that all those Junior Engineers who are officiating as Assistant Engineers are to be treated as regularly appointed Assistant Engineers. In the counter affidavit filed in Writ Petition 221 of 1979 respondent I has contended that all posts to be filled by direct recruitment have to be advertised and the candidates have to be called for interview and the selection made has to be approved by the Corporation and that even for promotion a Departmental Promotion Committee with a member of the Union Public Service Commission on it has to be constituted and a list of eligible candidates has to be prepared and they have to be screened before the selection is made. It is further contended that all these procedures take time and the work of the Corporation cannot remain unattended and, therefore, senior personnel from the immediate lower category of officers are drafted to fill up the vacant posts of Assistant Engineers on adhoc basis without any right to those posts which have to be filled by either promotion or direct recruitment as per the rules. Mrs. Shyamla Pappu appearing for the petitioners in Writ Petition 221 of 1979, Mr G. L. Sanghi, Senior Advocate appearing for respondents 3, 4, 6, 10, 12, 20, 38 and 44 and Mr. R.P. Sharma, Advocate appearing for respondents 9 to 13 and 28 in that petition and Mr. S.C. Gupta appearing for respondents 13, 25 and 27 in Writ Petition 1194 of 1979 did not advance any argument regarding the Current Duty Charge and Adhoc appointment of Junior Engineers as Assistant Engineers which is impugned in Writ Petition 1194 of 1979. Mr. V.M. Tarkunde submitted that there is no specific provision for respondent 1 making adhoc appointments as Assistant Engineers and he pointed out that the revised seniority 406 list dated 2.9.1978 (Annexure G in Writ Petition 1194 of 1979) shows that adhoc appointments are being made from 22.6.1962 though according to the Office Memorandum No. 22011/6/75 Estt. (D) dated 30.12.1976 of the Government of India, Cabinet Secretariat, Department of Personnel and Administrative Reforms in exceptional circumstances and under exigencies of public service it may be necessary to make adhoc appointments without following the prescribed procedure and such appointments should be subject to the following instructions, viz: (a) Purely short term vacancies caused by leave, short term deputation, training etc. may be filled by adhoc appointments if the posting of the person next in the panel will be administratively difficult or if he is not interested in such short term promotion. Such appointment can be made also when the panel is exhausted or has expired and if there is no time to convene a Departmental Promotion Committee meeting and prepare a fresh panel. Adhoc appointments made to fill in short term vacancies should be only by promotion of departmental candidates and not by direct recruitment. (b) In the case of regular vacancies due to death, retirement, resignation, promotion and deputation for period exceeding one year the vacancies should be filled by regular method and not by adhoc appointments. However, if the panel is exhausted and delay is anticipated in preparing a fresh panel and if the exigencies of public interest required the filling of the vacancy immediately adhoc appointments can be made without following the prescribed procedure. But regarding Current Duty Charge appointments there is a Circular dated 14.12.1973 of respondent 1 and it lays down the following norms for making Current Duty Charge appointments for higher posts viz: (1) Current Duty Charge appointments should be made only in the order of seniority subject to the condition that the officer is otherwise fit with reference to 407 service, character rolls and clearance reports from the DOV/DOI; (2) Current Charge arrangements should not be made if otherwise suitable person senior to the incumbent is available except where the Current Charge arrangement is for such a short period that it will not be in administrative interest to disturb the eligible person from his existing assignment; (3) Current Charge arrangement should cease forthwith when an officer becomes eligible for adhoc/regular appointment to the post. Cases of adhoc/regular appointments are to be initiated simultaneously with making Current Charge arrangements. The Commissioner of respondent 1 has issued an Office Order dated 10.8.1979 approving the adhoc arrangement to the post of Assistant Engineers (Elect.) in the pay scale of Rs. 650 1200 plus the usual allowances in respect of 5 Assistant Engineers (Elect.) who were presently working on Current Duty Charge from the dates of their taking over charge or entrustment of Current Duty Charge as noted against their names for the period ending 29.2.1980 or until the posts are filled on a regular basis. Out of these 5 persons one each was on Current Duty Charge from 1974 and 1976 and 3 were on Current Duty Charge from 1978. Thus it is seen that on the electrical side respondent 1 has been keeping persons on Current Duty Charge from 1974, 1976 and 1978 until 29.2.1980 though as per the Circular dated 14.12.1973 mentioned above cases for adhoc/regular appointments should be initiated simultaneously while making Current Charge arrangements. Mr. V.M. Tarkunde pointed out that in all 55 Current Charge appointments have been made from 15.6.1970 inclusive of 2 made on 15.6.1970, 22 made in 1978, 15 made in 1979, 6 made in 1980 and 10 made in 1981 and that they were all continuing even on 22.7.1981. It is not disputed that Junior Engineers working on Current Duty Charge receive emoluments based only on their own pay scale as Junior Engineers and that on their adhoc appointment as Assistant Engineers they receive emoluments on the basis of the higher pay scale of Assistant Engineers right from the date on which they were put on Current Duty Charge. It is evident that Junior 408 Engineers would be anxious to be put on Current Duty Charge as they are sure that if they are subsequently appointed on adhoc basis they would become entitled to emoluments on the higher pay scale right from the date on which they were put on Current Duty Charge. All that Mr. U.R. Lalit did before us in connection with this question was to invite our attention to the aforesaid Circular dated 14.12.1973 and to a Memorandum presented to respondent I by the Graduate Junior Engineers Union where the following decision taken by the Establishment Board on 17.8.1974 is extracted, viz: "In the meeting of the Establishment Board held on 17.8.1974 it is explained and recommended by the M.E. (Municipal Engineer) that under the direct recruitment quota only qualified persons having Degree in Engineering are eligible. It was, therefore, decided that selection be made out of the departmental Junior Engineers having Degrees in Engineering after looking into their CRs and after assessing their merits by the Establishment Board. They will be appointed on Current Duty Charge/Adhoc basis in the first instance and will be replaced as soon as the persons selected by the UPSC are available." Mr. U.R. Lalit did not dispute the facts mentioned by Mr. V.M. Tarkunde about the Current Duty Charge appointments having been made from 1974 to 1981 of which 2 were made by the impugned order dated 21.6.1979 even after the select list of 37 persons prepared for appointment to 8 posts of Assistant Engineers by direct recruitment was approved by the competent authority on 2.5.1979 Mr. U.R. Lalit did not dispute the factual statement made by Mr. Tarkunde that only Junior Engineers holding Diplomas have been put on Current Duty Charge and appointed on adhoc basis as Assistant Engineers and that not even a single Degree holder Junior Engineer has been chosen for such appointment notwithstanding the above decision taken by the Establishment Board in the meeting held on 17.8.1974 to choose only suitable Junior Engineers with Degree qualification for such appointments. Continuing Current Duty Charge and Adhoc appointments for such a long period exceeding the period of one year mentioned in the said Memorandum dated 30.12.1976 of the Government of India is irregular though that Memorandum could not be stated to be automatically binding on respondent 1, 409 What is totally wrong is that appointment of Junior Engineers on Current Duty Charge as Assistant Engineers has been made by the impugned order dated 21.6.1979 even after the approval of the select list prepared for the appointment of 8 Assistant Engineers without issuing orders for appointment even to 8 out of those persons who are in the select list. In these circumstances we hold that the appointment of 6 Diploma holders Junior Engineers by the order dated 10.4.1978 (Annexure I) and of 2 such Junior Engineers by the order dated 21.6.1979 (Annexure M) as Junior Engineers on Current Duty Charge for periods which are proved to be too long is irregular and we quash the same. Respondent 1 shall issue orders of appointment to 8 Degree holders Junior Engineers out of those in the select list approved on 2.5.1979 within one month from this date and complete the appointment of Assistant Engineers for the remaining posts on regular basis in accordance with the quota fixed in the Recruitment Regulations within six months from this date until which time the Current Duty charge holders and Adhoc appointees according to seniority will continue to man the remaining posts. Respondent 1 shall not make Current Duty Charge/Adhoc appointments and promotions except strictly and truly in accordance with the instructions and Regulations referred to above and other instructions, if any, issued in that regard. The only other prayer about which Mr. V.M. Tarkunde advanced argument is Prayer No. 8 in Writ Petition 1194 of 1979 which is to revise the special pay or planning allowance of Rs. 40 per mensem to Rs. 75 per mensem from 1.1.1979 to Graduate Junior Engineers working in the planning circle. The planning allowance has been revised in the CPWD from Rs. 40 to 75 per mensem in the case of Graduate Junior Engineers w.e.f. 1.1.1979 pursuant to the letter No. 28017 (17) EWI dated 1.1.1979 of the Ministry of Works and Housing (Works Division) addressed to the Director General of Works, CPWD (Annexure ZA). The Commissioner of respondent 1 has stated in his letter dated 20.8.1979 (Annexure ZB) that the Corporation has resolved on 21.6.1971 to sanction special pay to Junior Engineers working in the planning circle at Rs. 40 per mensem in the case of Degree holders and Rs. 25 per mensem in the case of Diploma holders w.e.f. 1.4.1971 and that he had recommended it may be increased from Rs. 40 to Rs. 75 per mensem as had been done by the CPWD w.e.f. 1.1.1979, observing that the Corporation 410 generally follows the pattern prevailing in the CPWD and the original planning allowance itself was sanctioned following that pattern. In Writ Petition 1194 of 1979 it is alleged that arbitrary and illegal treatment is meted out to Graduate Junior Engineers by respondent 1 as borne out by the fact that the planning allowance is not revised from the date from which the Graduate Junior Engineers are entitled to enhancement. In the counter affidavit respondent 1 has stated that the issue regarding revision of the planning allowance to Junior Engineers is still under consideration. Mr. V.M. Tarkunde admitted before us that the revision has since been effected w.e.f. 19.5.1980 whereas the claim of the petitioners in Writ Petition 1194 of 1979 is that it should be revised w.e.f. 1.1.1979. The petitioners in Writ Petition 1194 of 1979 cannot be allowed to blow hot and cold. In regard to the policy of suspension of direct recruitment of Assistant Engineers for 7 years w.e.f. 1.4.1972 their contention is that the policy of the CPWD cannot apply automatically to the Corporation until it is adopted by a resolution. Now in regard to the planning allowance they cannot be heard to say that the revision should be made automatically from 1.1.1979 following the CPWD pattern. Evidently, the Corporation has resolved to grant the upward revision only from 19.5.1980. The petitioners are not entitled to claim the revision from 1.1.1979 itself and they have to be satisfied with the revision effected from 19.5.1980. We shall next consider prayers 3 and 4 in Writ Petition 221 of 1979 which are to quash the seniority list dated 2.9.1978 (Annexure G in Writ Petition 1194 of 1979) and to direct respondent 1 to reckon the seniority of the petitioners with the length of their services. Mrs. Shyamla Pappu stated that the names of the petitioners in Writ Petition 221 of 1979 are not found in that seniority list and that the question of their seniority may be left open. This request was opposed by Mr. G.L. Sanghi who stated that the question itself does not arise for consideration in Writ Petition 221 of 1979. The contention of respondent 1 in its counter affidavit is that the names of Junior Engineers working as Assistant Engineers on Current Duty Charge and Adhoc basis are not mentioned in that seniority list as they are only Junior Engineers who have not been regularly appointed as Assistant Engineers. This contention is correct and has to be upheld. The petitioners in Writ Petition 221 of 1979 are only Junior Engineers whereas the seniority list dated 2.9.1978 relates to Assistant Engineers. It is not the case of the petitioners in writ Petition 221 of 1979 that their seniority as Junior Engineers has not been fixed 411 properly. They are only Junior Engineers and consequently they cannot question the correctness of the seniority list dated 2.9.1978 relating to Assistant Engineers. As they have not yet been regularly appointed or promoted as Assistant Engineers they cannot have any grievance about their names not being mentioned in that seniority list. Therefore, there is no need to quash the seniority list dated 2.9.1978 or to give any direction to respondent 1 as prayed for by the petitioners in Writ Petition 221 of 1979 in regard to seniority. Now we are left only with prayers 4, 6 and 7 in Writ Petition 1194 of 1979 about which rightly no argument was advanced by Mr. V.M. Tarkunde. Prayer No. 4 is to declare the petitioners Graduate Engineers as a separate category amongst Junior Engineers and give them equal quota like the Diploma holders Junior Engineers out of the 50% quota for promotion as Assistant Engineers. This cannot be done except by carrying out two classes in the same category of Junior Engineers on the basis merely of their qualification which is not permissible in law though the creation of selection grade in the same category on the basis of merit and or seniority is well known and permissible. The Junior Engineers do the same kind of work and bear the same responsibilities whatever their qualification, whether they are Degree holders or Diploma holders. In this connection it will be useful to note what this Court has observed in S.B. Patwardhan vs Maharashtra. (1) viz; "Though drawn from two different sources the direct recruits and promotees constitute in the instant case a single integrated cadre. They discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. And yet clause (iii) of Rule 8 provides that probationers recruited during any year shall in a bunch be treated as seniors to the promotees confirmed in that year. This formula gives to the direct recruit even the benefit of his one year 's period of training and another year 's period of probation for the purposes of seniority and denies to promotees the benefit of their long and valuable experience. If there was some intelligible ground for this differentiation bearing nexus with efficiency in 412 public services it might perhaps have been possible to sustain such a classification. We think that the ratio of this observation applies to the facts of this case in regard to prayer No. 4 and that the petitioners in Writ Petition 1194 of 1979 are not entitled to be treated as a separate class of Junior Engineers. Prayer No. 6 is to declare that the petitioners Graduate Junior Engineers in the service of respondent 1 are entitled to be put on par with their counterparts in other Government departments, and prayer No. 7 is to direct respondent 1 to grant revised pay scale of Rs. 550 900 to the petitioners in Writ Petition 1194 of 1979 and other Graduate Junior Engineers as in the case of Graduate Junior Engineers in Class III service in other Government Departments. This scale of Rs. 550 900 is of the selection grade of Junior Engineers. There are 13 selection grade posts in the Engineering Service (Civil) of respondent 1. We think that the petitioners are not entitled to these two reliefs also. The result is that Writ Petition 221 of 1979 fails and is dismissed with costs of the contesting private respondents and Writ Petition 1194 of 1979 is allowed in part in regard to prayers 1, 2, 3 and 5 as indicated above and is otherwise dismissed. The contesting respondents in Writ Petition 1194 of 1979 shall pay the petitioners ' costs. There will be one set of Advocates ' fees in both the Writ Petitions. H.S.K. W.P. No. 221 partly allowed and W.P. No. 1194 dismissed.

The DGS&D, representing the Government of India, had entered into a contract with the appellant firm for supply of some timber. Clause 18 of the standard form of contract, under the head "Recovery of sums due", provided inter alia that whenever any claim for payment of a sum of money arose out of or under the contract against. the contractor, the purchaser shall be entitled to recover such sum by appropriating any sum then due or which at any time thereafter may become due to the contractor under any other contract with the purchaser. Clause 24 thereof provided for arbitration in the event of any dispute arising between the parties. The appellant failed to supply the timber. The DGS&D cancelled the contract, made risk purchases at extra cost and issued notice calling upon the appellant to pay the extra cost incurred and threatening to withhold the amount from the payments due under the pending bills of other contracts. The appellant moved a petition under section 33 of the alleging that there was no concluded contract in existence between the parties, containing any arbitration clause and praying for an injunction restraining the Union of India from appropriating, withholding or recovering the amount claimed from its other bills. The High Court held that under section 41 of the Act it could only grant an injunction restraining the Union of India from appropriating or recovering the amount of damages claimed from the other pending bills of the appellant, and rejected the prayer for grant of injunction restraining the Union of India from withholding payments of the other pending bills. Dismissing the appeal, ^ HELD: 1. Clause 18 of the standard form of contract confers ample power upon the Union of India to withhold the amount and no injunction 608 order could be passed restraining the Union of India from withholding the amount [623 B] (i) The golden rule of construction is that when the words of a statute are clear, plain and unambiguous, that is, they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of the consequences. 'The duty of a judge is to expound and not to legislate a is fundamental rule. If this principle is applied to the interpretation of cl. 18 of the standard form of contract it would be clear that the clause unequivocally contemplates a claim for payment. It does not contemplate the amount due and, therefore, the heading of this clause which talks of only 'Recovery of sums due ' will not control cl. 18. Headings cannot be used to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning of the words. The clause gives wide powers to the Union of India to recover the amount claimed by appropriating any sum then due or which at any time thereafter may become due to the contractor under other contracts. [620 A G] (ii) Clause 18 was slightly differently worded earlier when it read 'whenever under this contract any sum of money is recoverable from and payable by the contractor '. But this formula was deliberately and advisedly altered when the present standard form was introduced by substituting the words 'whenever any claim for payment of a sum of money arises ' and this change in phraseology indicated that in order to attract the applicability of the present cl. 18, it was not necessary that there should be a sum of money due and payable by the contractor to the purchaser, but it was enough if there was a mere claim on the part of the purchaser for payment of a sum of money by the contractor irrespective of the fact whether such sum of money was presently due and payable or not. Even after the change in the language of cl 18 the Union of India cannot be injuncted from withholding the amount under other bills of the contractor. But it can certainly be injuncted from recovering or appropriating it to the damages claimed. [620 H 621A, G] Union of India vs Raman Iron Foundry, [1974] 3 S.C.R. 556 overruled. An injunction order restraining the Union of India from withholding the amount due to the contractor under other pending bills virtually amounts to a direction to pay the amount to the contractor appellant. Such an order was beyond the purview of cl. (b) of section 41 of the . [621 H 622 A] (i) Clause(b) of section 41 confers power on the court to pass orders in respect of any of the matters set out in the Second Schedule which inter alia includes `interim junction '. But this power to pass an order of injunction can only be excercised 'for the purpose of and in relation to arbitration proceedings ' before the Court. [61 5H] In the instant case the proceedings before the Court were pursuant to an application made under section 33 of the Act in which the appellant had taken the stand that there was no concluded contract between the parties containing an arbitration clause. Therefore, it is difficult to say that the 609 application for injunction moved by the appellant was for the purpose of and in relation to arbitration proceedings. That apart, the amount due to the appellant under the pending bills was not the subject matter of the present proceedings and, therefore, the injunction order restraining the respondent from withholding the amount due to the appellant under the pending bills in respect of other contracts could not be said to be for the purpose of and in relation to the present arbitration proceedings. [616 A, C, 617 A B] Union of India vs Raman Iron Foundry [1974] 3 S.C.R. 556, referred to. Mohan Meaken Breweries vs Union of India, A.I.R. 1975 Delhi 248, approved. (ii) The contention that cl. (a) of section 41 makes the Code of Civil Procedure applicable to all proceedings before the Court and to all appeals under the Act and, therefore, the appellant was entitled lo invoke o. 39 of the Code to get an injunction order even if the conditions of cl. (b) of section 41 were not satisfied cannot be accepted. Clause (a) of section 41 makes only the procedural rules of the Code applicable to the proceedings in court under the . This clause does not authorise the court to pass an order of injunction. If the above contention is accepted, appeals would lie under sections 96, 100 or 104 of the Code. But the Act itself provides for appeal under section 39. Besides, if cl, (a) of section 41 gave wide powers to pass all order of injunction, cl. (b) of section 41 would become otiose. [616 D F] (iii) If an order injuncted a party from withholding the amount due to the other side under pending bills in other contracts, the order necessarily means that the amount must be paid. It will be a contradiction in terms to say that a party is injuncted from withholding the amount and yet it can withhold the amount as of right. In any case if the injunction order is one which a party was not bound to comply with, the Court would he loath and reluctant to pass such an ineffective injunction order. In injunction order is passed only for the purpose of being carried out. [618 D E] Union of India vs Raman lron Foundry, [1974] 3 S.C.R. 556; observations to the contrary held inconsistent with the law laid down in the case.

tition (Criminal) Nos.277 80 of 1989. (Under Article 32 of the Constitution of India). R.B. Mehrotra for the Petitioners. U.N. Bachhawat, Uma Nath Singh and N.N. Johri for the Respondents. The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J. Two important questions arising for consideration in the above matter are: 1.Whether the petitioners 1 and 2 have been illegally detained from 21.5.1989 to 1.8.1989 without any order of remand? 2. Whether the petitioners 1 to 3 on being arrested were subjected to torture and treated in a degrading and inhuman manner by handcuffing and parading them through the public thorough fare during transit to the Court in utter disregard to 874 the judicial mandates declared in a number of decisions of this Court and whether they are entitled for compensation? The salient and material facts as set out in the Writ Petitions are as follows: The petitioners are social workers and Members of Kisan Adivasi Sangathan ', Kerala. The said 'Sangathan ' is actively working against all kinds of exploitation purported against the local farmers and tribal people in the district of Hoshangabad. In villages of Morpani and Madikhoh of Hoshan gabad District there was only one school teacher employed in the Morpani school. The teacher was not attending the school for the last one and half years. Inspite of several com plaints lodged against the teacher, the authorities did not pay any attention in this regard. Therefore on 27/28.7.1988, the petitioners 1 to 3 along with a large number of tribal women and children staged a peaceful 'dharna ' in front of the office of Block Education Officer, Kesala demanding appointment of two regular teachers in the schools located in tribal hamlets. The Assistant District Inspector of Schools gave an assurance in writing stating that he would make enquiries and initiate action in this regard. But to the petitioners ' dismay, the local police initiated criminal proceedings against the petitioners 1 to 3 and one old Adivasi widow aged about 65 years who was not paid her wages by the said teacher, for an offence punishable under Section 186 IPC on the allegations that the petitioners and the Adivasi woman have obstructed public servants in discharge of their public functions. In connection with the said criminal proceeding, the petitioners were arrested, abused, beaten and taken to the Court of 1st Class Judicial Magis trate, Hoshangabad by handcuffing them. It seems that the petitioners when questioned refused to tender apology or repent for their conduct but tried to justify their action of having staged the dharna for a legitimate cause. The Magistrate convicted the petitioners 1 to 3 and sentenced them to undergo simple imprisonment for a period of one month while acquitting the woman. It is stated that even after the pronouncement of the judgment, the police once again abused them, made obscene gestures, beat and took them to the penitentiary handcuffed. The fourth petitioner was arrested in connection with the peaceful dharna on 25.11.1987 before the office of the Block Education Officer, Kesala and put behind the bars. A warrant was said to have been issued against the second petitioner directing him to appear before the Magistrate on 8.5. 1989 in connection with some other false case. According to the petitioner, they all were working for the welfare of the weaker sections and down trodden people in 875 a peaceful manner but they were inhumanly treated against all norms of decency by the police in utter disregard of the repeated and consistent mandates of this Court and in utter violation of their fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India. There after, the petitioners filed Criminal Miscellaneous Petition Nos.282 1 24 of 1989 in the above writ petitions for im pleading the Superintendent, District Jail and the 1st class Magistrate, Hoshangabad as additional respondents and to treat the additional facts as part of the main writ petitions. The additional facts are as follows: The petitioners 1 and 2, namely, Sunil Gupta and Raj Narain though have served their one month imprisonment from 22.4.1989 to 21.5.1989 they were not released from the jail but continued to be detained on the allegation that they were wanted in two more cases, namely, in Case No. 470 of 1988 registered under Section 341 read with Section 34 IPC pending in the .Court of 1st Class Magistrate, Hoshangabad and another in a case registered as Criminal Case No. 569/88 against the two petitioners and others under Section 353, 148 and 149, IPC. The Court proceedings disclosed that the Magistrate issued bailable warrants as against the petition ers 1 and 2 and continued the same by issuing repeated orders of bailable warrants in a very mechanical and casual manner and without application of mind from 26.5.1988 to 17.2.1989. Even after the two petitioners have been sent to jail in pursuance of their conviction for the offence under Section 186 IPC, a number of incorrect nothings were made in the records of the courts as if both the petitioners were pro duced from jail. Even after the expiry of the sentence, the Magistrate had not cared to proceed with the case and to know as to why petitioners 1 and 2 were languishing in jail. In connection with the second case, petitioner No. 3, Puru shottam Nayak was also remanded but later on released on bail on 26.4.1989. The Counter affidavit is filed by one R.K. Shivhare, the then SHO (Police), Itarsi, Hoshangabad District on behalf of the respondents giving a detailed version about the incident leading to the registration of various cases and justifying the conduct of the police officials in handcuffing the petitioners. Alongwith this affidavit, he has filed Annex ures I to VI. He justifies the action of the police stating that the petitioners on pronouncement of their conviction, got agitated, turned violent and shouted slogans inside the Court which necessitated the escort police to handcuff the petitioners. He cites Madhya Pradesh Police Regulation para No. 465(1) as per which if the escort in charge 876 feels the necessity of handcuffing persons, he is empowered to do so. However, he denies allegations of torture, obscene gestures etc. A copy of the police report dated nil and without dis closing the author of the same is filed stating that while first and second petitioners were taken to the prison on their conviction, they turned violent not only inside the Court but also outside the Court and they were taken to the orison with the help of other members of the police force. The Deputy Superintendent of Police, Headquarters, Hoshanga bad has filed a separate counter affidavit denying the allegations made in the writ petition. A rejoinder is filed by the first petitioner reiterating his earlier stand and annexing certain newspaper clippings and some other docu ments inclusive of the copy of the judgment of the IInd Additional Sessions Judge, Hoshangabad made in Criminal Appeal No. 59 of 1989 setting aside the conviction of the petitioners recorded by the Judicial Magistrate for the offences under Section 186 IPC, and acquitting the petition ers of the said offence. Head Constable No. 66, who was incharge of the escort party has sworn to an affidavit stating that the petitioners 1 and 2 were taken to the jail on being handed over by the Court after their conviction and they took them to the prison by handcuffing them under a bona fide belief that the situation might become worse. He also cites paragraph 465(1) of the M.P. Police Regulation in support of his action of putting the petitioners 1 to 3 under shackles. One other supporting affidavit is also filed by a constable of the escort party. It seems that a Sub Inspector of CID made an enquiry on a petition regarding the handcuffing of petitioners 1 and 2 and submitted his report to the Superintendent of Police. The relevant portion of the report reads as follows: " . .And the Court called the police guard and as per Court 's direction the three accused were handcuffed and kept in the lock up, later on the Court again called all the three accused persons to the Court where Purushottam Nayak was released on bail . . . . . It was found on enquiry that the appellants Sunil and Rajnarayan were sentenced to one month imprisonment each under Section 186 IPC in the Court of Shri Chand Soria and police guards under the order of the honourable court handcuffed the appellants in the court itself and lodged them in jail. The appellants say that they should not have been handcuffed but the guards had no other instruction to the contrary in this regard. " 877 From the writ petition, counter affidavits and rejoinder affidavit, we are able to gather certain facts, they being: 1.A case in Crime No. 80/87 under Sections 147, 341 was registered against the petitioners along with some others on 11.12.A case in Crime No. 86/87 under Section 353, 323, 332 read with Sec.34 IPC was registered against the petitioners on 25.11.87 by Kesala police. A case in Crime No. 87/87 under Section 34 1 read with Sec.34 was registered against the petitioners on 25.11.1987 itself. This case was tried in criminal case No. 470/88 which ended in conviction and the petitioners were released on probation on 11.7. A case in Crime No. 52/88 under Section 186 and 447 was registered on 28.7.1987 by Kesala police which case was tried as case No. 58/88 on the file of the Judicial Magis trate 1st Class, Hoshangabad which ultimately ended in conviction. This conviction has been set aside by the appellate Court. It is stated that the petitioners 1 and 2 were avoiding warrants of arrest in Crime Nos. 86/87 and 87/87. It seems that a number of cases were registered against the petition ers 1 and 2 and both of them did not avail bail and they were in prison. In this connection, we would like to dispose of the Criminal Miscellaneous Petition Nos.2821 24 of 1989. As we are not satisfied that the Superintendent of Jail and the Magistrate are necessary parties for disposal of these writ petitions, these petitions are dismissed. According to Mr. R.B. Mehrotra, the learned counsel for the petitioners, the sentence of imprisonment for a period of one month imposed on petitioners 1 and 2 for the offence under Section 186 IPC expired on 21.5.1989 and, therefore, their subsequent detention till 1.8. 1989 was unauthorised and illegal. A perusal of the materials placed on record, it is seen that the case in crime No. 87/87 was registered as criminal case No. 470/88 and it came to an end on 11.7.89 when the petitioners were released on probation. The case in crime No. 86/87 was registered as criminal case No. 569/89. There were 8 accused in that case inclusive of these two petitioners who were 878 arrayed as accused Nos. 3 and 4. This case went on for several adjournments on the ground that one or other accused was either not produced before the Court or not appeared on the hearing date. However, on 1.8.1989 the first petitioner was released on his personal bond as per the orders of this Court. On 11.8.1989, the case was adjourned to 21.8. 1989 for further proceedings. Though notes of the case diary, copies of which are filed before us, are not very clear as to the reasons of repeated issue of warrants yet we find that these petitioners were under remand in both the cases namely criminal case Nos.470/88 and 569/88. Though the petitioners were released on probation in criminal case No. 470/88 yet on 11.7.1989 the petitioner No. 1, namely, Sunil Gupta was in jail in case No. 569/89 till he was released under the orders of this Court. It is not the case of the petitioners that any complaint was made before this Court in the previous occasion when their release was sought for that they were in prison without orders of remand or that this Court made any observation about it. Under these circum stances, we do not see any force in the contention that the petitioners were illegally detained till 1.8. 1989. Accord ingly, the first question is negatived and answered against the petitioners. Next, we shall examine whether petitioners 1 to 3 were subjected to all kinds of humilitation by being abused, beaten up and ultimately handcuffed. At the threshold, it may be noted that the writ petition is filed by Mr. R.B. Mehrotra, Advocate for the petitioners whose registered clerk has filed an affidavit of verification. The following averments are made in the writ petition: "That the petitioners were beaten, abused and they were taken handcuffed to the Court of Shri Chansoria, Judicial Magistrate 1st Class, Hosangabad" (vide paragraph 6). "They had been handcuffed and were beaten by the police on number of earlier occasions for holding peaceful dharna and for making representations on behalf of the tribal people" (vide paragraph 10) " That the authorities have caused injuries, physical pain, mental agony and insult to the petitioners" (vide paragraph 13) "That the petitioners have suffered grave mental agony, insult and physical pain at the hands of the police and the local authorities". (vide paragraph 14) 879 The above allegations are stoutly refuted on behalf of the respondents. However, the complaint of handcuffing is not denied and that action of the escort police is attempted to be justified mainly on the following grounds: 1.After pronouncement of the judgment in criminal case No. 248/88 arising out of crime No. 52/88 registered under sections 186 and 447 IPC, the petitioners 1 to 3 on their conviction got agitated, turned violent and shouted slogans outside and inside the Court and in such turbulent circum stances, the escort party felt that it was necessary to handcuff the petitioners. Paragraph 465(1) of Part III dealing with escorting of arrested and convicted persons (including political persons) falling under Chapter VII of Madhya Pradesh Police Regula tions captioned 'Protection and Escort ' empowers the escort police to handcuff the arrested or convicted persons if the escort police feels the necessity. It has been reported by the Jail Superintendent that in several cases the under trial prisoners have run away from police custody while being taken from jail to Court or vice versa. Before scrutinising the material in regard to the com plaint of handcuffing, we shall dispose of the allegations of abuse, obscene gestures, beating and torture etc. At the cost of repetition, it may be stated that all those allega tions except the handcuffing are denied. Sunil Gupta, the first petitioner has filed an additional reply affidavit dated 8th July 1989 in which there is no allegation about the alleged torture, abuse, obscene gestures etc. In his rejoinder affidavit filed in September 1989 by Sunil Gupta himself while referring to the incident relating to Criminal Case No. 569/88, he has stated. "We are doing only peaceful picketing. On this police and the Gundas of the ruling party came and we were beaten by the police and Gundas of ruling party and were forcibly removed from the Block Office. " Barring that, there is no allegation of abuse and obscene gestures etc. In view of the conspicuous omission in both the affidavits filed by Sunil Gupta, we see no force in the complaint that the police abused, tortured and made obscene gestures etc. 880 The only remaining complaint to be considered is in regard to the handcuffing. We have already mentioned in the preceding part of the judgment the reasons given by the respondents in justification of the conduct of the escort party in putting menacles on the petitioners 1 and 2. With regard to the reasons assigned by the police, Sunil Gupta in his additional affidavit has stated thus: "This act is incorrect, firstly neither myself nor Raj Narain did shout any slogan in the Court though I was hand cuffed in the Court itself but the handcuffing was not done with the consent of the Magistrate nor it was done under his direction. Raj Narain was taken to jail on 21st April, 1989 and was brought in the Court on 22nd April 1989 under hand cuffs from the jail itself to Court lock up and then taken under handcuffs in the Court itself in the presence of the Magistrate. " Coming to the Regulation relied upon by the police, we would like to reproduce the relevant instructions of the Madhya Pradesh Police Regulation hereunder for proper under standing the plea of justification. 'M.P. Police Regulation CHAPTER VII Protection and Escort Part III Escorting of the arrested and convicted per sons (including political persons) 465. When to use handcuffs Handcuffing will be resorted to only when it is necessary. Its use will be regulated by following instructions. Instructions regarding use of handcuffs (1) When a prisoner is to be taken from court to jail or jail to court in the custody; the Magistrate or the Jail Superintendent should give instructions in writing as to whether the prisoner will be handcuffed or not and the escort commander will follow the instructions but when 881 the instructions are for not to handcuff the prisoner and thereafter, due to some reasons if the escort commander feels that it is necessary to handcuff the prisoner, he should do so inspite of the instructions to the contrary. (2) (1) . . . (3) The escort commander should ask and obtain orders in writing without fail, regarding handcuffing of prisoners, from the Magistrate or the Jail Superintendent before taking into custody the prisoner for escorting from the court or the jail. Strict action should be taken against any disobe dience of this instruction. " Undeniably, the escort party neither got instructions nor obtained any orders in writing from the Magistrate or the Jail Superintendent regarding handcuffing of petitioners 1 to 3 as found under the above instructions (1) and (2). The escort commander has also not noted any reason for handcuffing the petitioners on 22.4.1989, on the other hand in the letter dated nil annexed to the counter of S.H.O., no mention of handcuffing is made at all. Let us examine whether the plea of justification is supported by the materials placed before this Court. Nand Lal Sharma (Head Constable No. 66), who presumably headed the escort party has not stated in his affidavit that he got instructions in writing, either from the Magistrate or from the Jail Superintendent to bind the petitioners 1 to 3 in fetters. Nowhere, in his affidavit he swears that he handcuffed the petitioners 1 to 3 either under the orders or directions of the Magistrate. Even the counter affidavit filed by Shivhare, S.H.O. of Itarsi Police there is no averment that the Magistrate directed the escort party to handcuff the petitioners 1 and 2. For the first time, only in the report dated 10.7.1989, the relevant portion of which is extracted above, it is submitted by the Sub Inspector, CID to the Superintendent of Police, Hosangabad that the handcuffing was under the direction of the Court. However, in the copies of the daily diary of the 'date 22.4.1989, it 882 is mentioned that the Head Constable Nand Lal Sharma and the constables of his escort party have been ordered to produce the accused to the Court from the jail after handcuffing them and they were further ordered to take the chains be sides handcuffs from the armoury. These entries are purport ed to have been made one at 10.05 A.M. and another at 5.15 P.M. There is a specific entry in the said daily diary that the escort party had produced the three accused before the Court after handcuffing them. It seems that certain state ments were also recorded from petitioners 1 and 2 on 4.7. 1989 and 5.7.1989. One, Jasbir has filed reply affidavit submitting that the petitioners 1 and 2 were handcuffed 'within the court room without there being any occasion for the same ' and 'the Magistrate never endorsed or directed their handcuffing '. The petitioners have produced two photo graphs showing that the left hand of one person and the fight hand of another person are bound in fetters with a leading chain. In one of the photographs, yet another person standing behind these two persons is also found handcuffed with a leading chain. A number of persons inclusive some police officials also found standing nearby indicating that these petitioners 1 to 3 have been publically handcuffed. This handcuffing of petitioners 1 to 3 with the leading chains might not relate to the admitted handcuffing of these petitioners on 22.4.1989 while they were being taken from the prison to the Court and from the Court to the prison because the close examination of these photographs reveal that the handcuffing of these three persons should have been on a thorough fare. Though neither the enquiry report dated 10.7.89 of the Sub Inspector of CID nor the counter affida vits filed by the SHO, Head Constable and Constables disclose either about the handcuffing of these three petition ers earlier to 22.4.1989 or about the handcuffing of these petitioners while being taken to Court from the jail. We are very much distressed the way in which the respondents have come forward to explain their conduct of handcuffing of these three petitioners while being taken from the Court to the jail but make no whisper about the handcuffing from jail to Court. This Court on several occasions has made weighty pro nouncements decrying and severely condemning the conduct of the escort police in handcuffing the prisoners without any justification. Inspite of it, it is very unfortunate that the Courts have to repeat and re repeat to disapproval of unjustifiable handcuffing. As is pointed out by Krishna lyer, J. speaking for himself and Chinnappa Reddy, J. in Prem Shankar Shukla vs Delhi Administration. ; , this kind of complaint cannot be dismissed as a daily sight to be pitied and buried but to be examined from funda mental view point. In the same 883 judgment, the following observation is made with regard to handcuffing: "Those who are inured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human digni ty, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21 spring into action when we realise that to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very person hood, too often using the mask of 'dangerousness ' and security." . . "Handcuffing is prima facie inhuman and, therefore, unrea sonable, is over harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons ' is to resort to zoological strategies repugnant to Article 21. Thus, we must critically examine the justifica tion offered by the State for this mode of restraint. Sure ly, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised. To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis?" Chinnappa Reddy, J. in Bhim Singh, MLA vs State of J & K and Others, has expressed his view that police officers should have greatest regard for personal liberty of citizens in the following words: "Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct. " See also Maneka Gandhi vs Union of India and Another,[1978]1 884 SCC 248; Sunil Batra vs Delhi Administration and Others, ; and Sunil Batra (II) vs Delhi Administra tion; , Coming to the case on hand, we are satisfied that the petitioners are educated persons and selflessly devoting their service to the public cause. They are not the persons who have got tendency to escape from the jail custody. In fact, the petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause. The offence for which they were tried and convicted under Section 186 of Indian Penal Code is only a bailable offence. Even assuming that they objected public servants in dis charge of their public functions during the 'dharna ' or raised any slogan inside or outside the Court, that would not be sufficient cause to handcuff them. Further, there was no reason for handcuffing them while taking them to Court from jail on 22.4.89. One should not lose sight of the fact that when a person is remanded by a judicial order by a competent Court, that person comes within the judicial custody of the Court. Therefore, the taking of a person from a prison to the Court or back from Court to the prison by the escort party is only under the judicial orders of the Court. Therefore, even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and intimate the Court so that the Court considering the circumstances either approve or disapprove the action of the escort party and issue necessary directions. It is most painful to note that the petitioners 1 and 2 who staged a 'dharna ' for public cause and voluntarily submitted them selves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party is against all norms of decency and which is in utter violation of the principle underlying Article 21 of the Constitution of India. So we strongly condemn this kind of conduct of the escort party arbitrarily and unrea sonably humiliating the citizens of the country with obvious motive of pleasing 'some one '. For the discussion made above, we have no compunction in arriving at a conclusion that in the present case, the escort party without any justification had handcuffed the petitioners on 22.4.1989 on both occasions i.e. when taking the petitioners 1 and 2 from the prison to he Court and then from the Court to the prison. Hence, we direct the Govern ment of Madhya Pradesh to take appropriate action against the erring escort party for having unjustly and unreasonably handcuffing he petitioners 1 and 2 on 22.4.89 in accordance with law. 885 As has been pointed out supra, the copies of the photo graphs produced before this Court clearly reveal that three persons evidently the petitioners 1 to 3 have been hand cuffed with leading chains. We are not able to arrive at a correct conclusion as to when, where and under what circum stance this had happened. Therefore, we further direct the Government of Madhya Pradesh to initiate an enquiry in this matter and to take appropriate action against the erring officials. Lastly, with regard to the prayer of claim for suitable and adequate compensation, we observe that it is open to the petitioners to take appropriate action against the erring officials in accordance with law, if they are so advised, and in that case, the Court in which the claim is made can examine the claim not being influenced by any observation made in this judgment. In the result, the writ petitions are disposed of sub ject to the observations made above. R.S.S. Petitions disposed of.

The petitioner filed a writ petition in this Court under Article 32 of the Constitution of India by way of public interest litigation seeking directions for (i) inquiry against police officials under whose jurisdiction the malady of forced prostitution, Devdasi system and Jogin traditions were flourishing and (ii) for rehabilitiation of the victims of this malady. Disposing the writ petition, this Court. HELD: 1. The malady of prostitution is not only a social but also a socio economic problem and, therefore, the meas ures to be taken in that regard should be more preventive rather than punitive. This cannot be 862 eradicated either by banishing, branding, scourging or inflicting severe punishment on the helpless and hapless victims most of whom are unwilling participants, and invol untary victims of compelled circumstances and who, finding no way to escape, are weeping or wailing throughout. This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers. [867D; E G] 2. In spite of the stringent and rehabilitative provi sions of law contained in Constitution of India, 1950, the Immoral Traffic (Prevention) Act, 1956, Indian Penal Code, 1860 and the Juvenile Justice Act, 1986, it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callous ness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring the most rational measures to weed out the vices of illicit trafficking. [867C D] 3. The Courts also in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences. However, it is neither practica ble and possible nor desirable to make a roving enquiry through the C.B.I. throughout the length and breadth of the country. and no useful purpose will be served by issuing any such direction. [867G; 867E] 4. Apart from legal action, both the Central and the State Governments have got an obligation to safeguard the interest and welfare of the children and girls of this country. [867H] Lakshmi Kant Pandey vs Union of India, and Guarav Jain vs Union of India & Ors. , ; , referred to. All the State Governments and the Governments of Union Territories should direct their concerned law enforc ing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference. They should also set up separate Advisory Committees for making suggestions for eradication of prosti tution, implementation of the social welfare programmes for the care, protection, treatment, development and rehabilita tion of the victims, and for 863 amendments of the existing law, or for enactment of any new law for prevention of sexual exploitation of the children. These Governments should also devise a machinery for ensur ing proper implementation of the suggestions of their re spective committees. [868D H; 869A E]

Appeal No. 49 of 1965. Appeal by special leave from the order dated January 14, 1964 of the Punjab High Court in Letters Patent No. 11 of 1964. section Y. Gupte, Solicitor General and Naunit Lal, for the appellant. Hardev Singh, section P. Nayar for R. N. Sachthey, for the res pondents. The Judgment of the Court was delivered by Shah, J. The appellant Vidya Vati who is the owner of 56.10 1/4 standard acres of agricultural land in the village Bishanpura, tahsil Jind, District Sangrur, in the State of Punjab, was ousted from the land sometime in 1954 by certain persons who had no tide to the land. A civil suit filed by her for it declaration of titleand for possession of the land from the trespassers was decreed and she was restored to possession of the land on October 15, 1960. The Pepsu Tenancy and Agricultural Lands Act 13 of 1955 was brought into force during the pendency of the civil suit with effect from March 4, 1955. Under section 5 of the Pepsu Act 13 of 1955 every landowner owning land exceeding thirty standard acres was entitled to select for personal cultivation from the land held by him in the State as a landowner any parcel or parcels of land not exceeding in aggregate area the permissible limit and reserve such land for personal cultivation by intimating his selection in the prescribed form and manner to the Collector. Since the land was in the occupation of the trespassers, the appellant 648 did not make any selection of land for personal cultivation. The, Act was amended with effect from October 30, 1956 by the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act 15 of 1956 and thereby, amongst other provisions, Ch. IV A was added. The provisions contained in that Chapter were designed to impose a ceiling on the holding of owners and tenants of agricultural land held for personal cultivation within the State and for imposing restrictions on acquisition of land and disposal of surplus ' area. In respect of the land owned by her the appellant submitted a return in Form VII A prescribed under the Rules framed under the Act. The Collector of the District after considering the objections of the appellant, declared that she held 21.14 3/4 standard acres in excess of the ceiling prescribed by the Act. The order of the Collector was confirmed in appeal to the Commissioner, Patiala Division. A petition moved by the appellant under articles 226 & 227 of the Constitution for the issue of a writ quashing that order was rejected by Gurdev Singh, J., and an appeal against the order was summarily dismissed by a Division Bench of the High Court. The appellant appeals to this Court with special leave. Counsel for the appellant contends that the provisions of Ch. IV A have no application to the case of the appellant, since she was not in "cultivatory possessions of the land on the appointed date i.e. October 30, 1956; that the appellant has not acquired the land by transfer, exchange, lease, agreement or settlement, or by inheritance, bequest or gift front a person to whom she is an heir, and on that account sections 32 L & 32 M of the Act have no application to her case and that in any event the appellant should have been permitted to reserve out of her holding ten acres of land for an orchard under section 32 K of the Act. Before considering the merit of these contentions it is necessary to notice the relevant provisions in Ch. IV A of the Act which imposed a ceiling on holding of agricultural land under personal cultivation. Section 32 A(1) of the Act provides: "Notwithstanding anything to the contrary in any law custom, usage or agreement, no person shall be entitled to own or hold as landowner or tenant land under his presonal cultivation within the State which exceeds in the aggregate the permissible limit. " Counsel for the appellant contends that section 32 A(1) operates only at the point of time when the Act comes into force i.e. October 30, 1956, and not thereafter. If on that date, says counsel, a person owns or holds within the State land under his personal cultivation as landowner or tenant in excess ' of the permissible limit, the State is entitled to take away the surplus land, and that if the holder or tenant after the commencement of Act 15 of 1956 acquires or possesses land by transfer, exchange, lease, agreement 649 or settlement, or acquires it by inheritance, bequest or gift from a person to whom he is an heir, and his total holding exceeds the permissible limit, by express provisions contained in sections 32 L and 32 M the ceiling on holding will be enforced, but where an owner of land for whatever reasons brings under cultivation land of his ownership. after the commencement of the Act, the provision imposing a ceiling does not operate. The entire argument is raised on an assumption that section 32A(1) operates only at the date on which the Act was brought into operation; that argument, in our judgment, is contrary to the plain terms of section 32 A(1). It is true that sections 32 L and 32 M expressly deal with certain classes of acquisitions after the date of the commencement of the Act, but on that account no restriction may be imposed upon the connotation of the expression "no person shall be entitled to own or hold" occurring in section 32 A, that it is limited in its operation to the point of commencement and has no operation in the future. It may be noticed that section 32 L renders all subsequent acquisitions as a result of which the holding of a person of land under his personal cultivation exceeds thirty acres "null and void", and section 32 M which deals substantially with involuntary acquisitions (such as acquisitions by inheritance or bequest) sets out the machinery for making declarations and the manner in which the land in personal cultivation in excess of the ceiling will be dealt with. By an appropriate drafting device, it may have been possible to dovetail these provisions into the other sections, but if in the interest of clarity certain specific cases are separately dealt with, an intention to restrict the operation of the general provision contained in section 32 A(1) cannot be implied. The scheme of Act 13 of 1955 as originally enacted was that by section 5 every landowner owning land exceeding thirty standard acres was required to select for personal cultivation from the land held by him as a landowner any parcel or parcels of land not exceeding in aggregate area the permissible limit and reserve such land for personal cultivation. The selection could be made in respect of land under personal occupation as well as in respect of land in the occupation of tenants. After making the selection, the landowner could take appropriate steps to evict the tenants from that land. But in the land in the possession of the tenants and not included in the land selected and reserved under section 5 for personal cultivation, the tenant of the land could acquire proprietary rights in the manner and subject to the conditions provided under section 22. This right was exercisable by the tenant in respect of land which was not selected for personal cultivation by the owner and in respect of which he was not liable to be evicted. The scheme of the Act, therefore, was that the landowner was entitled to select for personal cultivation from the land held by him within the State any parcel or parcels of land not exceeding in the aggregate the permissible limit. If the land so 650 selected was in the possession of a tenant he could. subject to the. restrictions contained in section 7 A, evict the tenant. The lands which were not selected for personal cultivation by the landowner could be purchased by the tenant in the manner and subject to the conditions provided in section 22. The Legislature thereafter modified the scheme of the Act and, incorporated Ch. IV A under which no person could own or hold land either as landowner or, as tenant in excess of the permissible limit. The excess was to be treated as surplus land and appropriated to the State. Whereas under the scheme of Chapters 11, III and IV as they originally stood the tenants were given the right to purchase the lands not selected by the landowner for personal cultivation, but the landowner was otherwise subject to no further restrictions; by Ch. , V A it was intended to place a ceiling upon the owning or holding of land for personal cultivation by a landowner or a tenant in excess of the permissible limit. Viewed in the light of that scheme, also, it is impossible to construe section 32 A as being operative only at the point of time at which the Amending Act incorporating Ch. IV A was brought into force, for the words of the section contain no limitation, and the scheme of the Act indicates no such implication. It is true that under section 32 B every person who owns or holds as landowner or tenant land under his personal cultivation exceeding the permissible limit at the commencement of the Act is required to make a return in respect of his holding. But that is enacted with a view to provide machinery for effectuating the provisions imposing the ceiling on land held at the date of commencement: it does not even indirectly suggest that section 32 A is limited in its operation to the point of time at which the Act is brought into force and is spent thereafter. Failure on the part of the Legislature to deal with cases in which it the date on which the Act was brought into force, the owner or holder of land was not cultivating the land because he was not in cultivatory possession thereof but was restored to his possession during the subsistence of the Act, cannot also be used to limit the operation of section 32 A(1) only to the point of time at which the Act was brought into force. In our judgment the ban imposed by section 32 A operates whenever he is found to own or told land in personal cultivation exceeding the permissible limit. Section 32 K provides for exemption of lands used or intend ed to be used for certain specified purposes to the extent indicated from the ceiling imposed by section 32 A(1). By cl. (vi) of section 32 K(1) it is provided that the provisions of section 32 A shall not apply where a landowner gives an undertaking in writing to the, Collector that he shall, within a period of two years from the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, plant an orchard in any area of his land not exceeding ten standard acres, such area of land. 651 Sub section (2) of section 32 K provides that where a landowner has, by an undertaking given to the Collector, retained any area of land with him for planting an orchard, and fails to plant the orchard within a period of two years referred to in cl. (iv) of sub section (1), the land so retained by him shall on the expiry of that period vest in the State Government under section 32 E. It is also provided by sub section (3) which was added by Punjab Act 27 of 1962 with retrospective effect from October 30, 1956, that notwithstanding anything contained in the Act, the exemption specified in cl. (vi) of sub section (1) shall not be allowed unless the land planted within the period specified therein is found to be an orchard also at the time of granting the exemption. In order to qualify for exemption from the ceiling to the extent of ten acres for the purpose of planting an orchard, the landowner has to give an undertaking that he will bring the land within two years from the commencement of the Amending Act under an orchard, and has to plant the orchard within that period and to maintain it as an orchard till the date of the grant of exemption. A person who is not in possession of the land at the date when the Amending Act is brought into force may not ordinarily be in a position to give an undertaking under cl. (vi) of section 32 K(1) to bring the land under an orchard, since such a person may not be able to say whether he will be able to obtain possession of the land so as to carry out the undertaking. The Legislature has failed to make a provision enabling reservation to be made by persons belonging to the ex ceptional class to which the appellant belongs. But on that account the Court is not competent to refuse to give effect to the plain words of the Act. A lacuna undoubtedly exists in the Act, but it is for the Legislature to rectify it and not for the Courts to give a strained meaning to the words used by the Legislature which they do not bear. The expression "within a period of two years from the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956" cannot be read as "within two years from the date on which the holder or tenant is restored to possession". The Legislature has not made any provision for extending the time in respect of certain special cases like the one before us, or extending the time for planting an orchard. The High Court was, therefore, right in holding that the appellant could not claim an additional area of ten acres of land for planting an orchard. The appeal therefore fails. There will be no order as to costs.

A property was conveyed to the respondent Municipality by a deed "for the purpose of Sarvajanik Kam (public purpose) as it has been utilised uptodate for shelter of Atit, Abhyaqat, Sadhu, Sant, etc.". It was also recited in the deed that in the property conveyed there was "a Samadhi (grave) of Nagabawa. " The Municipality entered possession and made certain constructions which were used for its offices and for shops. Thereafter, the Municipality sued for a decree for delivering possession of a part of the property against a Sadhu who had unlawfully. occupied it and the suit was decreed. Later, in survey proceedings members of the Johari Panch claimed that they had entrusted their temple to the Municipality for administering it for the community, but the compound belonged to them and that the Municipality was merely a trustee thereof. The Secretary of the Municipality admitted that in the property there existed a temple of the Joharis and that the members of that community had the right to visit the temple at fixed times but that they had no other right. The Survey Officer declared the Municipality to be the owner of the property and not a trustee for the Johari Panch. Thereupon, an application under section 19 of the Bombay Public Trusts Act was filed for a declaration that the property was settled in favour of the Municipality for the benefit of the Johari Panch and that the property be registered as property of a public trust under the Act. The Charity Commissioner declared that there was a public trust, that the Municipality was the trustee thereof, and that the property was transferred in the Municipality for the benefit of members of the public interested in the Samadhi of Nagabawa; but he held that there was no such institution known as Johari Panch and that the property had not been used for the benefit of that community. In appeal, the District Court set aside the order of, the Charity Commissioner. The Charity Commissioner appealed to the High Court, which reversed the order of the District Court and restored the order of the Charity Commissioner. In appeal, this Court, Held: The appeal must fail. (i) The property was entrusted to the Municipality for providing shelter to sadhus, saints and religious mendicants. the purpose was religious and charitable within the meaning of section 2 (13) of the 653 Bombay Public Trusts Act. The trust was not limited to the buildings standing on the land; but extended to the entire property. Sadhus, religious mendicants and visitors to the Samadhi of Nagabawa are a section of the public. They have a common bond of veneration for the Samadhi. The beneficiaries of the trust are an uncertain and fluctuating body of persons forming a considerable section of the public and answering a particular description, and the fact that they belong to a religious faith or a sect of persons of a certain religious faith or a sect of persons of a certain religious persuasion does not make any difference in the matter. [660 A C]. Mahant Ram Saroop Dasji vs section P. Sahi [1959] Suppl. 2 S.C.R. 583 followed. (ii) After the transfer of the property was accepted by the Municipality for the purpose mentioned in the deed it was not open to the Municipality to divert the use of that property for its own purposes. There is nothing in Act 6 of 1873 or in the general law which prevents a Municipality from accepting a trust in favour of a section of the general public in respect of property transferred to it. Nor does the Act authorise a Municipality, after accepting a trust, to utilise it for its own purpose in breach of the trust. [657 B C; 658 C]. (iii) The contention, that once it was found that the property was not for the benefit of Johari Panches, the application should have been dismissed, had no force. The proceedings were commenced under section 19 of the Bombay Public Trusts Act, and it was open to the Charity Commissioner to determine whether a public trust existed, and if the Charity Commissioner was satisfied that there existed a public trust, whatever may be the claim made by the applicants, the Charity Commissioner was bound to declare the existence of the public trust and register it. Under s.19 an enquiry may be started by the Deputy or Assistant Charity Commissioner on tin application made under s.18 or on an application made by any person having interest in a public trust or on his own motion. [660 G, H]. (iv) The Sadhu who had unlawfully possessed himself of a part of the property in dispute was not sued in a representative capacity on behalf of the beneficiaries of the trust; he was sued as a trespasser. Therefore, the judgment did not operate as resjudicata, and the Charity Commissioner was not prevented from determining in an appropriate proceeding whether the property was the property of a public trust of a religious or charitable nature. [658 F]. (v) The argument, that the decision of the Survey Officer, operates by virtue of section 50 A of the Bombay District Municipal Act, 1901 to destroy the rights of the public, is without substance. By sub section (2) of section 50A, if the Collector had passed an order, a suit in a civil court shall be dismissed if the suit was brought to set aside the order of the Collector or if the relief claimed was inconsistent with such order In the present case, the property was entered in the Survey record as that of the Municipality. But the legal ownership of the Municipality was not challenged in the proceedings before the Charity Commissioner. The proceeding under section 19 of the Bombay Public Trusts Act was for a declaration that the property was the property of a public trust and therefore was not a suit to set aside the order of the Collector. nor was it a suit in which the relief claimed was inconsistent with the order of the Survey Officer. [658 G 659 B]. (vi) A person interested as the Charity Commissioner is in the due administration of property, cannot be denied a right to appeal 654 against an adverse decision in a proceeding to which he is a party, on the ground that he is pleading for acceptance of the view which he had declared as a quasi judicial authority at an earlier stage of that proceeding. [661 E F].