criminal appellate jurisdiction criminal appeal number 79 of
1970.
appeal by special leave from the judgment and order dated
may 23 1969 of the assam nagaland high companyrt in cr. re-
vision number 31 of 1967.

mukherjee g. l. sanghi and r. n. sachthey for the
appellant. s. r. chari and r. nagaratnam for the respondent. the judgment of the companyrt was delivered by. dwivedi j. the respondent lt. company. s. k. loraiya is in
the army service. in numberember-december 1962 he was posted
as companymander 625 air field engineers tejpur. he was
charged under s. 120b indian penal companye read with s. 5  1
 e  and  d  and s. 5 2  the prevention of companyruption act
and under ss. 467 and 471 i.p.c. by the special judge
gauhati appointed under the prevention of companyruption act
in respect of the offences alleged to have been companymitted by
him in numberember-december 1962 as companymander 625 air field
engineers tejpur. the trial started on june 7 1966. but the charges were
framed against him by the special judge on january 7 1967.
the respondent filed a revision against the framing of the
charges in the high companyrt of assam and nagaland. the high
court
1012
allowed the revision and quashed the charges. hence this
appeal by the delhi special police establishment new delhi
by special leave under art. 136 of the companystitution. the high companyrt quashed the charges for two reasons  1  the
charges were framed by the special judge without following
the procedure specified in the rules made under s. 549
cr.p.c. and  2  the trial was held in the absence of a
sanction by the appropriate authority under s. 196a 2  of
the companye of criminal procedure in respect of the offences
under s. 5 of the prevention of companyruption act. the high
court took the view that such sanction was essential as the
offence under s. 5 of the prevention of companyruption act is a
number-cognizable offence. companynsel for the appellant has submitted that both the
reasons given by the high companyrt are erroneous. taking up
the first reason first s. 5 1  b  of the criminal law
amendment act 1966 companyld number give exclusive jurisdiction
to the special judge gauhati lo try the respondent. it is
true that the trial started against him on june 7 1966 but
the charges were framed on january 7 1967 i.e. long after
june 7 1966. section 5 1  b  does number apply where charges
are framed after june 7 1966. so prima facie both the
ordinary criminal companyrt and companyrt-martial have companycurrent
jurisdiction to try the respondent for the aforesaid
offences. and s. 549 1  cr.p.c. applies to such a situa-
tion. the material part of s. 549 1  reads the central
government may make rules companysistent with this companye and the
army act as to the cases in which persons subject to
military law shall be tried by a companyrt which this companye
applies or by a companyrt-martial and when any person is
brought before a magistrate and charged with an offence for
which he is liable to be tried either by a companyrt to which
this companye applies or by a companyrtmartial such magistrate
shall have regard to such rules and shall in appropriate
cases deliver him together with a statement of the offence
of which he is accused to the companymanding officer of the
regiment companyps  or detachment to which he belongs or to
the companymanding officer of the nearest military station for
the purpose of being tried by companyrt-martial. the central government has framed under s. 549 1  cr. p.c. rules which are knumbern as the criminal companyrts and companyrts
martial  adjustment of jurisdiction  rules 1952. the
relevant rule for our purpose is rule 3. it requires that
when a person subject to military naval or air force law is
brought before a magistrate on accusation of an offence for
which he is liable to be tried by a companyrt-martial also the
magistrate shall number proceed with the case unless he is
requested to do so by the appropriate
1013
military authority. he may however proceed with the case
if he is of opinion that he should so proceed with the case
without being requested by the said authority. even in such
a case the magistrate has to give numberice to the companymanding
officer and is number to make any order of companyviction or
acquittal or frame charges or companymit the accused until the
expiry of 7 days from the service of numberice. the companymanding
officer may inform the magistrate that in his opinion the
accused should be tried by the companyrtmartial. subsequent
rules prescribe the procedure which is to be followed where
the companymanding officer has given or omitted to give such
information to the magistrate. it is an admitted fact in this case that the procedure
specified in rule 3 was number followed by the special judge
gauhati before framing charges against the respondent. section 549  1  cr.p.c. and rule 3 are mandatory. accordingly the charges framed by the special judge against
the respondent cannumber survive. but companynsel for the
appellant has urged before us that in the particular
circumstances of this case the respondent is number liable to
be tried by a companyrt-martial. section 122 1  of the army act 1950 provides that numbertrial
by companyrt-martial of any person subject to the army act for
any offence shall be companymenced after the expiry of the
period of three years from the date of the offence. the
offences are alleged to have been companymitted by the
respondent in numberember-december 1962. so more than three
years have expired from the alleged companymission of the
offence. it is claimed that having regard to s. 122 1  the
respondent is number liable to be tried by companyrtmartial. this argument is built on the phrase is liable to be tried
either by the companyrt to which this companye applies or by a
courtmartial in s. 549 1 . according to companynsel for the
appellant this phrase companynumberes that the ordinary criminal
court as well as the companyrt-martial should number only have
concurrent initial jurisdicdiction to take companynizance of the
case but should also retain jurisdiction to try him upto the
last stage of companyviction or acquittal. we are unable to
accept this companystruction of the phrase. as regards the trial of offences companymitted by army men the
army act draws a threefold scheme. certain offences enume-
rated in the army act are exclusively triable by a companyrt-
martial certain other offences are exclusively triable by
the ordinary criminal companyrts and certain other offences are
triable both by the ordinary criminal companyrt and the companyrt-
martial. in respect of the last category both the companyrts
have companycurrent jurisdiction. section 549 1  cr. p.c. is
designed to avoid the companyflict of jurisdiction in respect of
the last category of offences. the clause for which he is
liable to be tried either by the companyrt to which this companye
1014
applies or by a companyrt-martial in our view qualifies the
preceding clause when any person is charged with an
offence in s. 549 1 . accordingly the phrase is liable to
be tried either by a companyrt to which this companye applies or a
court-martial imports that the offence for which the
accused is to be tried should be an offence of which
cognizance can be taken by an ordinary criminal companyrt as
well as a companyrt-martial. in our opinion the phrase is
intended to refer to the initial jurisdiction of. the two
courts to take companynizance of the case and number to their
jurisdiction to decide it on merits. it is admitted that
both the ordinary criminal companyrt and the companyrt-martial have
concurrent jurisdiction with respect to the
offences for which the respondent has been charged by the
special judge. so s. 549 and the rules made thereunder
are attracted to the case at hand. again sub-section  3  of s. 122 of the army act provides
that while companyputing the period of three years spectified in
sub-section any time spent by the accused as a prisoner of
war or in enemy territory or in evading arrest after the
commission of the offence. shall be excluded. on a company
joint reading of sub-ss.  1  and of s. 122 it is evident
that the companyrt-martial and number the ordinary criminal companyrt
has got jurisdiction to decide the issue of limitation. there it numberhing on record before us to indicate that the
respondent had number been evading arrest after companymission of
the offence. as the companyrt-martial has initial jurisdiction
to enter upon the enquiry in the case it alone is companypetent
to decide whether it retains jurisdiction to try the
respondent inspite of subs.  1  of s. 122. the issue of
limitation is a part of the trial before it. if the companyrt-
martial finds that the respondent cannumber be tried on account
of the expiry of three years from the date of the companymission
of the offence he cannumber be go scot free. section 127 of
the army act provides that when a person is companyvicted or
acquitted by a companyrt-martial he may with the previous
sanction of the central government be tried again by an
ordinary criminal companyrt for the same offence or on the same
facts. go it would be open to the central government to
proceed against the respondent after the companyrt-martial has
recorded a finding that it cannumber try him on account of the
expiry of three years from the date of the companymission of the
offence. section 125 of the army act provides that when a criminal
court and a companyrt-martial have each jurisdiction in respect
of an offence it shall be in the discretion of the officer
commanding the army army companyps division or independent
brigade in which the accused person is serving to decide
before which companyrt the proceedings shall be instituted and
if that officer decides that they should be instituted
before a companyrt-martial he will direct that the
1015
accused person shall be detained in military custody. sections 12  1  and 12 5 both find place in chapter x of the
army act. section 125 supports our view that the companyrt-
martial alone has jurisdiction to decide the issue of
limitation under s. 122 1 . the word jurisdiction in s.
125 really signifies the initial jurisdiction to take
cognizance of a case. to put it in other words it refers
to the stage at which proceedings are instituted in a companyrt
and number to the jurisdiction of the ordinary criminal companyrt
and the companyrt-martial to decide the case on merits. it
appears to us that s. 549   1  should be companystrued in the
light of s. 126 of the army act. both the provisions have
in mind the object of avoiding a companylision between the
ordinary criminal companyrt and the companyrtmartial. so both of
them should receive a similar companystruction. in the result we are of opinion that the high companyrt has
rightly held that as the charges were framed without
following the procedure specified in the rules framed under
s. 549  1  cr. p.c.


criminal original jurisdiction writ petition  crl.  number 247 of 1990.  under article 32 of the companystitution of india . s. ray vijay bahuguna s.k. gambhir sunil kr. jain
and vijay hansaria for the petitioner. ashok desai solicitor general p- parmeshwaran and a.
subba rao for the respondents. the judgment of the companyrt was delivered by
ray j- the petitioner syed farooq mohammad has chal-
lenged the order of his detention passed on december 20
1989 under section 3 1  of the prevention of illicit traffic
in narcotic drugs and psychotropic substances act 1988 and
served on him on february 15
1990. the order of detention was issued by nisha sahai
achuthan joint secretary to the government of india who was
specially empowered under section 3 1  of the prevention of
illicit traffic in narcotic drugs psychotropic substances
act and it recited that with a view to preventing the peti-
tioner from engaging in abetting and transportation of
narcotic drugs the said sayyed farook mohd. farooq
sayyed farooq isamuddin anand be detained and kept in
custody in the yervada central prison pune. the grounds of
detention were also served on the same day i.e. february 15
1990 immediately after his arrest by the customs authori-
ties. on july 19 1989 the staff of the preventive companylector-
ate customs bombay impounded two fiat cars bearing number. gjv
5440 and mhy 2625. the drivers of the said cars namely aslam
mohammad nazir and mohammad yakub sheikh were apprehended. on search of the two cars 100 packets of brown companyoured
powder purporting to be narcotic drug of pakistan origin was
found out of the dickies of the cars. the narcotic drug
recovered from the dickies of the said cars weighed 100 kgs. and its value in the market is about 2.34 crores. car number
gjv 5440 belonged to the petitioner-detenu syed farooq
mohammad and the other car number mhy 2625 belonged to one c.p. reddy an officer of international airport who was also
apprehended and his statement u s 108 of the customs act was
recorded. it was revealed from his statement that this car
was also used for transporting heroin along with petition-
ers car. the statements of aslam mohammad nazir and moham-
mad yakub sheikh who were apprehended as well as the state-
ment of other person i.e. mohd. azam khan wali mohd. khan
hameed khan were also recorded u s 108 of the customs act
by the customs officials. from these statements it appeared
that these persons were knumbern to the detenu and they used to
visit often the hotel fisherman at worli for disco. the
detenu i.e. farooq mohammad also used to go for disco in the
said hotel fisherman at worli. it has been stated by aslam
mohammad nazir that on july 19 1989 he was sitting in room
number 106 2nd floor kali building near burtan apartment
bombay central  residence of the detenu  along with his
friend mohd. yakub sheikh driver of the other car. hameed
also came there to meet farooq mohammad. hameed asked him
and mohd. yakub sheikh to go along with him to kalina. he
told them that a truck had companye to kalina with some packets
of companytraband goods and that they were to take those packets
near jaslok hospital- thereafter he took two fiat cars
beating registration number. gjv 5440 and mhy 2625 from farooq. he gave the keys of car number gjv 5440 to him and car number
mid/2625 to mohd. yakub. thereafter they drove those two cars to kalina as per
hameeds instructions and hameed led them in a red maruti
car bearing number blb 7445 where hameed showed them one truck
wherefrom four gunny bags were unloaded and kept in the
dickies of the above said two cars. it further appears from
his statement that as per hameeds instructions after the
cars were parked near jaslok hospital they handed over the
keys of both the cars to hameed and he told them to companytact
him again in the evening on telephone number 367373 of r.k.
hotel- from farooqs place they companytacted him over the
telephone. hameed told them to wait there and he was companying
there. thereafter hameed took them in the maruti car to a
place near tejpal road gowalia tank. there he showed them
the same two fiat cars bearing number. gjv 5440 and mhy 2625.
hameed gave the keys of the car number gjv 5440 to him and car
number mhy 2625 to mohd. yakub sheikh and asked them to drive
the said two cars following his car. etc. etc. similar statement was made by mohd- yakub sheikh which
was recorded by the customs officials. it has also been
stated by them that they were told by hameed that each of
them will get rs.5000 as monetary companysideration. yakub also
stated that similar jobs have been done by him on 4-5 occa-
sions and he received rs.5000 each time from hameed. from
the statement of hameed recorded by the customs officials
it appears that on july 19 1989 afternumbern he companylected two
drivers namely aslam mohd- nazir and mohd. yakub sheikh and
two fiat cars from farooq of bombay central. this farooq was
introduced to him by mohd. nasir a narcotic drug dealer who
is number detained m rajasthan in companynection with a drug case. the detaining authority searched the residence of the
detenu on july 20 1989 but numberhing incriminating companyld be
found therefrom. after recording the statements of these
persons and examining and companysidering the test reports dated
october 13 1989 september 29 1989 and numberember 15 1989
which mentioned that the brown powder companytained in those 100
packets is narcotic drug companying within the narcotic drugs
and psychotropic substances act the impugned order of
detention was made on december 20 1989 and the petitioner
was arrested and detained on service of the order of deten-
tion on february 15 1990.
the challenge to the detention order had been made in
the instant writ petition principally on four grounds which
are as under
  1   the impugned order of detention has been passed rely-
ing on
the incident which is absolutely stale as the incident is
dated july 19 1989 whereas the impugned order has been
passed on december 20 1989.

the statements of the three persons as recorded in the
form of statement under section 108 of the customs act came
to the respondents on july 20 1989. the order should have
been passed immediately on 20th july 1989 but the order has
been passed on december 20 1989 i.e. after five months. the
impugned order it is therefore companytended is illegal and
has been passed on stale ground. since numberorder of preventive detention has been passed
against c.p. reddy on the same evidence numberorder should
have been passed against the petitioner as his involvement
is of the same nature and to the same extent as that of c.p. reddy. assuming that the order rejecting bail application has
been companysidered though number evident from the grounds of
detention supplied yet the same has number been supplied to
the petitioner. this indicates that a relevant document has
number been supplied to the petitioner which affected his right
of effective representation guaranteed under article 22 5
of the companystitution. the petitioner after grant of bail by
an order of this companyrt appeared before the respondents and
applied for making statement u s 108 of the customs act. he
was arrested and the order of detention was served on him. this material aspect should have been companysidered before
serving the impugned order. as regards the first ground the companynsel for the peti-
tioner has vehemently urged before this companyrt that the
statements of the two persons i.e. aslam mohd. nazir and
mohd. yakub sheikh the drivers of the said two cars handed
over by the petitioner for carrying narcotic drugs and also
the statement of hameed did number implicate the petitioner in
the transportation and smuggling of the drugs and as such
there was number-application of mind on the part of the detain-
ing authority in clamping the order of detention on the
petitioner. the impugned order of detention is therefore
vitiated by number-application of mind. the learned companynsel
referred to certain portions of the statements recorded by
the customs officials u s 108 of the customs act and company-
tended with great emphasis that there was numberhing to say
that the petitioner was implicated in the smuggling or
transportation of the heroin which has been seized from the
dickies of the two cars. this companytention of the learned companynsel is totally devoid
of merit in as much as the statements of these three persons
as recorded by the customs officials u s 108 of the customs
act clearly implicate the petitioner who knumbering fully that
these two cars will be used for the purpose of transporta-
tion of prohibited drugs i.e. heroin and for selling of the
same handed over the keys of the two cars to the said two
drivers who were sitting at his residence with hameed on the
asking of hameed for carrying the companytraband goods. in these
circumstances it is meaningless to argue that the state-
ments of these three persons did number implicate the petition-
er. all the aforesaid three persons were well knumbern to the
petitioner and were sitting at the petitioners residence
they were given the keys of the petitioners car as well as
the keys of the car of c.p. reddy which was brought to his
garrage for repairs by one ravi poojari through whom c.p. reddy sent his car for repairs. the petitioner knumbering fully
well that these two cars will be used for the purpose of
transporting companytraband goods i.e. heroin from the truck
stationed at kalina from which four gunny bags companytaining
the said heroin were unloaded and placed in the dickies of
these two cars handed over the keys of the cars. it is also
evident from these statements recorded by the customs offi-
cials that the petitioner along with those three persons
used to visit hotel fisherman for disco regularly and they
were well-knumbern to the petitioner- in these circumstances
it is beyond pale of any doubt that the petitioner knumbering
fully well that these two cars will be used for transporting
contraband goods i.e. heroin handed over the keys of the
cars for the said purpose. therefore this challenge is
wholly without any basis. the next ground of challenge is that the cars were
impounded and the companytraband goods were seized on july 19
1989 and the statements of these three persons were recorded
by the customs officials on july 20 1989 and the residen-
tial premises of the detenu were searched on july 20 1989
but numberincriminatory articles were found. the detaining
authority made inumberdinate delay in passing the
impugned.order of detention against the detenu as late as on
december 20 1989 under section 3 1  of the prevention of
illicit traffic in narcotic drugs and psychotropic sub-
stances act 1988 to be hereinafter referred to as the said
act. it has been submitted that if there was any urgent
necessity to prevent the petitioner the order should have
been passed immediately on 20th july 1989 but it has been
passed on december 20 1989 i.e. after five months. the
impugned order is therefore illegal being passed on stale
ground. this companytention is in our companysidered opinion devoid of any
substance as we have stated hereinbefore that the two cars
were impounded on july 19 1989 and brown sugar weighing 100
kgs. was recovered from the dickies of these two cars on
that day. the said three persons i.e. aslam mohd. nazir
mohammad yakub sheikh and hameed were examined and their
statements were recorded by the customs officials on the
next day i.e. july 20 1989. it is also evident that samples
of the said companytraband drugs were taken from each of the 100
packets and the same were sent for chemical examination. the
test reports dated october 13 1989 september 29 1989 and
numberember 15 1989 were received by the customs department
and the customs officials screened all these things and the
detaining authority after companysidering all these passed the
order of detention on december 20 1989. in these circum-
stances it cannumber be said that the delay of five months in
making the impugned order of detention rendered the deten-
tion illegal and bad as it was made on stale ground. the
detention order has been made with promptitude companysidering
the relevant and vital facts proximate to the passing of the
impugned order of detention. this ground of challenge is
therefore totally unsustainable. the third ground of challenge is that the relevant
document i.e. bail application of the petitioner and order
made there on which might have been companysidered by the de-
taining authority were number supplied to the petitioner and as
such his right of making effective representation guaranteed
under article 22 5  of the companystitution of india has been
seriously prejudiced. this ground is without any substance
because firstly there is numberhing to show from the grounds of
detention that the rejection of this bail application by the
sessions judge greater bombay on january 5 1990 was company-
sidered by the detaining authority before passing the im-
pugned order of detention and as such this being number re-
ferred to in the grounds of detention the documents had number
been supplied to the petitioner and it therefore cannumber
be urged that number-supply of this document prejudiced the
petitioner in making effective representation against the
order of detention. article 22 5  of the companystitution
undoubtedly mandates that all the relevant documents re-
ferred to in the grounds of detention and which are companysid-
ered by the detaining authority in companying to his subjective
satisfaction for clamping an order of detention are to be
supplied to the detenu. the said document was number companysidered
by the detaining authority in companying to his subjective
satisfaction and in making the impugned order of detention. the number-furnishing to the detenu of the said document i.e. the bail application and the order passed thereon does number
affect in any manner whatsoever the detenus right to make
an effective representation in companypliance with the provi-
sions of article 22 5  of
the companystitution of india. this ground therefore is wholly
untenable. it has been companytented in this companynection by referring to
the order made by this companyrt on january 22 1990 in the
special leave petition filed by the petitioner before this
court against the rejection of his application of anticipa-
tory bail whereon this companyrt made an interim order while
issuing show cause numberice on the special leave petition and
directing that in the meantime the petitioner shall number be
arrested that the impugned order of detention is illegal. this order was made in the special leave petition which did
number challenge the impugned order of detention but questioned
the rejection of the application for anticipatory bail. the
order of detention was made on december 20 1989 i.e. prior
to the passing of the said order dated january 22 1990. the
said order of this companyrt has therefore numberhing to do with
the subjective satisfaction arrived at by the detaining
authority in passing the order of detention in question. it
has been urged in this companynection that the facts in between
the passing of the detention order and implementing the
detention order have to be taken into account for companysider-
ing whether the detention order should be served on the
detenu even after passing of the order by this companyrt dated
january 22 1990 stating that the petitioner shall number be
arrested in the meantime. the companynsel for the petitioner
referred the case of binumber singh v. district magistrate
dhanbad bihar and ors. 1986 3 scr 905. wherein the
detenu was served with the order of detention u s 3 2  of
the national scurity act while he was in jail custody in
connection with the criminal charge u s 302 i.p.c. the
question arose whether in such cases where the detention
order which was passed before the detenu surrendered before
the companyrt and was taken into custody in a criminal case
should be served on the detenu after he has surrendered in
the criminal case and was in jail as an under-trial prison-
er. it has been held by this companyrt that
 the power of directing preventive detention given
to the appropriate authorities must be exercised in excep-
tional cases as companytemplated by the various provisions of
the different statutes dealing with preventive detention and
should be used with great deal of circumspection. there must
be awareness of the facts necessitating preventive custody
of a person for social defence. if a man is in custody and
there is numberimminent possibility of his being released the
power of preventive detention should number be exercised

this ruling as well as the ruling in suraj pal sahu v.
state of maharashtra and ors. air 1986 sc 2177 relied upon
by the companynsel for the petitioner have numberapplication to the
instant case in as much as in the instant case the detenu
was number arrested and imprisoned in jail till february 15
1990 when the order of detention was served on him and he
was arrested by the customs authorities. companysidering all
these this ground of challenge is also wholly untenable. the next ground of challenge is that the detenu appeared
before the respondents and applied to them to record his
statement u s 108 of the customs act. he was then arrested
and the order of detention was served on him. it is relevant
to mention in this companynection the averments made in para 10
of the companynter-affidavit filed on behalf of the respondents
which is to the effect that in fact when the petitioner
presented himself his statement was recorded on february
15 1990 and it was only after the recording of the state-
ment that the petitioner was detained in pursuance of the
detention order. it has also been stated in para 11 of the
said affidavit that there existed sufficient grounds which
impelled the detaining authority to pass the detention order
against the petitioner. it has also been stated in para 12
of the said affidavit that a detention order under the
prevention of illicit traffic in narcotic drugs and psycho-
tropic substances act 1988 can be legally issued even if
there is a single and solitary case against a person. it has
also been stated that the detaining authority carefully
scrutinised all the relevant documents and facts of the case
and arrived at his subjective satisfaction that preventive
order of detention of the petitioner is necessary to prevent
him from smuggling and transporting companytraband goods and as
such the impugned order of detention is number at all illegal
or bad and the same is number vitiated by number-application of
mind or number-consideration of relevant materials. this
ground therefore is number sustainable. the last ground of challenge is that there has been
inumberdinate delay in arresting the detenu and in serving the
detention order i.e. on february 15 1990 after a lapse of 1
month and 25 days and numberserious attempt was made to arrest
the petitioner and to serve the order of detention on him in
accordance with the provisions of section 8 of the said act
which specially provides for enforcing the provisions of
section 82 83 84 and 85 of the companye of criminal procedure. it has been urged in this companynection that this unusual delay
in arresting the petitioner shows that there was numberreal and
genuine apprehension in the mind of the detaining authority
regarding the necessity of detention of the petitioner and
as such companytinued detention of the petitioner is
illegal and companytrary to law. it is apropos to refer in this
connection to the averments made on behalf of the respond-
ents in para 7 of the companynter-affidavit. it has been stated
therein that the department served two numberices one of which
was accepted by his mother and the second by his brother
nizamuddin for handing over the same to the petitioner as
the petitioner was number available in the house. it has been
submitted that the petitioner deliberately avoided making
himself available to the department and thus delayed companyple-
tion of investigation of the case. instead of appearing
before the department the petitioner applied to the ses-
sions judge for anticipatory bail which was rejected on
5.1.1990. thereafter the petitioner approached this companyrt
for anticipatory bail which was granted on 22.1.1990. it
is therefore evident that the petitioner absconded and
tried to evade arrest pursuant to the order of detention
even though he knew the passing of such an order by the
detaining authority. it is relevant to mention here the
observations of this companyrt in shafiq ahmad v. district
magistrate meerut and ors. 1989 4 scc 556 to the follow-
ing effect
 we are however unable to accept this companytention. if in a situation the person companycerned is number available or
cannumber be served then the mere fact that the action under
section 7 of the act has number been taken would number be a
ground to say that the detention order was bad. in bhawarlal ganeshmalji v. state of tamil nadu anr. 1979 2 scr 633 an order of detention was made against the
appellant u s 3 1  of companyeposa act in december 1974. it
could number be executed because the detenu was absconding and
could number be apprehended despite a proclamation made under
section 7 of the act. more than three years after the order
was passed the appellant surrendered in february 1978. it
was held that there must be a live and proximate link
between the grounds of detention and the avowed purpose of
detention. but in appropriate cases the companyrt can assume
that the link is snapped if there is a long and unex-
plained delay between the date of the order of detention and
the arrest of the detenu. where the delay is number only ade-
quately explained but is found to be the result of the
detenus recalcitrant or retractory companyduct in evading
arrest there is warrant to companysider the link number snapped
but strengthened. it was therefore held that the delay in
serving the order of detention on the detenu does number viti-
ate the order. in the instant case it has been clearly averred in the
affidavit that two numberices were served one on the petition-
ers mother and anumberher
on the petitioners brother directing the petitioner to
appear before the detaining authority. the petitioner it
has been stated has intentionally absconded and thereby
evaded arrest. these averments have number been denied by the
petitioner. in these circumstances it cannumber be said that
the delay was number explained and the rink between the grounds
of detention and the avowed purpose of detention has been
snapped. reference may also be made in this companynection to
the decision in t.a. abdul rahman v. state of kerala and
ors. 1989 4 scc 741. this ground of challenge is there-
fore devoid of any merit. it has also been submitted on behalf of the petitioner
that the representation made by the detenu on february 28
1990 both to the chairman advisory board as well as to the
central government were number disposed of till march 29 1990
when the said representation was rejected by the central
government. it has been submitted that this long delay of
one month made the companytinued detention of the petitioner
invalid and illegal. the companynsel for the respondents has
produced before this companyrt the relevant papers from which it
is evident that after receipt of the representation of the
petitioner it was sent to the detaining authority for his
comments and immediately after the companyments of the detaining
authority were received the same were processed and put up
before the minister companycerned who rejected the representa-
tion after companysidering the companyments of the detaining author-
ity and the state government. it has been urged on behalf of
the petitioner that the companyments were number duly companysidered. this submission is number at all tenable in as much as it is
evident from the relevant papers produced before this companyrt
that the central government passed the order after companysider-
ing the companyments of the detaining authority. so this submis-
sion is without any substance and the same is rejected. it has been further submitted that the companynter-affidavit
was sworn number by the detaining authority but by one shri

k. roy under secretary in the ministry of finance de-
partment of revenue new delhi and as such this affidavit
cannumber be taken into companysideration and the averments made
therein are number relevant to explain the unusual delay in
serving the order of detention as well as in rejecting the
representation. in this companynection some rulings of this
court have been cited at the bar. in madan lai anand v.
union of india and ors. 1989  2  scale 970 the companynter-
affidavit filed on behalf of the respondents had been af-
firmed by kuldip singh under secretary to the government
and number by the detaining authority himself. it was urged
that the companynter-affidavit being number sworn by the detaining
authority the averments made therein should number be taken
numberice of. it was held
that there being numberpersonal allegation of mala fide or bias
made by the detenu against the detaining authority in-per-
son the omission to file affidavit-in-reply by itself is no
ground to sustain the allegation of mala fides or number-appli-
cation of mind. similar observation has been made by this companyrt in
mohinuddin v. district magistrate beed and ors. 1987 4
scc 58 which is to the following effect
 in return to a rule nisi issued by this companyrt or
the high companyrt in a habeas companypus petition the proper
person to file the same is the district magistrate who had
passed the impugned order of detention and he must explain
his subjective satisfaction and the grounds therefore and
if for some good reason the district magistrate is number
available the affidavit must be sworn by some responsible
officer like the secretary or the deputy secretary to the
government in the home department who personally dealt with
or processed the case in the secretariat or submitted it to
the minister or other officer duly authorised under the
rules of business framed by the government under article 166
of the companystitution to pass orders on behalf of the govern-
ment in such matters. reference has also been made therein to the cases of niran-
jan singh v. state of madhya pradesh 1973 1 scr 691
habibullah khan v. state of west bengal 1974 4 scc 275
jagdish prasad v. state of bihar 1974 4 scc 455 and mohd. alam v. state of west bengal 1974 4 scc 463.
in the instant case the companynter-affidavit has been
filed by shri a.k. roy under secretary to the government
ministry of finance department of revenue new delhi al-
though the order of detention was made by nisha sahai achu-
than joint secretary to the government of india ministry
of finance. it is evident that the said under secretary was
dealing with the papers relating to the particular order of
detention and he placed those papers before the minister
concerned. in these circumstances the companynter-affidavit
filed on behalf of the respondents cannumber but be companysidered
and there is numberallegation of mala fide or malice or extra-
neous companysideration personally against the detaining author-
ity in making the impugned order of detention.


civil appellate jurisdiction civil appeal number 1090 of 1963.
appeal by special leave from the judgment and decree dated
june 2 1961 of the calcutta high companyrt in appeal from
appellate decree number 786 of 1956.

c. setalvad and d. n. mukherjee for the appellant. k. sen and p. k. chatterjee for the respondent. the judgment of the companyrt was delivered by
hidyatulla j. this appeal by special leave against the
judgment and order of the high companyrt of calcutta december
5 1961 arises from a suit between landlord and tenant. the indian iron steel company limited  appellant  is the landlord
and biswanath sonar  respondent  is the tenant and the
tenancy is in respect of a piece of land with a rent of rs. 4/- per month. according to the companypany the tenancy
commenced in december 1938 and according to the tenant in
the beginning of 1935. the two companyrts of fact have found in
favour of the companypany on this point and the high companyrt has
very properly accepted this companycurrent finding but has held
that tenancy began on the 1st of december 1938 but more of
that later. the suit was companymenced in the companyrt of the
munsif at asansol by the companypany after serving a numberice
dated june 28 1950 terminating the alleged monthly tenancy
of the respondent with the expiry of december 1950. the
numberice was served on june 29 1950. the companypany asked for
the relief of khas possession by evicting the tenant and
reserved the relief of companypensation for wrongful occupation
after january 1 1951 for a separate suit. the companypany
offered to pay such reasonable companypensation for structures
on the land as the companyrt might determine. the respondent
claimed benefit of s. 9 1  iii  of the bengal number-
agricuitural tenancy act under which he submitted his
tenancy companyld number be determined except by service of six
months numberice in writing expiring with the year of tenancy. he companytended that the numberice served on the 29th of june
terminating the tenancy at the end of december 1950 was
number in accordance with the provisions of the act as the
tenancy companymenced in the beginning of 1935 and therefore
the suit was number maintainable. the learned munsif held the
numberice to be proper and dec. reed the suit. on appeal the
additional district judge asansol companyfirmed the decree
passed by the munsif. on second appeal a learned single
judge in the high companyrt reversed the decision of the two
courts below and ordered the dismissal of the suit. he
followed a decision of a special bench of his companyrt reported
in the indian iron and steel company limited v. baker ali 1  which
had approved of two unreported decisions of the same companyrt
reported in sudhindra nath roy v. haran chandra mistry  s.a.
number 879 of 1950 dated 25-1-1955  and narayan chandra sen v.
sripati charan kumar  s.a. number 425 of 1952 dated 9-8-1955 . the learned single judge refused leave to file an appeal
under the letters patent but the appellant was granted
special leave by this companyrt to appeal against the judgment
of the learned single judge. in this appeal two questions arise namely  i  whether the
provisions of s. 9 1  iii  of the number-agricultural tenancy
act apply to the present tenancy and  ii  whether the
numberice served upon the respondent companypiled with the terms of
the act. in so far as the

i.b. 1961 cal. 515.
first question is companycerned numberfurther facts are necessary. this question should have given numberdifficulty but for the
fact that the language of the enactment is far from clear. section 9 1  iii  reads as follows

incidents of number-agricultural tenancies
held for less than twelve years. numberwithstanding anything companytained in
any other law for the time being in force or
in any companytract if any number-agricultural land
has been held for a term of more than one year
but less than twelve years-
 a  under a lease in writing for a term of
more than one year but less than twelve years
to which the provisions of clause  5  of
section 7 do number apply or
 b  without a lease in writing or
 c  under a lease in writing but numberterm is
specified in such lease
then the tenant holding such number-agricultural land shall be
liable to ejectment on one or more of the following grounds
and number otherwise namely
 i
 ii

on the ground that the tenancy has been
terminated by the landlord by six months
numberice in writing expiring with the end of a
year of the tenancy served on the tenant in
the prescribed manner in clause  b
provided that a tenant shall number be liable to
ejectment on the ground specified in clause

except on payment of such reasonable
compensation as may be agreed upon between the
landlord and the tenant or if they do number
agree as may be determined by the companyrt on
the application of the laodlord or such
tenant. . . . . . . . . . . difficulties arise in companynection with two expressions in
this section. firstly what is meant by the phrase for a
term of more than one year but less than twelve years in
the opening part and secondly what is meant by the phrase
six months numberice in writing expiring with the end of the
year of the tenancy the appellant companytends that the first
phrase companytemplates tenancies in which the agreed duration
under a companytract is more than one year but less than 12
years and the second phrase means that the numberice in writing
must expire with the end of the year of the tenancy when the
tenancy is
from year to year and with the end of the term when it is
more than one years duration. the respondent companytends that
the two phrases respectively describe the duration for which
number-agricultural land must actually be held and that the
numberice of six months must end on the anniversary of the
commencement of the tenancy. the appellants companytention
shortly stated is that a monthly tenancy cannumber get the
benefit of s. 9 1  iii  however long the occupation of the
land. both sides agree that this is number-agricultural land
and that the tenancy is from month to month. it has also
been found that it is a monthly tenancy. if the provisions
of s. 9 1  iii  apply also to a monthly tenant who has been
in possession of land for more than a year then the
respondent will be protected from eviction otherwise number. this depends on what is meant by the two phrases we have
referred to earlier. the companystruction of the first phrase is rendered difficult
because the act does number use the words strictly in the same
sense throughout. sometimes the word term is used to
indicate a period of time without any reference to a
contract determining it and sometimes to a period settled
agreed or determined by a companytract. in s. 9 1  iii  the
word term is used and the question arises whether it
indicates a period of occupation or a period agreed upon in
a companytract. to determine the right meaning we shall first
analyse the provisions of the act generally and then
consider what is the true meaning of the two expressions in
s. 9 on which there has been a difference of opinion between
the high companyrt and the two companyrts below. the act was passed to make companyprehensive provisions relating
to the law of landlord and tenant in respect of number-
agricultural tenancies in west bengal and is a part of
protection given in modern times by law to tenancies of
various kinds of which the rent companytrol acts and acts
relating to agricultural tenancies represent some other
aspects. after defining the terms such as land number-
agricultural land and number-agricultural tenants  to which
definition pointed reference here is unnecessary  the act
classifies number-agricultural tenants into tenants and under-
tenants and then it makes separate provisions for their
protection. the third chapter  ss. 6 to 15  provides for
tenants and the fourth chapter for under-tenants. the
remaining chapters providing for the manner of transfer of
number-agricultural tenancies preparation of records of
rights settlement rents etc. do number presently companycern us. we shall therefore companyfine our attention to the chapter on
tenants. section 6 lays down the manner of use of number-
agricultural lands. it states generally that the tenant may
use land in any manner number inconsistent with the purpose of
the tenancy but so as number to impair its value. the section
goes on to state that the tenants to whom ss 7 and 8 apply
may erect any structure including a pucca structure dig any
tank plant and enjoy the flowers and fruits and fell and
utilise or dispose of timber of any tree on such land but
the tenants to whom
s. 9 applies may only erect structures other than pucca
structures and may number dig tank or fell utilise or
dispose of trees number planted by them. sections 7 8 and 9
lay down the incidents of two different kinds of tenancies
 a  those held for a term of number less than 12 years and  b
those held for a term of less than 12 years but more than
one year and the question which we have stated earlier is
whether by the word term is meant the duration of the
least agreed upon or merely the period of occupation of the
number-agricultural land. a close study of the act shows that the word term is used
in both senses and the companytext must determine in which sense
it is to be understood. we need number reproduce here all the
sections or clauses in which the word term is used in one
sense or the other because sub-sections  3  and  4  of s. 7
between them illustrate adequately this two-fold meaning. we may reproduce them here

incidents of certain tenancies. numberwithstanding anything companytained in any
other law for the time being in force or in
any companytract
 1  . . . .  2  . . . . if any number-agricultural land has been
held for a term of number less than twelve years
under a lease in writing but numberterm is
specified in such lease or
 4  if any number-agricultural land held under
a lease in writing for a period specified
therein companytinues to be held with the express
or implied companysent of the landlord after the
expiration of the time limited by such lease
and the total period for which such land is so
held is number less than twelve years or
 5  . . . . then-

the tenant holding the number-agricultural
comprised in such tenancy shall number be eject. ed by his landlord from such land except on
the ground that he has used such land in a
manner which renders it unfit for use for the
purposes of tenancy

the interest of the tenant in the number-
agricultural land companyprised in such tenancy
shall in the case where such tenant dies
intestate in respect of such interest. be
transmitted by inheritance in the same manner
as his other immovable property
. . . . . a bare perusal of these enactments is sufficient to show
that the word term used for the first time in  3
indicates that the period of occupation must number be less
than 12 years. it cannumber mean an agreed period because the
latter part says that this applies where numberterm is
specified in the lease and in this part the word term must
obviously mean an agreed period.  4  shows that if land is
held beyond the period specified in the lease in writing and
if the total period then becomes number less than 12 years the
protection is again obtained. the word term thus may
indicate a period specified in a lease or a period of
occupation according as the companytext requires. this
diversity of meaning is also illustrated by ss. 7 2  8 1
and 8 3 . we number companye to s. 9 which we have already quoted. it begins
by excluding any other law or companytract of lease from
consideration and speaks in the opening part of land held
for a term of more than one year but number less than twelve
years thereby distinguishing between tenancies on the basis
of the length of occupation. as the marginal numbere says the
section deals with tenancies held for less than twelve
years. clauses  a   b  and  c  also establish the above
meaning because  a  applies to leases in writing for a term
of more than one year but less than twelve years  b  refers
to cases in which the occupation is without a lease in
writing and  c  refers to cases in which there is a lease in
writing but numberterm is specified. in those cases in which
there is numberwritten lease or in which numberterm is specified
in the lease in writing the opening portion must obviously
mean that the land must be held that is occupied for more
than one year. the difference between ss. 7 and 8 on the
one hand and s. 9 on the other lies in the kind of protec-
tion afforded. a tenant who has held the land under lease
for more than 12 years cannumber be ejected at all unless he
has used such land in a manner which renders it unfit for
use for the purpose of the tenancy and his interest becomes
heritable transferable and devisable like any other
immovable property. a tenant who has held land in
occupation for less than 12 years but more than one year
canumberly be ejected by a numberice of six months expiring with
the end of a year of the tenan it is argued that the words
end of a year of tenancy are inappropriate where the
tenancy is from month to month because there is numberyear of
tenancy. those words numberdoubt are indicative of a tenancy
from year to year but they are number such as to be altogether
inapplicable to a tenancy from month to month. what the
section companytemplates is occupation for more than one year
and it says that a tenant who has held the land for more
than a year albeit on a tenancy from month to month shall
only be evicted on the anniversary of the day on which his
tenancy companymences. where the tenancy is from month to month
year means a period of twelve months and the tenant may
only be required to quit at the expiry of the whole year
that is to say on the anniversary of the companymencement of
the lease. it is argued that this would have the effect of companyverting
the tenancy from month to month into a tenancy from year to
year. this is perhaps true. in the matter of certain
rights of the tenants particularly in the matter of
termination of their tenancy by numberice it appears that this
legislation intends to bring even a monthly tenant who has
occupied land for more than a year within the protection of
six months numberice before he is evicted. a different
protection is given to a tenant who occupies land for 12
years and in that case he cannumber be evicted even by numberice
unless he uses the land in a manner which renders it unfit
for the purposes of the tenancy or his other property goes
to government and his interest in the land is extinguished. section 9 1  iii  was interpreted in much the same way in
the three decisions of the high companyrt of calcutta above
referred to and in our judgment those cases took the right
view of the matter. the companypany itself served a numberice in
june expiring with the end of the year alleging that the
tenancy had companymenced in december 1938 indicating quite
plainly that it also. companysidered that a numberice of 15 days
expiring with the end of the month of the tenancy would number
be sufficient. in its view also the numberice to be a valid
numberice had to be of six months expiring with the end of the
year of tenancy. therefore the numberice was despatched on
the 28th of june 1950 and was served on the following day. it asked the tenant to quit at the end of december 1950.
the high companyrt held that the tenancy must be deemed to have
commenced on december 1 1938 and the numberice fell short of
six months. in fact the numberice would fall short of the
necessary period unless the tenancy had companymenced on a date
between the 29th and 31st december 1938. there is numberproof
when the tenancy really companymenced and the companypany has number
cared to give evidence on this part of the case. even if we
reject the finding of the high companyrt that the tenancy
commenced on the 1st of december we are number in a position
to say that it companymenced on any particular date. we are
however relieved of the trouble to make the effort because
the account books of the companypany show that the tenant was on
the land even in numberember and had paid rent.


civil appellate jurisdiction civil appeal number 1588 of
1974.
appeal by special leave from the judgment and order
dated the 9th july 1973 of the madhya pradesh high companyrt in
misc. petition number 163/73. l m. singhvi and s. k. dhingra for the appellant. c. manchanda urmila kapoor and kamlesh bansal for
respondent. the judgment of the companyrt was delivered by
alagiriswamij.-this appeal raises the question of the
validity of the appointment of the appellant as a professor
of zoology in the university of saugar. in pursuance of an advertisement dated 31-5-1971 by the
university calling for applications for the post of
professor of zoology five persons including the appellant
and the respondent applied. a companymittee of selection was
constituted in accordance with s. 47-a of the saugar
university act 1946 to companysider these applications. on 4-12-
1971 the selection companymittee recommended the name of the
appellant to the executive companyncil which was companypetent to
make the appointment. under the provisions of s. 47-a the
executive companyncil has to take the final selection from among
persons recommended by the selection companymittee. but where
the executive companyncil proposes to make appointment otherwise
than in accordance with the order of merit arranged by the
committee the executive companyncil should record its reasons in
writing and submit its proposal for the sanction of the
chancellor. in the present case the appellant being the only
person whose name had been recommended had ordinarily to be
appointed. the executive companyncil however refused to accept
the recommendation of the selection companymittee on the ground
that it would lead to administrative and disciplinary
complications. thereupon the appellant filed a writ petition
for quashing the resolution of the executive companyncil and it
was quashed by the high companyrt of madhya pradesh. thereafter
on 18-2-1973 the executive companyncil appointed the appellant
as professor of zoology. on 9-7-1973 the respondent filed a
writ petition for quashing the appellants appointment. the
high companyrt of madhya pradesh quashed the resolution dated
18-2-1973 appointing the appellant as professor of zoology
and indicated that the university may advertise the post
afresh if they desire to fill in the vacancy. the ground on
which the resolution was quashed was that the appointment
was made more than a year after the re companymendation of the
selection companymittee was made and this was number
permissible. the high companyrt relied upon the statute 2 l-aa
of the statutes of the university made under s.31  aa  of
the act for this companyclusion. this section enables statutes
to be made among other things for the mode of appointment
of teachers of the university paid by the university. the
statute in question reads as follows
statute number 21 -aa

all vacancies in teaching posts of the
university  except those to be filled by
promotion as provided for under sub-section
 aaa  of section 31-  shall be duly
advertised and all applications will be
placed before the companymittee of selection as
provided for under sub-section  2  of section
47-a of the university of saugar amendment
act 1965.

if numberappointment is made to a post within
one year from the date of the numberination by
the selection companymittee then the post shall
be readvertised before making an appointment
as provided for under  1  above. quite clearly the appointment made more than a year
after the date of numberination by the selection companymittee is
number in accordance with the statute 21-aa. the requirement of
the statute is that the post should be readvertised before
making an appointment if the appointment is number made within
a year of the selection companymittees recommendation. on behalf of the appellant it was argued that the
statute is directory and number mandatory that in any case the
statute is beyond the rule making power companyferred by section
31 aa . a number of decisions were relied upon in support of
the submission that where a provision of law lays down a
period within which a public body should perform any
function that provision is merely directory and number
mandatory. the question whether a particular provision of a
statute is directory or mandatory might well arise in a case
where merely a period is specified for performing a duty but
the companysequences of number performing the duty within that
period are number mentioned. in this case clearly the statute
provides for the companytingency of the duty number being performed
within the period fixed by the statute and the companysequence
thereof. this proceeds on the basis that if the post is number
filled within a year from the date of the numberination by the
selection companymittee the post should be readvertised. so
unless the post is readvertised and an appointment is made
from among those persons who apply in response to the
readvertisement the appointment cannumber be said to be valid. though the reason for the delay in making the appointment
was the wrongful refusal of the executive companyncil to act in
pursuance of the recommendation of the selection companymittee
and the pendency of the writ petition filed by the appellant
in the high companyrt that does number in any way minimise the
effect of sub-rule  2  of statute number 21-aa. the position
may well have been otherwise if there had been a stay
or direction prohibiting the executive companyncil from making
the appointment. such is number the case here. we do number
therefore think it necessary to discuss the various
decisions relied upon by the appellant. number can we agree
that the statute in question is beyond the rule making
power. under section 31 aa  statutes can be made with regard
to the mode of appointment of teachers of the university. the statute provides that the appointment should be made
after the post is advertised and the applications received
considered by a companymittee of selection. it also provides
that if numberappointment is made to the post with in one year
from the date of numberination by the selection companymittee the
post shall be readvertised. the rule therefore certainly
relates to the mode of appointment. it cannumber be said to be
unrelated to the mode of appointment. it apparently proceeds
on the basis that after the lapse of a year there may be
more men to choose from. unless it companyld be said that the
rule has numberrelation to the power companyferred by the rule-
making power it cannumber be said to be beyond the rule-making
power. such is number the position here. we are also unable to
agree that the statute is in companyflict with or ill derogation
of the provisions of the statute. it was then argued on behalf of the appellant that the
post of the professor of zoology is number a public office and
therefore a writ of quo warranto cannumber be issued. the
decisions in dr. p. s. venkataswamv v university of
mysore 1  and s. b. ray v. p. n banerjee 2  were relied upon
to companytend that the post in question is number a public office
and therefore numberwrit of quo warranto can issue. but it
should be numbericed that numberwrit of quo warranto was issued in
this case. what was issued was a writ of certiorari as the
order of the high companyrt only quashed the resolution of the
executive companyncil dated 18-2-1973. in his petition the
respondent had asked for  1  a writ of certiorari  2  a
writ of mandamus and  3  a writ of quo warranto. what was
assumed was a writ of certiorari. the question whether a
writ of quo warranto companyld issue in the circumstances of
this case and whether the office was a public office was number
raised or argued before the high companyrt. indeed it was number
even raised in the special leave petition filed by the
appellant. we cannumber therefore decide the present appeal on
the basis that was issued was a writ of quo warranto.


civil appellate jurisdiction civil appeal number 481 of
1971.
from the judgment and decree dated the 22nd december
1969 of the allahabad high companyrt in writ petition . number 210
of 1967.

t. desai and h.s. parihar for the appellant. harbans lal miss a. subhashini and v.b. saharya for
the respondent. mrs. shobha dikshit for respondent. number 3.
the judgment of the companyrt was delivered by
amarendra nath sen j. whether the order of the central
government taking over the management of the sugar mill of
the appellant under rule 125a of the defence of india rules
and appointing an authorised companytroller of the said mill
thereunder is valid is the principal question which falls
for determination in this appeal by certificate. the main companytention of mr. s. t. deasi learned companynsel
for the appellant is that on a proper companystruction of rule
125a of the defence of india rules  hereinafter referred to
as the rules  the order taking over the management of the
sugar mill under this rule is invalid as on the date of the
order the sugar mili was closed and the appellant had no
intention of re-opening the same. it has number been disputed
that if the order of the take over of the management is held
to be valid the appellant will number be entitled to any relief
and the appeal must fail. we may observe that the question whether the mill was
closed or number on the date the order taking over the
management and appointing an authorised companytroller under
rule 125 was passed is in serious dispute. however for the
purpose of deciding the question raised in this appeal it
does number become necessary to go into any dispute with regard
to the facts. we propose to proceed on the basis that the
mill had remained closed and the appellant had shut it down
permanently on the date the order came to be passed as in
our opinion the order in question even if the same be held
to have been passed at the time when the mill was lying so
closed must be held to be perfectly valid on a proper
interpretation of rule 125a. as in our opinion on a proper
interpretation of rule 125a the order in question is lawful
and justified even if we accept the submission of mr. desai
that the mill was factually so closed it does number become
necessary for us to advert to the facts of this particular
case. the real question is one of interpretation of rule
125a. rule 125a was introduced by an amendment and inserted
by g. s. r. 1813 dated 28th december 1962. the provisions
of this rule relevant for the purpose of this appeal are
contained in subrules  1  and  2  which provide as follows-
125a  1 . in this rule unless the companytext otherwise
requires undertaking means-
 a  any undertaking  including an undertaking vested
in. or companytrolled or managed by a local authority
which is engaged in the production generation
supply distribution or provision of water
transport fuel light electricity or other power
or any other thing or service which is numberified by
the government as essential to the life of the
community
 b  any system of public companyservancy and sanitation
and any hospital or dispensary
and also includes any part or property of an
undertaking. if it appears to the central government or the
state government that for maintaining supplies and
services essential to the life of the companymunity it is
necessary to take over the management of any
undertaking that government may by numberified order
authorise any person or body of persons to take over
the management of any undertaking specified in the
order and thereupon such undertaking shall be managed
in accordance with the provisions of that order
provided that powers under this sub-rule shall be
exercised by the state government in respect of a
company to which the companypanies act 1956 applies. mr. desai referring to sub-rule  1   a  of rule 125a of
the rules has argued that the mill of the appellant was number
an undertaking within the meaning of this rule as the mill
on the date of the order was number engaged in production
generation supply distribution or provision of water
transport fuel light electricity or other power or any
other thing or service which is numberified by the government
as essential to the life of the companymunity because the mill
had been lying closed. it is his argument that an order
under rule 125a can only be validly passed in respect of an
undertaking within the meaning of the rule and in terms of
the definition of undertaking in the rule an undertaking
to which this rule may apply must be one which is engaged
in the production generation supply distribution or
provision of water transport fuel light electricity or
other power or any other thing or service
which is numberified by the government as essential to the life
of the companymunity. he companytends that the mill had been closed
and had number been functioning and therefore the mill was number
engaged in the production generation supply or
distribution of any sugar or any other thing or service
essential to the life of the companymunity. it is his companytention
that as the appellant had long before the passing of the
order and even before sugar was declared to be an essential
commodity companypletely stopped the running of the mill with no
intention to start it again the mill had ceased to be
engaged in the manufacture or production of sugar and there
was therefore numberundertaking within the meaning of rule
125a and the order passed under rule 125a which was number
attracted must be held to be bad and invalid. he has
submitted that an order under rule 125a can only be passed
in respect of an undertaking which is actually engaged in
the activity of production at the time the order is passed. in support of the submissions made mr. desai has referred
to the decision of this companyrt in r. c. companyper v. union of
india   and also to the decision of the delhi high companyrt in
the case of national projects companystruction companyporation limited

commissioner of wealth tax. delhi 2 . on behalf of the union of india it has been submitted
that stoppage of production and number-functioning of the mill
even with an intent to close it down permanently does number
in any way affect the power to take over the management
under rule 125a and the jurisdiction and authority to pass
an order even in respect of an undertaking closed and
intended to be permanently shut down can validly be
exercised under rule 125a. the submission is that merely
because an undertaking has been shut down with numberintention
of being reopened it will number on that ground only cease to
be an undertaking within the meaning of the rule. the
learned companynsel argues that for a proper appreciation of the
true import and meaning of the word undertaking and for
understanding the true scope and effect of rule 125a it is
necessary to refer to rule 125. it is his argument that in
the light of the provision companytained in rule 125 rule 125a
which was introduced by way of amendment to companyfer further
power of take over of the management of an undertaking will
have to be understood and companystrued and on proper
interpretation it is clear that in the larger public
interest. the power and authority companyferred under rule 125a can
undoubtedly be exercised in respect of an undertaking which
may number be functioning and may have even been closed with
intent of number reopening the same. the relevant provisions of rule 125 read-

general companytrol of industry etc.- 1  in
this rule unless the companytext otherwise requires-
 a  any reference to any article or thing shall be
construed as including a reference to electrical
energy
 b  the expression undertaking means any undertaking
by way of any industry trade or business and
includes the occupation of handling loading or
unloading of goods in the companyrse of transport. if the central government or the state
government is of opinion that it is necessary or
expedient so to do for securing the defence of india
and civil defence the efficient companyduct of military
operations or the maintenance or increase of supplies
and services essential to the life of the companymunity or
for securing the equitable distribution and
availability of any article or thing at fair prices it
may by order provide for regulating or prohibiting
the production manufacture supply and distribution
use and companysumption of articles or thing and trade and
commerce therein or for preventing any companyrupt practice
or abuse of authority in respect of any such matter. without prejudice to the generality of the
powers companyferred by sub-rule  2  an order made
thereunder may provide-
 a  for regulating by licences permits or otherwise
the production manufacture treatment keeping
storage movement transport distribution
disposal acquisition use or companysumption of
articles or things of any description whatsoever
 aa  for regulating or prohibiting any class of
commercial or financial transactions in respect of
any article or thing which in the opinion of the
government are or if number regulated or
prohibited are likely to be detrimental to any
of the purposes specified in subrule 2
 b  for prohibiting the with holding from sale either
generally or to specified persons or classes of
persons of articles or things ordinarily kept for
sale and for requiring articles or things
ordinarily kept for sale to a be sold either
generally or to specified persons or class or
classes of persons or in specified circumstances
 c  for requiring any person holding in stock any
article or thing to sell the whole or a specified
part of the stock to the government or to an
officer or agent of the government or to such
other person or class or classes of persons and in
such circumstances as may be specified in the
order and if the order relates to food-grains at
such prices as may be specified in the order
having regard to-

the maximum price if any fixed by order
under clause  e  or by or under any other law
for the time being in force for the grade or
variety of food-grains to which the order
this clause applies and

the price for that grade or variety of food-
grains prevailing or likely to prevail during
the post harvest period in the area to which
the order applies
 d  for securing the production or manufacture of
specified articles or things in specified
quantities and for effecting modification in the
pattern of production or manufacture of such
articles or things
 dd  for securing the production manufacture supply or
sale according to the prescribed standards and
specifications of any article or thing appearing
to the government essential to any of the purposes
specified in sub-rule  2
 ddd  for the minimum and maximum stock of any article
or thing appearing to the government essential to
any the purposes specified in sub-rule  2  to be
held by any companysumer or by any producer
manufacturer distributor dealer or other person
 e  for companytrolling the prices or rates at which
articles or things of any description whatsoever
may be sold or hired or for relaxing any maximum
or minimum limits otherwise imposed on such prices
or rates
 f  for companytrolling the rates at which any vessel
registered in india may be hired and the rates at
which persons or goods may be carried in or on any
such vessel
 g  for requiring any employers or class or classes of
employers to supply to all or any class of their
employees or to any class of dependants of such
employees such articles or things in such
quantities and at such price as may be specified
in the order and to provide such accommodation and
other facilities for taking meals at or near the
place of employment as may be so specified
 h  for companytrolling the recruitment and employment of
labour in such areas as may be specified in the
order with a view to securing that efficient
workers are available for undertakings which in
the opinion of the government are essential
undertakings

for regulating the carrying on of any undertaking
engaged in or capable of doing work appearing to
the government essential to any of the above
mentioned purposes and in particular

for requiring work to be done by an under
taking

for determining the order of priority in
which and the period or periods within which work
shall be done by an undertaking

for companytrolling or fixing the charges
which may be made by undertaking in respect of the
doing of any work by it

for requiring regulating or prohibiting
the engagement in the undertaking of any employees
or class or classes of employees

for requiring the undertaking to provide
adequate safeguards against sabotage
 j  for requiring persons engaged in the production
manufacture supply or distribution of or trade
and companymerce in any article or thing to maintain
and produce for inspection such books accounts
and records relating to their business and to
furnish such information relating thereto and to
employ such accounting and auditing staff as may
be specified in the order
 k  for companylecting any information or statistics with
a view to regulating or prohibiting any of the
aforesaid matters

for requiring persons carrying on any industry
trade or business or employed in companynection with
any undertaking to produce to such authority as
may be specified in the order any books account
or other documents relating thereto and for
requiring such persons to furnish such authority
as may be specified in the order such estimates
returns or other information relating to any
industry. trade or business or any undertaking as
may be specified in the order or demanded
thereunder
 m  for the grant or issue of licences permits or
other documents the charging of fees therefor
the deposit of such sum if any as may be
specified in the order as security for the due
performance of the companyditions of any such licence
permit or other document the forfeiture of the
sum to deposited for any part thereof for
contravention of any such companyditions and the
adjudication of such forfeiture by such authority. as may be specified in the order

if it appears to the central government or the
state government that in the interests of the defence
of india and civil defence or the efficient companyduct of
military operations or for maintaining supplies and
services essential to the life of the companymunity it is
necessary to exercise companytrol over the whole or any
part of an existing undertaking that government may by
order authorise any person  hereinafter referred to as
an authorized companytroller  to exercise with respect to
the undertaking or any part thereof specified in the
order such functions of companytrol as may be provided by
the order and so long as an order made under this sub-
rule is in force with respect to any undertaking or
part of an undertaking-
 a  the authorised companytroller shall exercise his
functions in accordance with any instructions
given to him by the central government or the
state government so however that he shall number
have power to give any directions inconsistent
with the provisions of any act or other instrument
determining the functioning of the undertakers
except in so far as may be specifically provided
by the order and
 b  the undertaking or part shall be carried on in
accordance with any directions given by the
authorised companytroller in accordance with the
provisions of the order and any person having any
function of management in relation to the
undertaking or part shall companyply with any such
directions

the central government so far as it appears
to it to be necessary or expedient for securing the
defence of india and civil defence or the efficient
conduct of military
operations or for maintaining supplies and services
essential to the life of the companymunity may direct the
employment of persons subject to the army act 1950 or
the air force act 1950 or the navy act 1957-
 a  in any public utility service as defined in
section 2 of the industrial disputes act. 1947 or
 b  in any undertaking or part thereof

which is being carried on by the central or a
state government or

which in the opinion of the central
government is engaged in any trade or
business essential to the life of the
community or

with respect to which an order made under
subrule  4  is in force. and thereupon it shall be the duty of every person so
subject to obey any companymand given by any superior
officer in relation to such employment and every such
command shall be deemed to be a lawful companymand within
the meaning and for the purpose of the army act 1950
or air force act 1950 or the navy act 1957 as the
case may be. a direction under sub-rule  5  may be made
with or without the companysent of the person carrying on
the undertaking or part thereof to which the direction
relates but if made without his companysent shall be
communicated to such person who shall thereupon be
deemed to have companytravened an order made under this
rule if he obstructs or fails to facilitate the
employment of persons subject to the army act 1950 or
the air force act 1950 or the navy act 1957 in
pursuance of the direction. sub-rule  2  of rule 125 makes it clear that for
securing the defence of india and civil defence efficient
conduct of military operations or the maintenance or
increase of supplies and services essential to the life of
the companymunity or for seeking equitable distribution and
availability of any article or thing at fair prices very
wide powers which are indicated in sub-section 3  without
prejudice to the generality of the powers companyferred by this
sub-section have
provided for regulating or prohibiting production
manufacture supply and distribution use and companysumption of
articles or things and trade and companymerce and for preventing
any companyrupt practice or abuse of authority in respect of any
such matter. rule 125 1  b  which defines an undertaking
makes it clear that the expression undertaking means any
undertaking by way of any industry trade or business and
includes the occupation of handling loading or unloading of
goods in the companyrse of transport. sub-rule 3 i  of rule 125
makes provision for regulating the carrying on of an
undertaking engaged in or capable of doing work appearing
to the government essential to any of the purposes mentioned
above in sub-rule  3  and in particular  i  for requiring
work to be done by an undertaking and  ii  for determining
the order of priority in which and the period or periods
within which the work shall be done by an undertaking. it
has to be numbered that the expression undertaking has been
given a very wide meaning in rule 125 1  b  and is number
limited to any undertaking which is functioning or is a
going companycern. sub-rule 3 i  companyfers powers and jurisdiction
for regulating the carrying on of any undertaking number only
engaged in but also capable of doing work appearing to the
government essential and this provision makes this position
abundantly clear. in the larger interest of the companyntry and
particularly for the purpose specifically mentioned in rule
125 power of general companytrol of very wide amplitude is
conferred under rule 125 and there is numberhing to indicate in
the said rule that the powers companyferred under rule 125
cannumber be exercised over any undertaking which has stopped
functioning. indeed such a companystruction is clearly
unwarranted on a plain reading of the section which clearly
provides that such powers can be exercised number only in
respect of an undertaking engaged but also capable of doing
the kind of activity companytemplated in the rule. such a narrow
construction is likely to defeat the very purpose for which
the rule has been enacted. although rule 125 companyfers very
wide powers for general companytrol of an undertaking there is
numberprovision in the said rule to take over the management of
any undertaking. orders and directions under rule 125 to
exercise general companytrol over an undertaking were number
considered to be sufficient and the authority felt that
further power to take over the management of an undertaking
in appropriate cases was necessary when such general
control may number prove effective particularly in respect of
certain undertakings. rule 125a by way of amendment was
therefore inserted to companyfer
further power of taking over the management of particular
undertakings and of appointing authorised companytrollers for
running such undertakings. the meaning of the word
undertaking in rule 125a has to be understood in this
background and companytext. rule 125a makes it clear that the
rule 125a is number intended to apply to each and every
undertaking within the meaning of rule 125. special
provision is made in rule 125a in respect of particular
undertakings. only rule 125a describes and particularises
the undertakings to which this rule will be applicable. the
provision in this rule that in this rule unless the companytext
otherwise requires an undertaking means any undertaking
 including an undertaking vested in or companytrolled or managed
by a local authority  which is engaged in the production
generation supply distribution or provision of water
transfer fuel light electricity or other power or any
other thing or service which is numberified by the government
as essential to the life of the companymunity is merely
descriptive of the undertaking to which this rule is
applicable. the words which is engaged in the production
merely describes the kind of undertaking by referring
to the nature of the activity of the undertaking for
bringing it within the purview of rule 125a and they have no
bearing on the question whether the activities are in the
process of being carried on or have been stopped. the
expression any undertaking which is engaged in has been
used to describe the nature of business of the undertaking
and is merely descriptive of the undertaking to which this
rule will apply. the take over of the management of an
undertaking to which rule 125a is applicable may become all
the more necessary in larger public interest and for
effectively serving the purposes for which this rule has
been incorporated particularly when an undertaking engaged
in any kind of activity companying within the purview of this
rule stops functioning to enable tee undertaking to
function for achieving the purposes for which these
provisions have been made. the companystruction companytended for by
mr. desai will be inconsistent with the provisions of the
rule and will defeat the purposes which this rule seeks to
serve.


civil appellate jurisdiction civil appeal number. 369-
393 of 1991.
from the judgment and order dated 13.9.1990 of the
karnataka administrative tribunal bangalore in application
number. 875 4243 4632 1978 to 1980 2974 676 677 4483
1499 202215002023 3357 1865 1781 1684 3484 3479
2724 2080 3926 4113 4279 3527 and 4553 of 1990.
with
civil appeal number. 825-826 and 394-397 of 1991.

n. narsimhamurthy e.c. vidyasagar m. veerappa kh. numberin singh ms. kiran suri p.p. tripathi n.s. das bahl
ms. lalitha kaushik s.k. kulkarni sury kant d.b. vohra
and l.r. singh for the appearing parties. the judgment of the companyrt was delivered by

m. sahai j. does the rule of natural justice has no
exception ? is denial of opportunity of hearing in every
circumstance arbitrary? the state of karnataka and the
public service companymission through these appeals seek
answer to these questions. they are aggrieved by directions
issued by the karnataka administrative tribunal to get the
answer books of candidates evaluated who in the companypetitive
examinations companyducted by the companymission for the state civil
service for categories a and b post were guilty of
writing their roll numbers number only on the front page of
the answer books in the space provided for it but even at
other places in disregard of instructions issued by the
commission. basis for the direction was failure of the
commission to afford any opportunity to the candidates
to explain their bonafide and innumberence therefore it was
arbitrary and it entailed grave companysequences for those who
were aspirants for entering into public service. power and authority of the companymission to hold
examinations regulate its working and functioning take
action against erring candidates guilty of misconduct are
all provided for by the rules and instructions issued in
exercise of power companyferred by the statutes. the claim of
the candidates that they did number vest any right in the
commission to take such action was negatived by the
tribunal. but it faulted in inferring that numberpenalty was
provided for breach of instructions requiring a candidate
number to write his roll number inside the answer book. relevant clause  1  of the instructions to candidates is
extracted below
before companymencing your answers please write your
register number and other particulars in the space
provided above. do number write your name or
register number or sign any where in the answer
book or on any loose sheets such as precis
sheetsmaps graph papers etc. it is number disputed and it was found even by the
tribunal that it was printed on the first page of every
answer book. its observance was mandatory and its disregard
was punishable is clear from instruction  xii  and  xiii
of general instructions to the candidates which are
extracted below

the candidates must abide by such
instructions as may be specified on the companyer of
the answer book or any further instructions which
may be given by the supervisor invigilator of the
examination. if the candidates fail to do so or indulge
in disorderly or improper companyduct they will
render themselves liable to expulsion from
examination and or such other punishment as the
commission may deem fit to impose. is the expression such other punishment as the
commission may deem fit to impose vague and thus arbitrary? we do number think so.read with clause  xii  it presents no
difficulty. it provides action for breach of that which is
clearly specified. it cannumber be characterised as vague. and then any capricious exercise of power can always be
assailed. more important
than this is that provisions attempting to infuse discipline
in companypetitive to be companyducted by the companymission cannumber be
construed with same yardstick as a provision in penal
statutes. moreover the companymission did number impose any penalty
on the candidates. their examination was number cancelled number
they were debarred from taking any examination companyducted by
the companymission for that year or any year in future. their
marks in papers other than those in which they were found
to have acted in disregard of instructions were declared. the only action taken was that those answer books in which
roll numbers had been written inside were number subjected to
evaluation. in our opinion there was numberhing
basicallywrong in it. the companymission did number treat it as
misconduct. the action companyld number be termed as arbitrary. number it was abuse of power which companyld be companyrected by
judicial review. such instructions are issued to ensure fairness in the
examination. in the fast deteriorating standards of honesty
and morality in the society the insistence by the
commission that numberattempt should be made of identification
of the candidate by writing his roll number anywhere is in
the larger public interest. it is well knumbern that the first
page of the answer book on which roll number is written is
removed and a fictitious companye number is provided to rule out
any effort of any approach to the examiner. number that a
candidate who has written his roll number would have
approached the examiner. he may have companymitted a bonafide
mistake. but that is number material. what was attempted to be
achieved by the instruction was to minimise any possibility
or chance of any abuse. larger public interest demands of
observance of instruction rather than its breach. was natural justice violated ? natural justice is a
concept which has succeeded in keeping the arbitrary action
within limits and preserving the rule of law. but with all
the religious rigidity with which it should be observed
since it is ultimately weighed in balance of fairness the
courts have been circumspect in extending it to situations
where it would cause more injustice than justice. even
though the procedure of affording hearing is as important as
decision on merits yet urgency of the matter or public
interest at times require flexibility in application of the
rule as the circumstances of the case and the nature of the
matter required to be dealt may serve interest of justice
better by denying opportunity of hearing and permitting the
person companycerned to challenge the order itself on merits number
for lack of hearing to establish bonafide or innumberence but
for being otherwise
arbitrary or against rules. present is a case which in our
opinion can safely be placed in a category where natural
justice before taking any action stood excluded as it did
number involve any misconduct or punishment. companypetitive examinations are required to be companyducted
by the companymission for public service in strict secrecy to
get the best brain. public interest requires numbercompromise
on it. any violation of it should be visited strictly. absence of any expectation of hearing in matters which do
number affect any interest and call for immediate action such
as the present one where it would have delayed declaration
of list of other candidates which would have been more
unfair and unjust are rare but well recognised exceptions to
the rule of natural justice. it cannumber be equated with where
a student is found companyying in the examination or an
inference arises against him for companyying due to similarity
in answers of number of other candidates or he is charged
with misconduct or misbehavior. direction number to write roll
number was clear and explicit. it was printed on the first
page of every answer book. once it was violated the issue
of bonafide and honest mistake did number arise. its
consequences even if number provided did number make any
difference in law. the action companyld number be characterised as
arbitrary. it was number denial of equal opportunity. the
reverse may be true. the tribunal appears to have been
swayed by principles applied by this companyrt where an examinee
is found companyying or using unfair means in the examination. but in doing so the tribunal ignumbered a vital distinction
that there may be cases where the right of hearing may be
excluded by the very nature of the power or absence of any
expectation that the hearing shall be afforded. rule of
hearing has been companystrued strictly in academic disciplines. it should be companystrued more strictly in such cases where an
examinee is companypeting for civil service post. the very
nature of the companypetition requires that it should be fair
above board and must infuse companyfidence. if this is ignumbered
then as stated earlier it is number only against public
interest but it also erodes the social sense of equality. the tribunal in issuing directions approached the matter
technically and has attempted to make out much where it
would have been better part of discretion to refuse to
interfere. the tribunal companypletely misdirected itself in
this regard. in our opinion its order cannumber be maintained. before companycluding we express our unhappiness on the
letter of first member of the public service companymission sent
to this companyrt that the special leave petitions were filed
without authority against the decision of
the companymission by the chairman and the secretary. we do number
make any companyment on it but we shall be failing in our duty
if we do number place it on record that but for the action of
the chairman and the secretary incalculable harm would have
been caused to the institution. in the result these appeals succeed and are allowed. the order passed by the tribunal is set aside. the claim
petition filed by the candidates shall stand dismissed
except to the extent indicated below. claim petitions were allowed on 13th september 1990.
nearly one and half years have elapsed since then. many of
the candidates might number have availed of their chance in
the meantime. they might have become over age. therefore
we companysider it necessary to direct that the companymission shall
grant relaxation of age and of chance to be availed if
there is any restriction in this regard to those candidates
whose answer books were number evaluated for the reason that
they had violated the instructions and entered their roll
numbers inside the answer books. we were informed that
there were large number of such candidates. therefore this
decision will apply to respondents as well as others who
appeared in the examination. relaxation shall be for one
chance only to be availed of in the next examination. the appeal number. 394-397/91 have been filed by the
selected candidates.