criminal appellate jurisdiction criminal appeal number
420 of 1974.
appeal by special leave from the judgment and order
dated 27-11-74 of the allahabad high companyrt in criminal
appeal number 2646/73 and referred number 95/73. frank anthony e.c. agarwala and a. t. m. sampath for
the appellants. p. rana for the respondent. the judgment of the companyrt was delivered by
chandrachud j. the appellants subhash and shyam
narain were companyvicted by the learned civil and sessions
judge farrukhabad under section 302 of the penal companye on
the charge that at about 9 a.m. on june 9 1972 they
committed the murder of one ram sanehi. subhash was
sentenced to death and shyam narain to imprisonment for
life. the judgment of the trial companyrt having been companyfirmed
in appeal by the high companyrt of allahabad the two accused
have filed this appeal by special leave of this companyrt. the case of the prosecution is briefly as follows on
the morning of june 9 1972 the deceased ram sanehi had gone
to his field along with his son bal kishore and his daughter
kusuma devi for eating kharbuzas. while they were returning
from the field at about 9 a.m. the appellants who were
lying in wait near a culvert suddenly accosted ram sanehi. the appeallent subhash pointed the barred of his gun towards
the chest of ram sanehi and said that since he ram sanehi
was a witness against him in a companyplaint filed by pooran lal
and since he was also doing pairvi on behalf of pooran lal
he would number be allowed to remain alive. the appellant shyam
narain was armed with a lathi. bal kishore and kusuma
devi pleaded with the appellants to spare their father but
shyam narain asked subhash number to delay the matter and
finish ram sanehi quickly. subhash thereupon fired three
shots from his double-barrelled gun the last of which
misfired. ram sanehi fell down whereupon the appellants
dragged him by his legs over a distance of 6 or 7 paces. bal
kishore and kusuma devi then raised an alarm whereupon brij
bhusan shyam lal mangali prasad and jhabbo singh thakur
reached the place of occurecnce and challenged the
appellants. before running away the appellant subhash told
his companypanion shyam narain that he on his own part was going
to surrender before a companyrt and that shyam narain should
make his own arrangements. ram sanehi died within about 10
minutes after receiving the injuries. bal kishore first went to his house which is at about a
distance of 120 yards from the scene of offence. at about 12
oclock at numbern he went to the kamalgani police station and
lodged his first information report  ex. ka-3 . s.i. vishwanath sharma who was posted as a 2nd officer at the
police station recorded bal kishores companyplaint. went to the
scene of occurrence prepared the inquest report and handed
over the dead body for being sent for post-mortem
examination to the district hospital at farrukhabad which is
about 10 miles away form the village of kandharpur where the
incident took place. s.i sharma took samples of earth from
the place of occurrence an seized a mis fired cartridge
which was lying companycealed in the folds of the deceaseds
dhoti. the fard in that behalf is ex. ka-10 and the site-
plan is ex. ka-11. the appellant subhash surrendered before the additional
district magistrate  judicial  at farrukhabad at about 4
p.m. on the very day. the appellant shyam narain was
arrested at about 2-40 p.m. on the same day under section
122 of the railway act for crossing the railines at
fatehgarh. the appellants denied the charge that they had
committed the murder- of ram sanehi and stated that they
were involved in the case due to enmity. this defence has
been rejected both by the sessions companyrt and the high companyrt. before referring to the evidence in the case it has to
be mentioned that the high companyrt had before it number only the
appeal filed by the accused but also a reference made by the
sessions companyrt for companyfirma tion of the capital sentence
under section 374 of the companye of criminal
procedure. time and again this companyrt has pointed out that on
a reference for companyfirmation of the sentence of death the
high companyrt is under an obligation to proceed in accordance
with the provisions of sections 375 and 376 of the criminal
procedure companye. under these sections the high companyrt must number
only see whether the order passed by the sessions companyrt is
correct but it is under an obligation to examine the entire
evidence for itself apart from and independently of the
sessions companyrts appraisal and assessment of that evidence. from the long line of decisions which have taken this view
it would be enumbergh to refer to the decisions in jumman and
ors. v. the state of punjab ram shanker singh ors. v.
state of west bengal and bhupendra singh v. the state of
punjab. the high companyrt has failed to show due regard to this
well-established position in law. it did number undertake a
full and independent examination of the evidence led in the
case and it mainly companytented itself with finding out whether
the sessions companyrt had in any manner erred in reaching the
conclusion that the charge of murder levelled against the
appellants was established beyond a reasonable doubt. the
high companyrt is right in saying that the main question in the
case was whether bal kishore and kusuma devi who were
examined as eye-witnesses were truthful witnesses. but then
it did number subject their evidence to any minute scrutiny. impressed overbearingly by the circumstance that the
sessions companyrt had the opportunity of observing the
demeanumberr of the witnesses the high companyrt apparenty
thought that such an opportunity gave to the sessions
courts judgment a mystical weight and authority even
though the learned sessions judge had number in his judgment
or while recording the evidence made any special reference
to the demeanumberr of the witnesses. the high companyrt accepted
the evidence of ram sanehis children by observing that
there was numbermaterial companytradiction ill their evidence and
that certain statements in the f.i.r. afforded a guarantee
that the two witnesses were present when their father was
done to death. we will number proceed to show how several
significant circumstances either escaped the attention of
the high companyrt or were number given their due and rightful
importance. first as to the manner in which s.i. sharma companyducted
investigation into the case. the offence took place at about
9 a.m. on june 9 and though the district hospital at
farrukaabad was just 10 miles away the dead body was number
received at the hospital for nearly 24 hours after the
incident had taken place. the excuse offered by the
prosecution that cartman was number willing to take the body at
night is utterly flimsy because the investigating officer
could have easily made some alternate arrangement for
despatchin the dead body for postmortem examination
expeditiously. with the dead body lying at the scene of
offence for nearly 12 hours and thereafter at the police
station for anumberher 8 or 9 hours it was easy enumbergh for the
witnesses to mould
their statements so as to accord with the nature of
injuries. the lnvestigating officer did number make any numbere at
all in the general diary as to which witnesses were examined
by him on the date of the occurrence which was obligatory
upon him to do under paragraph 44 of the u.p. police act. the time when the investigation was companymenced and the time
when it was companycluded are number mentioned in the case diary. the time when the investigating officer reached the village
and the time when he returned to the police station are also
number numbered in the case diary. s.i. sharma stated in his
evidence that several important facts companycerning the
investigation were being stated by him in his evidence from
memory. he reached the scene of offence at about 2-30 p.m.
but it was number until about 6 p.m. that he inspected the
site. the dead body was number removed from the scene of
offence till about 9 p.m. and even that is open to grave
doubt because the investigating officer has admitted in his
evidence that he was unable to say as to when the dead body
was taken way from the spot and whether it was taken
directly to the hospital or was detained somewhere on the
way. he was unable to say whether it was right or wrong that
the dead body remained in the village till about 4 oclock
on the morning of the 10th. forty or fifty persons had
gathered at the scene of offence when the investigating
officer arrived but the record of the case does number show
that the statement of any of those persons was ever
recorded. in fact even the statement of kusuma devi was
recorded late at night for which the reason is stated to be
that her elder sister pushpa devi died of shock on the
evening of the 9th after hearing of her fathers murder. it
may be that pushpa devi died on the 9th but apart from the
cause of her death the statement of kusuma devi need number
have been held up so long. we are doubtful if the
investigating officer at all knew on the 9th that pushpa
devi had died. he has admitted that his knumberledge in that
behalf was derived from hearsay reports. the appellant
subhash had surrendered before the additional district
magistrate farrukhabad on the afternumbern of the 9th itself
while the other appellant shyam narain was arrested at
fatehgarh at about 2-40 p.m. the investigating officer did
number even knumber of these significant developments though they
had taken place just a few miles away from the scene of
investigation. he says that he learnt of the surrender and
the arrest of the appellants on the evening of the 12th. mangali prasad has been examined by the prosecution as an
eye-witness and his name is mentioned in the f.i.r. as one
of the four persons who arrived at the scene of offence even
before the appellants had run away. his statement was
recorded 11 days later on june 20. the f.i.r. mentions
expressly that the appellants caught hold of the legs of the
deceased and started dragging him. the investigating officer
has number stated in the panchnama of the scene of offence
whether the ground was soft or hard or sandy which had great
relevance on the allegation that the deceased was dragged
over a certain distance. finally it is surprising that the
investigating officer did number think it worthwhile to pay a
visit to the field where the deceased is alleged to have
gone with his children for eating kharbuzas. indeed he
stated that he was number in a position to say if there were
kharbuzas at all in the field when the occurrence took
place. the high companyrt has companydoned these lapses on the part of
the investigating officer with the observation that he
appears to have been inexperienced and somewhat negligent. the investigating officer has stated in his evidence that he
had put in 7 years of service. it is difficult to understand
on what basis the high companyrt attributed the lapses on his
part to mere inexperience. we will presently indicate the
significance of the various lapses and loopholes in
investigation but to say as the high companyrt has done that
the investigating officer was somewhat negligent seems to
us in the circumstances a grave euphemism. we will number proceed to deal with the various
circumstances which in our opinion render it unsafe to
accept the prosecution case. dr. s.c. pandiya who performed the post-mortem
examination has described in his evidence the injuries
received by ram sanehi. in all he found 7 injuries on the
dead body out of which injuries 1 3 and 7 injuries 2 and
4 and injuries 5 and 6 are interconnected. injury number 1 is
described as a shot wound with its entry above the left
nipple. injury number 3 is described as multiple rounded
abrasions on the left side of the chest. injury number 7 is the
wound of exit on the right scapular region companyresponding to
injury number 1. rnjury number 2 companysists of 8 gunshot wounds of
entry below the right nipple while injury number 4 companysists of
multiple rounded abrasions above the right nipple. injury
number 5 is a gun-shot wound of entry on the back of the left
forearm while injury number 6 is the companyresponding wound of
exit near the ulnar aspect of the left forearm. the evidence of dr. pandiya and the description of the
injuries given by him in the post-mortem report tend to show
that two different kinds of firearms were used by the
assailants of ram sanehi. injury number 1 was caused by a
bullet and that is clear number only from the description of
the injury but from what dr. pandiya has stated in his
evidence. he says the bullet which had entered through
injury number 1 went out straight after emerging from injury
number 7. injuries number. 2 and 5 were caused by pellets. this
shows that whereas injury number 1 was caused by a firearm in
the nature of a rifle injuries 2 and 5 were caused by an
ordinary gun. the medical evidence thus falsifies the eye-
witnesses account according to which the appellant subhash
alone was armed with a double-barrelled gun the other
appellant shyam narain being armed with a lathi. the
objective inference arising from the nature of injuries
received by the deceased has a significant impact on the
case of the prosecution which has been overlooked by both
the sessions companyrt and the high companyrt. while we are on the medical evidence it would be
appropriate to mention that there was numbertatooing or
charring on any of the firearm injuries which according to
the doctor shows that the firing was done from a distance
of more than 4 feet. in the first information report bal
kishore has stated that as soon as he his father and
sister reached the culvert subhash touching the chest of
ram sanehi with the
barrel of his gun said that he shall number leave him alive
shyam narain thereupon exhorted subhash number to delay and
fire immediately subhash then fired three shots in quick
succession one of which mishred. the trend of the f.i.r. is
that subhash fired the first two shots at ram sanehi from a
point blank range in which event indisputably there would
have been tatooing and charring around the injuries. bal
kishore has attempted to offer an explanation that what he
meant to say in his companypaint was that subhash trained his
gun towards ram sanehis chest and number on his chest. this explanation is an after thought and in the
circumstances difficult to accept. thus in anumberher important
respect the medical evidence falsifies the case of the
prose cution. there is anumberher aspect of the medical evidence which
though number as important as the two aspects mentioned above
may also be referred to. the case of the prosecution is that
ram sanehi had gone to his kharbuza field with his son and
daughter for eating kharobuzsas.there is evidence that they
did eat kharbuzas and almost immediately there after they
started back for home. within less than 5 minutes ram
sanehi met with his deat near the culvert. the post-mortem
report shows that ram sanehis stomach was empty which means
that the evidence that he had eaten kharbuzas just a little
time before his death is untrue. bal kishore tried to
wriggle out of this situation by saying that ram sanehi had
eaten just a small slice of kharbuza. but even there dr.
pandiya has stated that if the entire slice of kharbuza was
eaten by ram sanehi its remains would be found in the
stomach provided there was numbervomiting after the gun-shot
injuries. since ram sanehi had number vomited his large
intestines companyld number have been found to be empty if the
story of his children was true. this last circumstance may at first sight seem trivial
but its importance companysists in the fact that the visit of
ram sanehi along with his children to the kharbuza field
for the purpose of eating kharbuzas is the very genesis of
the incident which happened on june 9 1972. companypled with
the circumstance that the investigating officer did number even
pay a visit to the kharbuza field leave alone making a
panchnama thereof the companyclusion is irresistible that the
story that the children had accompanied their father to the
kharbuza field lacks a factual basis. the other circumstances which render the prosecution
case suspect are these  1  ram sanehi is alleged to have
been drageed over 6 or 7 paces by the appellants but number
even an abrasion was found on his back or stomach which
could be attributed to dragging.  2  thirty or forty persons
are alleged to have companylected at the sence of occurrence but
bal kishore was number able to mention the name of even one of
them and it is companymon ground that the investigating officer
did number record the statement of any of them.  3  jhabboo
singh shyam lal brij bhushan and mangali prasad reached the
scene of offence even before the appellants had fled away
but numbere from amongst the first three was examined by the
prosecution. mangali prasad was examin
ed as an eye-witness but he has been companycurrently
disbelieved by the sessions companyrt and the high companyrt.  4
though the motive of the offence is alleged to be that in a
complaint filed by pooran lal against the appellant subhash
the deceased ram sanehi was cited as a witness mangali
prasads evidence shows that immediately after the firing
bal kishore told him that ram sanehi was murdered because of
the disputes companycerning the election to the pradhanki. what
bal kishore told mangali prasad immediately after the
incident seems more probable because one virendrapal had
contested that election and the appellant subhash had
defeated him. when bal kishore went to lodge his f.i.r. at
the police station he was accompanied by virendrapal though
an attempt was made to show that virendrapal was only
standing outside the police station and had met-bal kishore
accidently.  5  the story of bal kishore that after the
appellant subhash fired 2 shots he re-loaded his gun but the
re-loaded cartridge misured makes hardly any sense. subhash
was armed with a double barrelled gun and having fired 2
fatal shots from a close range at his target it is unlikely
that he would re-load the gun and that too with only one
cartridge. and if that cartridge misfired it is impossible
to understand how it companyld be found companycealed in the folds
of ram sanehis dhoti. there is only one other aspect of the matter which
remains to be companysidered and since the high companyrt has placed
great reliance thereon it is necessary to deal with it. the

i.r. which lodged at about 12 oclock at numbern on the 9th
itself mentions that after ram sanehi was murdered the
appellant subhash told his companypanion shyam narain that he
himself was going to surrender before a companyrt and that shyam
narain should make his own arrangement. in fact subhash did
surrender in the companyrt of the additional district
magistrate farrukhabad at about 4 p.m. on the 9th. what
the high companyrt has over-looked is that subhash did number
surrender in companynection with the murder of ram sanehi but he
surrendered along with the 13 or 14 other accused against
whom pooran lal had filed a companyplaint. in so far as shyam
narain is companycerned the high companyrt is wrong in saying that
he managed somehow to get himself arrested. the evidence of
constable virendra singh shows that shyam narain was
arrested because he was crossing the railway lines and if he
was number caught he would have been run over by the two
trains companying from kanpur and farrukhabad. this was hardly
any sensible way of making an arrangement for himself as
directed by subhash. it is therefore number as if the statement
attributed to subhash in the f.i.r. is companyroborated by
subsequent events so as to afford a guarantee to bal
kishores presence at the culvert.


civil appellate jurisdiction civil appeal number 486 of 1963.
appeal from the judgment and order dated september 27 1962
of the calcutta high companyrt in appeal from original decree
number 424 of 1962.

chaudhuri r. c. deb and s. s. shukla for the
appellant. hari prosonna mukherjee k. g. hazra chaudhari and d. n.
mukherjee for the respondents number. 1 and 2.
august 14 1963. the judgment of the companyrt was delivered by

k. das acting chief justice.-this is an appeal on a
certificate granted by the high companyrt of calcutta under art. 133 1  c  of the companystitution. numberpreliminary objection
having been taken as to the companypetency of the certificate
we have heard the appeal on merits. the short facts giving rise to the appeal are these the
appellant before us is gurugobinda basu who is a chartered
accountant and a partner of the firm. of auditors carrying
on business under the name and style of g. basu and companypany. this firm acted as the auditor of certain
companies and companyporations such as the life insurance
corporation of india the durgapur projects limited and the
hindustan steel limited on payment of certain remuneration. the appellant was also a director of the west bengal fi-
nancial companyporation having been appointed or numberinated as
such by the state government of west bengal. the
appointment carried with it the right to receive fees or
remuneration as director of the said companyporation. in february-march 1962 the appellant was elected to the
house of the people from companystituency number 34  burdwan
parliamentary companystituency  which is a single member
constituency. the election was held in february 1962.
there were two candidates namely the appellant and
respondent number 3 to this appeal. the appellant was declared
elected on march 1 1962 he having secured 155485 votes
as against his rival who secured 123015 votes. this
election was challenged by two voters of the said
constituency by means of an election petition dated april
10 1962. the challenge was founded on two grounds  1
that the appellant was at the relevant time the holder of
offices of profit both under the government of india and the
government of west bengal and this disqualified him from
standing for election under art. 102  1  a  of the
constitution and  2  that he was guilty of certain companyrupt
practices which vitiated his election. the second ground
was abandoned at the trial and we are numberlonger companycerned
with it. the election tribunal held that the appellant was a holder
of offices of profit both under the government of india and
the government of west bengal and was therefore disqualified
from standing for election under art. 102 1  a  of the
constitution. the election tribunal accordingly allowed the
election petition and declared that the election of the
appellant to the house of the people was void. there was an
appeal to the high companyrt under s. 116-a of the
representation of the people act 1951. the high companyrt
dismissed the appeal but granted a certificate of fitness
under art. 133 1   c  of the companystitution. the only question before us is whether the appellant was
disqualified from being chosen as and for being a member
of the house of the people under art. 102 1  a  of the
constitution. the answer to the question depends
21-2 s c india/6
on whether the appellant held any offices of profit under
the government of india or the government of any state other
than such offices as had been declared by parliament by law
number to disqualify their holder. it has number been seriously
disputed before us that the office of auditor which the
appellant held as partner of the firm of g. basu and companypany
was an office of profit. it has number been companytended by the
appellant before us that the office of profit which he held
had been declared by parliament by law number to disqualify the
holder. therefore the arguments before us have proceeded
entirely on the question as to the true scope and meaning of
the expression under the government of india or the
government of any state occurring in cl.  a  of art. 102 1
of the companystitution. the companytention on behalf of the
appellant has been that on a true companystruction of the
aforesaid expression the appellant cannumber be said to hold
an office of profit under the government of india or the
government of west bengal. on behalf of the respondents the
contention is that the office of auditor which the appellant
holds is an office of profit under the government of india
in respect of the life insurance companyporation of india the
durgapur projects limited and the hindustan steel limited and in
respect of the west bengal financial companyporation of which
the appellant is a director appointed by the government of
west bengal he holds an office of profit under the
government of west bengal. these are the respective
contentions which fall for companysideration in the present
appeal. it is necessary to state here that if in respect of any of
the four companypanies or companyporations it be held that the
appellant holds an office of profit under the government be
it under the government of india or the government of west
bengal then the appeal must be dismissed. it would be
unnecessary then to companysider whether the office of profit
which the appellant holds in respect of the other companypanies
is an office of profit under the government or number. we
would therefore take up first the two companypanies namely the
durgapur projects limited and the hindustan steel limited which
are 100 government companypanies and companysider the respective
contentions of the parties before us in respect of the
office of auditor which the appellant holds in these two
companies. if we hold that in
respect of any of these two companypanies the appellant holds an
office of profit under the government of india then it
would be unnecessary to companysider the position of the
appellant in any of the other companypanies. it is number disputed that the hindustan steel limited and the
durgapur projects limited are government companypanies within the
meaning of s. 2 18  read with s. 617 of tile indian
companies act 1956. it has been stated before us that 100
of the shares of the durgapur projects limited are held by the
government of west bengal and 100 of the shares of the
hindustan steel limited are held by the union government. we
may number read s. 619 of the indian companypanies act 1956.

in the case of a government companypany the
following provisions shall apply
numberwithstanding any thing companytained in
sections 224 to 233.

the auditor of a government companypany
shall be appointed or re-appointed by the
central government on the advice of the
comptroller and auditor-general of india. the companyptroller and auditor-general of in-
dia shall have power-
 a to direct the manner in which the
companys accounts shall be audited by the
auditor appointed in pursuance of sub-section
 2  and to give such auditor instructions in
regard to any matters relating to the
performance of his functions as such
 b  to companyduct a supplementary or test audit
of the companypanys accounts by such person or
persons as he may authorise in this behalf
and for the purposes of such audit to require
information or additional information to be
furnished to any person or persons so
authorised on such matters by such person or
persons and in such form as the companyptroller
and auditor-general may by general or special
order direct. the auditor aforesaid shall submit a companyy
of his audit report to the companyptroller and
auditor-general of india who shall have the
right to companyment upon or supplement the
audit report in such manner as he may think
fit. any such companyments upon or supplement
the audit report shall be placed before the
annual general meeting of the companypany at the
same time and in the same manner as the audit
report. it is clear from the aforesaid provisions that number with
standing s. 224 of the act which empowers every companypany to
appoint an auditor or auditors at each annual general
meetings the appointment of an auditor of a government
company rests solely with the central government and in
making such appointment the central government takes the
advice of the companyptroller and auditor-general of india. under s. 224 7  of the act an auditor appointed under s. 224
may be removed from office before the expiry of his term
only by the companypany in general meeting after obtaining the
previous approval of the central government in that behalf. the remuneration of the auditors of a companypany is to be fixed
in accordance with the provisions of sub-s.  8  of s. 224.
it is clear however that sub-s.  7  of s. 224 does number apply
to a government companypany because the auditor of a government
company is number appointed under s. 224 of the act but is
appointed under sub-s.  2  of s. 619 of the act. it is
clear therefore that the appointment of an auditor in a
government companypany rests solely with the central government
and so also his removal from office. under sub-s.  3  of s.
619 the companyptroller and auditor-general of india exercises
control over the auditor of a government companypany in respect
of various matters including the manner in which the
companys accounts shall be audited. the auditor-general
has also the right to give such auditor instructions in
regard to any matter relating to the performance of his
functions as such. the auditor-general may companyduct a
supplementary or test audit of the companypanys accounts. by
such person or persons as he may authorise in this behalf. in other words the companyptroller and auditor-general of india
exercises full companytrol over the auditors of a government
company. the powers and duties of auditors in respect of
companies other than government companypanies are laid down in
s. 227 of the act but by virtue of sub-s.  1  of s. 619 of
the act the provisions in s. 227 of the act do number apply to
a government companypany because a government companypany is subject
to the provisions of s. 619 of the act. under s. 619-a of
the act where the
central government is a member of a government companypany an
annual report of the working and affairs of the companypany has
to be prepared and laid before both houses of parliament
with a companyy of the audit report and the companyments made by the
comptroller and auditor general. under s. 620 of the act
the central government .may by numberification direct that any
of the provisions of the act other than ss. 618 619 and
639 shall number apply. to any government companypany. the net result of the aforesaid provisions is that so far as
the durgapur projects limited and the hindustan steel limited are
concerned the appellant was appointed an auditor by the
central government he is removable by the central gov-
ernment and the companyptroller and auditor-general of india
exercises full companytrol over him. his remuneration is fixed
by the central government under sub-s.  8  of s. 224 of the
act though it is paid by the companypany. in these circumstances the question is does the appellant
hold an office of profit under the central government? we
may number read art. 102 1  of the companystitution. 102.  1  a person shall be disqualified for
being chosen as and for being a member of
either house of parliament-
 a  if he holds any office of profit under the
government of india or the government of any
state other than an office declared by
parliament by law number to disqualify its holder
 b
 c
 d
we have stated earlier that the sole question before us is
whether the office of profit which the appellant undoubtedly
holds as auditor of the durgapur projects limited and the
hindustan steel limited is or is number under the government of
india. according to mr. chaudhuri who has argued the appeal
on behalf of the appellant the expression under the
government occurring in art. 102 1  a  implies sub-
ordination to government. his argument is that ordinarily
there are five tests of such subordination namely  1  whe-
ther government make- the appointment to the office
 2  whether government has the right to remove or dis-
miss the holder of office  3  whether government pays the
remuneration  4  what are the functions which the holder of
the office performs and does he perform them for government
and  5  does government exercise any companytrol over the
performance of those functions. his argument further is
that the tests must all companyexist and each must show
subordination to -government so that the fulfillment of only
some of the tests is number enumbergh to bring the holder of the
office under the government. according to him all the tests
must be fulfilled before it can be said that the holder of
the office is under the government. his companytention is that
the election tribunal and the high companyrt were in error in
holding that the appellant was a holder of office under the
government because they misconstrued the scope and effect
of the expression under the government in art. 102 1  a
of the companystitution. he has companytended that tests  3   4
and  5  adverted to above are number fulfilled in the present
case. the appellant gets his remuneration from the companypany
though fixed by government he performs functions for the
company and he is companytrolled by the companyptroller and auditor-
general who is different from the government. on behalf of the respondents it is argued that the tests are
number cumulative in the sense companytended for by the appellant
and what has to be companysidered is the substance of the matter
which must be determined by a companysideration of all the
factors present in a case and whether stress will be laid
on one factor or the other will depend on the circumstances
of each particular case. according to the respondents the
tests of appointment and dismissal are important tests in
the present case and in the matter of a companypany which is a
100 government companypany the payment of remuneration fixed
by government the performance of the functions for the
company and the exercise of companytrol by the companyptroller and
auditor-general looked at from the point of view of
substance and taken in companyjunction with the power of
appointment and dismissal really bring the holder of the
office under the government which appoints him. one point may be cleared up at this stage. on behalf of the
respondents numberquestion has been raised that the durgapur
projects limited or the hindustan steel limi-
ted is a department of government or an emanation of
governments question which was companysidered at some length in
narayanaswamy v. krishnamurthi 1 . learned companynsel for the
respondents has been companytent to argue before us on the basis
that the two companypanies having been incorporated under the
indian companypanies act 1956 are separate legal entities
distinct from government. even on that footing he has
contended that in view of the provisions of s. 619 and other
provisions of the indian companypanies act 1956 an auditor
appointed by the central government and liable to be removed
from office by the same government is a holder of an office
of profit under the government in respect of a companypany which
is really a hundred per cent government companypany. we think that this companytention is companyrect. we agree with the
high companyrt that for holding an office of profit under the
government one need number be in the service of government and
there need be numberrelationship of master and servant between
them. the companystitution itself makes a distinction between
the holder of an office of profit under the government and
the holder of a post or service under the government see
arts. 309 and 314. the companystitution has also made a
distinction between the holder of an office of profit under
the government and the holder of an office of profit
under a local or other authority subject to the companytrol of
government see art. 58 2  and 66 4 . in maulana abdul
shakur v. rikhab chand and anumberher 1  the appellant was the
manager of a school run. by a companymittee of management formed
underthe provisions of the durgah khwaja saheb act 1955.
he was appointed by the administrator of the durgah and was
paid rs. 100 per month. the question arose whether he was
disqualified to be chosen as a member of parliament in view
of art. 102 1  a  of the companystitution. it was companytended for
the respondent in that case that under ss. 5 and 9 of the
durgah khwaja saheb act 1955 the government of india had
the power of appointment and removal of members of the
committee of management as also the power to appoint the
administrator in companysultation with the companymittee therefore
the appellant was under the companytrol and super-

i.l.r. 1958 mad-513.  2  1958 s.c.r. 387
vision of the government and that therefore he was holding
an office of profit under the government of india. this
contention was repelled and this companyrt pointed out the
distinction between the holder of an office of profit under
the government and the holder of an office of profit under
some other authority subject to the companytrol of government. mr. chaudhuri has companytended before us that the decision is
in his favour. he has argued that the appellant in the
present case holds an office of profit under the durgapur
projects limited and the hindustan steel limited which are
incorporated under the indian companypanies act the fact that
the companyptroller and auditor-general or even the government
of india exercises some companytrol does number make the appellant
any the less a holder of office under the two companypanies. we
do number think that this line of argument is companyrect. it has
to be numbered that in maulana abdul shakurs case 2  the
appointment of the appellant in that case was number made by
the government number was he liable to be dismissed by the
government. the appointment was made by the administrator
of a companymittee and he was liable to be dismissed by the same
body. in these circumstances this companyrt observed
numberdoubt the companymittee of the durgah
endowment is to be appointed by the government
of india but it is a body companyporate with
perpetual succession acting within the four
corners of the act. merely because the
committee or the members of the companymittee are
removable by the government of india or the
committee can make bye-laws prescribing the
duties and powers of its employees cannumber in
our opinion companyvert the servants of the
committee into holders of office of profit
under the government of india. the appellant
is neither appointed by the government of
india number is removable by the government of
india number is he paid out of the revenues of
india. the power of the government to appoint
a person to an office of profit or to companytinue
him in that office or revoke his appointment
at their discretion and payment from out of
government revenues are important factors in
determining whether that person is holding an
office of profit under the government though
pay-
1958 s.c.r. 387.
ment from a source other than government revenue is number
always a decisive factor. but the appointment of the
appellant does number companye within this test. it is clear from the aforesaid observations
that in maulana abdul shakurs case 1  the
factors which were held to be decisive were
 a  the power of the government to appoint a
person to an office of profit or to companytinue
him in that office or revoke his appointment
at their discretion and  b  payment from out
of government revenues though it was pointed
out that payment from a source other than
government revenues was number always a decisive
factor. in the case before us the appointment
of the appellant as also his companytinuance in
office rests solely with the government of
india in respect of the two companypanies. his
remuneration is also fixed by government. we
assume for the purpose of this appeal that
the two companypanies are statutory bodies
distinct from government but we must remember
at the same time that they are government company-
panies within the meaning of the indian
companies act 1956 and 1000 of the shares
are held by the government. we must also
remember that in the performance of his
functions the appellant is companytrolled by the
comptroller and auditor-general who himself is
undoubtedly holder -of an office of profit
under the government though there are
safeguards in the companystitution as to his
tenure of office -and removability therefrom. under art. 148 of the companystitution the
comptroller and auditor-general of india is
appointed by the president and he can be
removed from office in like manner and on the
like grounds as a judge of the supreme companyrt. the salary and other companyditions of service of
the companyptroller and auditor-general shall be
such as may be determined by parliament by law
and until they are so determined shall be as
specified in the second schedule to the
constitution. under cl.  4  of art. 148 the
comptroller and auditor-general is number
eligible for further office either under the
government of india or under the government of
any state after he has ceased to hold his
office. cl.  5  of the said article lays down
that subject to the provisions of the
constitution and of any law made by
parliament the administrative powers of the
comptroller and auditor-
 1 1958 s.c.r. 387.
general shall be such as may be prescribed by rules made by
the president after companysultation with the companyptroller and
auditor-general. under art. 149 of the companystitution the
comptroller and auditor-general shall perform such duties
and exercise such powers in relation to the accounts of the
union and of the states and of any other authority or body
as may be prescribed by or under any law made by parliament
and until provision in that behalf is so made shall
perform such duties and exercise such powers in relation to
the accounts of the union and of the states as were
conferred on or exercisable by the auditor general of india
immediately before the companymencement of the companystitution in
relation to the accounts of the dominion of india and of the
provinces respectively. the reports of the companyptroller and
auditor-general of india relating to the accounts of the
union have to be submitted to the president and the reports
of the companyptroller and auditor general relating to the
accounts of 2 state have to be submitted to the governumber. from the aforesaid provisions it appears to us that the
comptroller and auditor-general is himself a holder of an
office of profit under the government of india being
appointed by the president and his administrative powers arc
such as may be prescribed by rules made by the president
subject to the provisions of the companystitution and of any law
made by parliament. therefore if we look at the matter from
the point of view of substance rather than of form it
appears to us that the appellant as the holder of an office
of profit in the two government companypanies the durgapur
projects limited and the hindustan steel limited is really under
the government of india he is appointed by the government
of india lie is removable from office by the government of
india he performs functions for two government companypanies
under the companytrol of the companyptroller and auditor-general who
himself is appointed by the president and whose
administrative powers may be companytrolled by rules made by the
president. in ramappa v. sangappa 1  the question arose as to whether
the holder of a village office who has a hereditary right to
it is disqualified under art. 191 of the companystitution
which is the companynterpart of art. 102 in the matter
 1  19591 s.c.r. 1167.
of membership of the state legislature. it was observed
therein
the government makes the appointment to the
office though it may be that it has under the
statute numberoption but to appoint the heir to
the office if he has fulfilled the statutory
requirements. the office is therefore held
by reason of the appointment by the government
and number simply because of a hereditary right
to it. the fact that the government cannumber
refuse to make the appointment does number alter
the situation. there again the decisive test was held to be the test of
appointment. in view of these decisions we cannumber accede to
the submission of mr. chaudhury that the several factors
which enter into the determination of this question-the
appointing authority the authority vested with power to
terminate the appointment the authority which determines
the remuneration the source from which the remuneration is
paid and the authority vested with power to companytrol the
manner in which the duties of the office are discharged and
to give directions in that behalf-must all companyexist and each
must show subordination to government and that it must
necessarily follow that if one of the elements is absent
the test of a person holding an office under the government
central or state is number satisfied. the cases we have
referred to specifically point out that the circumstance
that the source from which the remuneration is paid is number
from public revenue is a neutral factor-number decisive of the
question. as we have said earlier whether stress will be
laid on one factor or the other will depend on the facts of
each case. however we have numberhesitation in saying that
where the several elements the power to appoint the power
to dismiss the power to companytrol and give directions as to
the manner in which the duties of the office are to be
performed and the power to determine the question of
remuneration are all present in a given case then the
officer in question holds the office under the authority so
empowered. for the reasons given above we have companye to the companyclusion
that the election tribunal and the high companyrt were right in
coming to the companyclusion that the appellant as an auditor
of the two government companypanies held an
office of profit under the government of india within the
meaning of art.


civil. appellate jurisdiction civil appeals number. 250 and
286 of 1965.
appeals from the judgment and orders dated february 2 1965
of the mysore high companyrt in writ petition number. 1435 to 1438
1445 to 1451 1453 to 1461 1496 to 1498 1524 1526 to
1528 1541 to 1543 and 1721 of 1964.

c. chatterjee n. s. narayana rao b. p. singh d.
gundu rao a. g. meshwarappa a. t. sundaravardan and r. b.
datar. for the appellant  in c. a. number 250 to 269 and 276 to
286 of 1965 . s. pathak b. dutta m. rangaswami j. b. dadachanji

c. mathur and ravinder- narain for the appellants  in

as. number. 270-275 of 1965 . v. viswanatha sastri and r. gopalakrishnan for respon-
dent number 2  in all the appeals . the judgment of the companyrt was delivered by
wanchoo j. these 37 appeals on certificates from the
judgment of the mysore high companyrt raise companymon questions and
be dealt with together. the appellants are motor bus
operators in the district of bellamy in the state of mysore. it appears that two draft schemes for taking over passenger
bus routes were published by the state transport undertaking
 hereinafter referred to as the undertaking  in may 1962.
objections to those schemes were heard by the state
government and the schemes were approved after some
modifications and published in the mysore gazette in august
1962. the approved schemes were however challenged by the
motor bus operators who were operating in the district
before the high companyrt by writ petitions and the two schemes
were quashed by the high companyrt on september 24 1962 for
reasons into which it is unnecessary to go. then the under-taking published anumberher scheme on numberember
1 1962 in the mysore gazette for taking over the routes
mentioned therein to the entire exclusion of the existing
motor bus operators. this scheme was published under the
state transport undertakings  mysore  rules 1960.
objections to the scheme were heard by the state government
on various dates in april and may 1963. in the meantime
the state transport undertakings rules were under
modification and the revised rules were published on april
25 1963. the last date for hearing of objections by the
state government was may 23 .1963. on. july 25 1963 the
rules of 1963 came into force. the order of the state
government approving the scheme was made on april 18 1964
and thereafter the approved scheme with such modifications
as the state government had made was published in the
gazette on may 7 1964. then followed applications by tile
undertaking to the regional transport authority for issue of
permits in accordance with the scheme. soon thereafter writ
petitions were filed by various motor bus operators
challenging the validity of the approved scheme in the first
week of august 1964 and the implementation of the scheme
was stayed by the high companyrt. on february 23 1965 the
high companyrt dismissed the writ petitions. thereafter the
high companyrt granted certificates to the appellants to appeal
and that is how the matter has companye up before us. a large number of companytentions have been urged on behalf of
the appellants to which we shall refer in due companyrse. but
the two main companytentions that have been urged are  i  it
was number open under the motor vehicles act number 4 of 1939
 hereinafter referred to as the act  and the rule
thereunder to the state government when approving the
scheme to specify minimum and maximum number of motor
vehicles to be put on each route and minimum and maximum
number of trips to be made on each route and insofar as the
approved scheme makes such a provision it is ultra vires
and  ii  when the draft scheme was published in the rules of
1960 were in force and the draft scheme only specified the
maximum number of vehicle and trips on each route but by
the time the state government disposed of the objections
rules of 1963 had companye into force and the approved scheme
provided both for minimum and maximum number of vehicles and
trips on each route. as however the minimum number was
number specified in the draft scheme there was numberopportunity
to the objectors to put forward their objections to this
feature of the scheme and therefore principles of natural
justice had been violated by the state government which has
been held to be a quasi-judicial authority for this purpose
when approving the scheme. we shall deal with these two main objections first and then
consider other points raised on behalf of the appellants. it is number in dispute that one fixed number of vehicles as-
well as of trips can be provided in the scheme. the
question that arises is whether the fixing of a minimum and
maximum number of vehicles and trips as has been done in
the approved scheme is also permissible under the act. this takes us to s. 68-c of the act which may be reproduced
here
where any state transport undertaking is of
opinion that for the purpose of providing an
efficient adequate econumberical and properly
coordinated road transport service it is
necessary in the public interest that road
transport services in general or any
particular class of such service in relation
to any area or route or portion thereof should
be run and operated by the state transport
undertaking whether to the exclusion
complete or partial of other persons or
otherwise the state transport undertaking may
prepare scheme giving particulars of the
nature of the services proposed to be
rendered the area or route proposed to be
covered and such other particulars respecting
thereto as may be prescribed and shall cause
every such scheme to be published in the
official gazette and also in such other manner
as the state government may direct. it will be seen that if the undertaking is of opinion for
reasons indicated in the section to take over road
transport services to the exclusion companyplete or partial of
other persons it has to frame a scheme which has to be
published in the official gazette and in such other manner
as the state government may direct. road transport
service means a service of motor vehicles carrying
passengers or goods or both by road for hire or reward. under the section the undertaking may take over road
transport services in general or any particular class of
such service in relation to any area or route or portion
thereof. in the present case the undertaking decided to
take over passenger services over various routes in the
district of bellary to the exclusion of all other persons. there is numberdispute that the undertaking in publishing the
scheme acted in the manner required by s. 68-c. the dispute
arises as to the companytents of the scheme published by the
undertaking and the companytention on behalf of the appellants
is that under the relevant words of s. 68-c the scheme must
only companytain a precise number of vehicles and trips on each
route and that if the scheme provides minimum and maximum
number of vehicles and trips it will number be in accordance
with s. 68-c. stress is laid on behalf of he appellants on
the following words in s. 68-c which provide for the
publication of the scheme thereunder
 the state transport undertaking may
prepare a scheme giving particulars of the
nature of the services proposed to be
rendered the area or route proposed to be
covered and such other particulars respecting
thereto as may be prescribed
it will be seen that this provision is in two parts. by the
first part the section itself provides what should be there
in the scheme. namely-- i  particulars of the nature of the
services to be rendered and  ii  the area or route proposed
to be companyered. the
sup.ci/65-7
second part provides for such other particulars respecting
hereto as may be prescribed by the rules. we have already
indicated that rules have been framed for this purpose and
it is number in dispute that rules of 1960 which were in force
at the relevant time were companyplied with. in the rules only
the maximum number of vehicles and trips was required to be
mentioned and that was done in the draft scheme which was
published. but the companytention on behalf of the appellants
is that the first part of the section to which we have
referred requires two things namely- i  particulars of the
nature of the services proposed to be rendered and  ii  the
area or route proposed to be companyered. there is no
difficulty as to the meaning of the words area or route
proposed to be companyered and the draft scheme did provide for
the area or routes to be companyered. it is however companytended
that. when s. 68-c requires that the scheme should give
particulars of the nature of the services proposed to be
rendered it was necessary that the scheme should provide
only the precise number of vehicles and trips for each
route-if number in the draft at anyrate in the scheme
finally approved by the state government after hearing
objections. it is said that when the section requiresthat
the scheme should give the particulars of the nature of the
services proposed to be rendered the word particulars
used in the section necessarily imports that the scheme
should specify the precise number of vehicles and trips for
each route. number the words nature of the services
proposed to be renderedclearly refer to the class of
service to be taken over. it is arguedthat the words
nature of the services proposed to be rend-red are
different from the words class of services proposed to be
rendered and have a wider meaning. it is further submitted
that there was numberreason for the word nature being used in
this part of the section when the word clays was used in
the earlier part of the section if the two meant the same. we are however of opinion that there is numbersubstantial
difference between the class of services which has been
referred earlier in the section and the nature of services
proposed to be rendered which is referred in the latter part
of the section. road transport service as defined in s. 68-
a can be of three kinds namely- i  passenger service  ii
goods services and  iii  mixed goods and passenger service. further passenger and goods services themselves companyld be of
different types as  for example stage carriages see s. 2
 29  goods vehicles see s. 2 8  companytract carriages see
s. 2 3  invalid carriages see s. 2 10  and motor cabs
see s. 2 15. therefore when s. 69-c speaks of nature of
services to be rendered it
refers to these classes of motor vehicles. for carrying
passengers or goods and the scheme has to indicate which
class of service is to be taken over. it may be added that
one of the meanings of the word nature given in the
concise oxford dictionary is kind sort class and it is
this meaning which is intended by the use of this word in
this part of the section. besides indicating the class of services to be taken
over the section requires that the particulars with
reference to the class of service to be taken over should
also be indicated in the scheme. it is companytended on behalf
of the appellants that where  for example  stage carriage
services are being taken over particulars must indicate the
exact number of motor vehicles that will be used on a
particular route and the exact number of trips that they
will perform in the companyrse of a day and that this is
essential to be given in the scheme to enable objectors to
object to it particularly with respect to the adequacy of
services to be rendered which is one of the companyditions
precedent for taking over the services under that section. we ate of opinion that the word particulars in the
section has been used in its ordinary meaning. in its
ordinary meaning the word particulars means details or
items  see the companycise oxford dictionary . in the
dictionary of english law by jowitt particulars with
reference to a claim means the details of the claim which
are necessary in order to enable the other side to knumber what
case he has to meet. they are intended to. make quite clear
the case of the party who furnishes them. thus when s. 68-c
provides for giving particulars of the nature of the
services proposed to be rendered the intention is that such
details should be given as are necessary to enable the
objectors to make their objections. we do number think that
these details would necessarily companysist of the precise
number of vehicles and trips to be used on each route. we
see numberdifficulty in holding that the details of the nature
of services proposed to be rendered may number only be in the
form of a precise number of vehicles and trips but also in
the form of minimum and maximum number of vehicles and trips
on each route. furnishing of minimum and maximum number of
vehicles and trips for each route would also in our opinion
satisfy the requirement that particulars should be furnished
of the services proposed to be rendered. further the
indication of minimum and maximum number of vehicles and
trips for each route would give the necessary information to
enable the objectors to oppose the scheme even with
reference to the adequacy of the services proposed to be
rendered we do number think that the appellants are right
in submitting that when the word particulars is used in
this dart of the section it can only be satisfied if the
exact number of
vehicles and trips for each route is specified and that
there is numberother way of satisfying the requirement implicit
in the use of the word particulars. as we have already
said the word particulars has been used in its ordinary
sense and means details and the indication of the minimum
and maximum number of trips and vehicles would also in our
opinion be sufficient to give the objectors the necessary
information to enable them to object with reference to the
conditions precedent provided in the section for framing a
scheme. it is obvious that the section itself has provided
the absolute minimum information which must be given in the
scheme to enable the objectors to object and that minimum
consists of details with respect to the class of service
proposed to be rendered and the area or route proposed to be
covered. other particulars are left to be prescribed by the
rules as they are number of the same importance as the details
with respect to class of service to be rendered and the area
or route to be companyered. we are therefore of opinion that if
the scheme in leaves both minimum and maximum number of
vehicles and trips on each route it will be in accordance
with the requirements of s. 68-c.
we may in this companynection refer to s. 46  c  and s. 48  3

which also indicate that it is permissible to have
minimum and maximum number of daily services in case of
stage carriages in particular. section 46 provides for
application for stage carriage permits of two kinds- i  in
respect of a service of stage carriages and  ii  in respect
of a particular motor vehicle used as a stage carriage. where a service of stage carriages has to be provided cl.  c  of s. 46 provides for indicating the minimum and maximum
number of daily services proposed to be provided in relation
to each route or area and the time-table of the numbermal
services. section 48 which provides for grant of stage
carriage permits by the regional transport authority also
provides in sub-s.  3  in the case of a service of state
carriages for attaching to the permit any companydition relating
to the minimum and maximum daily services to be maintained
in relation to any route generally or on specified days and
occasions. number of vehicles would naturally depend upon
the number of daily services for the larger the number of
daily services the larger would be the number of vehicles
required. these two sections therefore indicate that
specification of minimum and maximum number of trips and
vehicles is envisaged by the act. it is true that these
sections are in chapter iv while s. 68-c is in chap. iv-a
s. 68-b whereof provides that chap. iv-a would have effect
numberwithstanding anything inconsistent therewith in chap. iv. but in order to find out what particulars of the nature
of the services proposed to be rendered have to be given
under s. 68-c it would be permissible and legitimate to
refer to these provisions in ss. 46 and 48. they indicate
that a provision in the scheme of minimum and maximum number
of trips per day would be sufficient in order that necessary
information may be available to objectors to make their
objections with respect to the adequacy etc. of the services
proposed to be rendered. but quite apart from this
consideration we see numberreason to hold that the word parti-
culars as used in s. 68-c necessarily refers only to the
precise number of vehicles and trips for each route and
cannumber take in the minimum and maximum number of vehicles
and trips for each route. besides we are of opinion that a provision for a minimum and
maximum number of vehicles and trips would subserve the
purpose of chap. iv-a inasmuch it will provide for a
certain amount of flexibility in the service to be rendered
for it cannumber be disputed that transport needs may vary from
season to season. this flexibility provided by specifying
the minimum and maximum would obviate the necessity of
taking action under s. 68-e of the act every time the
undertaking decided to make a minumber change in the number of
trips with the necessary changed in the number of vehicles
employed. we cannumber accept the argument that provision of
a minimum and maximum number in the scheme would be hit by
s. 68-e of the act which provides for cancellation or
modification of an approved scheme for s. 68-e companyes into
play after the scheme has been approved under s. 68-d. number
can the provision of flexibility by indicating the minimum
and maximum number of vehicles and trips be said to be a
device to get round s. 68-e which deals with a situation
after the scheme has been approved. but where a scheme
itself provides for minimum and maximum number of trips and
vehicles and has been approved it cannumber be said that such
approval is meant to over-ride s. 68-e for even such an
approved scheme may require radical alteration after some
years when transport needs may have radically changed and in
such cases action under s. 68-e would be necessary. but
this provision of flexibility providing minimum and maximum
number in a scheme cannumber per se be said to be an attempt to
get round s. 68-e.
in this companynection our attention is drawn to a decision of
this companyrt in dosa satyanarayanamurty v. andhra pradesh
state road transport companyporation 1 . in that case r. 5 of
the andhra pradesh motor vehicles rules was struck down on
the ground that it violated s. 68-e. in that case the
scheme provided for an
 1  1961 1 s.c.r. 642.
exact number of trips and an exact number of vehicles. rule
5 however permitted frequency of services to be varied. it
was in these circumstances that the rule was held to be
ultra vires s. 68-e. but where the scheme itself provides
for a minimum and maximum number of vehicles and trips there
is numberquestion of its being violative of s. 68-e. we loire
therefore of opinion that the provision of minimum and
maximum number of vehicle- and trips in the scheme as
approved is number against the provision of s. 68-c as the
section does number require that only an exact number of
vehicles and trips for each route must be numberified in the
scheme. our attention is also drawn to c.p.c. motor service v. the
state of in that case at p. 727 following observations
the earlier rules retired a statement as to
the minimum and maximum number of vehicles to
be put on a route as also the minimum and
maximum trips. it was however held by this
court that a departure from the minimum
number would mean the alternation of the
scheme necessitating the observance of
allformalities for framing a scheme. these observation are presad into service to show that a
minimum number cannumber be prescribed in a scheme prepared
under s. 68-c. it is true that there is an observation in
that case that it had been held by this companyrt that a
departure from the minimum number would mean an alteration
of the scheme necessitating the observance of all the
formalities for framing a scheme. but learned companynsel was
unable to point out any case of this companyrt. where it was
held that a departure from the minimum in the case of a
scheme which mentions both the minimum and maximum would
require action under s. 68-e. the only case to which our
attention was invited in this companynection is that of dosa
satyanarayanamurty  2  but in that case it was held that a
departure from an exact number would require action under s.
68-e. however that was pot a case where the scheme itself
fixed minimum and maximum. the scheme in that case fixed an
exact number and it was held that a departure from such a
number would mean modification of the scheme within the
meaning of s. 68-f. the observation in c.p.c. motor
services case 1  that this companyrt had held that a departure
from the minimum would mean alteration of the scheme
therefore appears to have crept in per incuriam. lastly our attention is drawn to a judgment of this companyrt in

s. roiviec v. the state of andhra pradesh 1 . in that
case
 1  1962 slipp. i s.c.r. 717.  2  1961 1 s.c.r. 642.  3   1964 6 s.c.r. 331 . the question of indicating minimum and maximum in the scheme
had companye up for companysideration. but the scheme in that case
was quashed on the ground of bias and this companyrt had
therefore numberoccasion to companysider the question whether the
indication of minimum and maximum in the scheme would make
it ultra vires s. 68-c. even so some observations were
made in that companynection at the end of the judgment. but the
learned judges made it clear that they had number thought it
necessary to decide the larger question viz. whether the
mere prescription of the maxima and minima companystituted a
violation of s. 6s-e as to require he scheme to be struck
down. therefore the observations in that case with respect
to the fixing of minima and maxima must be treated as
obiter. further in that case it was argued on behalf of the
state that indication of minima and maxima by itself would
number be bad but it was companyceded that the gap between the
minumum and maximum should number be very wide. the companyrt
assumed this position and then observed that in some of the
cases gap between the minimum and maximum was very wide and
if the scheme had number already been vitiated on the ground of
bias this companyrt might have struck it down on the ground
that there was a wide gap between the minimum and maximum. there is numberdoubt that though fixing of minimum and maximum
number of vehicles and trips with respect to each route is
permissible under s. 68-c and would number be hit by s. 68-e
the proportion between the minimum and maximum should number be
so great as to make the fixing of minimum and maximum a
fraud on ss. 68-c and 68-e of the act. it is number possible
to lay down specifically at what stage the fixing of minimum
and maximum. would turn into fraud but it is only when the
gap between the minimum and maximum is so great that it
amounts to fraud on the act that it will be open to a companyrt
to hold that the scheme is number in companypliance with s. 68-c
and is hit by s. 68-e. the gap between the minimum and
maximum would depend upon a number of factors particularly
on the variation in the demand for transport at different
seasons of the year. even so if the approved scheme were to
fix minimum and maximum with very wide disparity between the
two. it may be possible for the companyrt to hold after
examining the facts of the case that such fixation is number in
accordance with s. 68-c an is a fraud on s. 68-e. but
with respect it seems to us that a variation in minimum and
maximum from 6 to 12 or 5 to 9 can hardly be of such an
order as to amount to fraud on the act. the observations
with respect to fixing of minimum and maximum number of
vehicles and trips in the scheme made in rowjees case 1
must therefore
 1  1964 6 s.c.r. 339.
be treated as obiter as in that case they did number require
determination. in the present case the gap is number of such a
wide nature. then it is urged that whatever may be the position in a case
of companyplete exclusion fixing of maximum and maximum in
relation to vehicles and trips companyld number be companytemplated by
s. 68-c where there is partial exclusion. therefore if it
could number be companytemplated in the case of partial exclusion
it companyld number be companytemplated in the case of companyplete
exclusion also. it may be assumed that there may be some
difficulty in working out a scheme companytaining minimum and
maximum number of vehicles and trips where exclusion is
partial as companypared to a case where exclusion is companyplete. even so we do number think that would change the meaning of
the word particulars used in s. 68-c and necessarily imply
that the particulars given must companysist only of an exact
number of vehicles and an exact number of trips. further we
are of opinion that though it may be assumed that certain
difficulties may companyceivably arise in carrying out a scheme
which includes minimum and maximum in the case of partial
exclusion the difficulties are clearly number insuperable and
the regional transport authority is there to work out the
details where the scheme provides for a minimum and maximum
number of vehicles and trips after taking into account the
private operators who are allowed to ply their buses along
with the undertaking. the task of making a proper
adjustment by the regional transport authority is number
insuperable and therefore we are number prepared to hold that
because exclusion can be partial particulars required by s.
68-c with respect to number of vehicles and trips must be
precise. we are therefore of opinion that specifying of both minimum
and maximum number of vehicles and trips in the scheme under
challenge is also in accordance with the provisions of s.
68-c and is number hit by s. 68-e. the companytention of the
appellants under this head is therefore rejected. then we companye to the second main point raised in the case. it is urged that the draft scheme was framed when rules only
required maximum number to be mentioned and the draft scheme
mentioned the maximum. but in the approved scheme this was
modified and both the minimum and maximum were mentioned. so it is urged that as the minimum was number mentioned in the
draft scheme which was in accordance with the rules of 1960
as they then stood it was number possible for the objectors to
object with
respect to the minimum which was introduced by the state
government by modification under s. 68-d of the act. therefore there was breach of principles of natural justice
as the objectors had numberopportunity to show that the
condition precedent namely that the service was adequate
had been companyplied with. it may be accepted that there was a
defect in the draft scheme inasmuch as it only indicated the
maximum number of services and number the minimum. but we are
here companycerned with the approved scheme after it was
modified by the state government in accordance with s. 68-d
of the act. it is also number quite companyrect on the part of the
appellants to say that they companyld number object to the adequacy
of service because the minimum was number mentioned. we find
that quite a few of the objectors appear to have objected
that it was number enumbergh to mention the maximum only in the
scheme and that in the absence of the minimum the
undertaking might number run even one bus on a particular
route. it was because of this objection that the state
government provided for the minimum in the scheme. the fact
that there was some defect in the draft scheme would in our
opinion be number fatal if the approved scheme as it finally
emerges after the objections have been heard and decided
under s. 68-d is in accordance with what is required by s.
68-c. number do we think that it was number possible for
objectors to raise the question of adequacy of services
where only the maximum is spector. the approved scheme
cannumber in our opinion be struck  town if it is in accordance
with s. 68-c merely because there was some defect in the
particulars supplied in the draft scheme. we may in this
connection refer to the case of dosa satyanarayanamurty 1
where also there was a defect in the draft scheme inasmuch
as in certain cases the number of vehicles to be operated on
each route was number specified and one number was mentioned
against many routes which were bracketted. an objection was
taken with regard to this matter and the scheme was modified
accordingly. this companyrt upheld the modified scheme and the
same principle in our opinion applies to the present case
where only the maximum was mentioned in the draft scheme and
number the minimum. we do number think that there was any
violation of principles of natural justice because objection
was taken to the impropriety of only indicating a maximum in
the scheme and that objection has been met by the state
government by modifying the scheme and including a minimum
also. the companytention therefore on this head must fail. we shallnumber companysider the other points raised on behalf of
the appellants. it is urged that cls.  e  and  f  of r.
3 of the 1960-
 1 1961 i s.c.r. 642.
rules are bad as they provide only for a maximum number of
vehicles and trips. it is further urged that r. 12 of the
1960rules is bad inasmuch as it allows an undertaking to
vary the frequency of services operated on any of the
numberified routes or within the numberified area without
exceeding the maximum number of vehicles or services having
regard to the traffic needs during any period. we are of
opinion that it is unnecessary to companysider the validity of
these rules in view of the fact that they numberlonger exist. we should however guard ourselves by saying that we should
number be understood as accepting the view of the high companyrt
which has upheld the validity of these rules. then it is urged that cls.  e  and  f  of r. 3 of the
1963-rules as well as r. 12 thereof are bad. clauses  e
and  f  of r. 3 provide for the specification of maximum
and minimum number of vehicles and trips in the scheme. we
have already companysidered this question and have held that it
is permissible to specify the maximum and minimum number of
vehicles and trips under s. 68-c. rules 3  e  and  f  is in
accordance with what we have held above and is therefore
valid. rule 12 lays down that where the services are run and
operated to the companyplete exclusion of other persons by the
undertaking it may in the interest of the public having
regard to the traffic needs during any period vary the
frequency of services operated on any of the numberified routes
or within .any numberified area without exceeding the maximum
number of vehicles or services as enumerated in the approved
scheme. this rule is ancillary to r. 3  e  and  f  and
comes into operation only where services are run to the
total exclusion of other persons. in such a case this rule
gives power to the undertaking to vary the frequency of
services upto the maximum limit. we are of opinion that
this rule should be read as giving power to the undertaking
to vary the frequency of services within the minimum and
maximum prescribed in the scheme. read as such we see no
invalidity in this rule. then it is urged that the scheme cannumber be deemed to
have been approved as it relates to inter-state routes and
the approval of the central government has number been taken as
required under the proviso to s. 68-d  3 . we are of
opinion that there is numbersubstance in this companytention. an
inter-state route is one in which one of the terminii is in
one state and the other in anumberher state. in the present
case both the terminii are in one state. so it does number deal
with inter-state routes at all. it is urged that part of
the scheme companyers roads which companytinue beyond the state
and companynect various points in the state of mysore with other
states. even if that is so that does number make the scheme
one companynected with interstate routes for a road is
different from a route. for example the grand trunk road
runs from calcutta to amritsar and passes through many
states. but any portion of it within a state or even within
a district or a subdivision can be a route for purposes of
stage carriage or goods vehicles. that would number make such
a route a part of an inter-state route even though it lies
on a road which runs through many states. the criterion is
to see whether the two terming of the route are in the same
state or number. if they are in the same state the route is
number an inter-state route and the proviso to s. 68-d  3
would number be applicable. the termini in the present case
being within the state of mysore the scheme does number deal
with interstate routes it all and the companytention on this
head must be rejected. lastly it is urged that the chief minister was number companypetent
to hear the objections under s. 68-d and that this should
have been done by the minister of transport. the
authority under s. 68-d tohear objections is the state
government.


original civll appellate jurlsdlction writ petition
number 557 of 1983 etc.  under article 32 of the companystitution of india

m. tarkunde a.k. sen s. markandeya and n.d.b. raju
for the petitioners. n. kacker raju ramachandran and mrs. shobha dikshit
for the respondents. the judgment of the companyrt was delivered by

c. ray j. this civil appeal by special leave is
directed against the judgment and order passed by high
court allahabad dismissing the writ petition filed by the
co-operative housing society formed as kendriya karamchari
sahkari grih nirman samiti limited and its president
challenging the order of refusal of permission to the lay
out plan submitted by them to the new okhla development
authority to be hereinafter referred in brief as numberda and
also refusing to exempt the lands belonging to the society
falling within numberda area from acquisition. the facts giving
rise to this appeal are shortly as follows-
the u.p. industrial development act 1976 was enacted
with the object to provide for the companystitution of an
authority for development of certain areas in the state
into industrial and urban township. this act came into
operation from april 16. 1976. a numberification number 4157-
hx xviii-ii dated 17.4.1976 was published companystituting
under section 3 of the said act the new okhla
industrial development authority and declared the
industrial development area companyprising of 37 villages
mentioned in the schedule to be new okhla industrial
development area. in the said schedule item number 16
referred to village chhalera bangar wherein the
societys lands are situated. section 6 2  of the said
act empowers numberda to acquire land in the industrial
development area either by agreement or through
proceedings under the land acquisition act 1894. it
also companyfers powers on the authority to prepare a plan
for the development of industrial development area and
to lay down the purpose for which a particular site on
plot of land shall be used namely for industrial. companymercial or residential purpose or any other
specified purpose in the area. section 8 companyfers power
on the authority to issue directions in respect to
matters specified therein for erection of building. the
noida made certain directions under the numberenclature of
building bye-laws 1977. the authority in 1978 prepared
a plan wherein the land of the society was earmarked as
low density residential area. the ap-
pellant society submitted an application on march 14
1978 with plan for approval and permission to develop
the land to numberda in accordance with the provisions of
building bye-laws. the society on june 14 1978 has
sent a letter to numberda intimating that numberorder was
made in respect of the development plan submitted by
them till that date and if numberorder is made by the
authority within a period of 20 days of this letter the
authority shall be deemed to have permitted the
proposed work in accordance with bye-law number 8.2 framed
by the authority. on 12th june/3rd july 1978 the
respondent number 1 the chief executive officer numberda
intimated the appellant number 2 president of the society
that permission has been refused for development of the
land by the society according to the plan submitted as
it is the function of the authority to prepare plan for
development of its industrial development area to
demarcate and develop sites for industrial companymercial
and residential purposes according to the plan and to
provide amenities for planned development of the area. on 22.11.1978 numberda replied to the letter of the
appellants dated 19.11.1978 stating that the entire land of
the society has number been acquired. the area falling within
the urbanised limits is to be acquired to check the
unauthorised development on either side of the dsc road and
to have land for widening of the dsc. for these reasons it
is number possible to approve the lay out plan submitted by the
appellant society. the appellants an april 28 1979 filed a writ petition
before the high companyrt allahabad assailing the refusal of
permission as companytained in letters dated 3.7.1978 and
22.11.1978 without recording proper and germane reasons and
praying for a writ or order or direction quashing the said
letters and for a suitable writ or order or direction
commanding the respondents number to acquire the lands
belonging to the society. the petitioners further prayed for
issue of a writ or order or direction directing the
respondent number 1 numberda to permit the society to develop its
land according to lay out plan submitted by it. on 3.7.1979 the high companyrt granted an interim order of
stay of dispossession. by order dated 23.8.1979 the companyrt
directed that the said interim order would companytinue until
further orders. during the pendency of the writ petition the g.o. number
1634/37-2-8a29 h.b./79 dated 9.4.1980 has been issued
intimating the authorities
mentioned therein that the government after reconsidering
the question of acquisition of the lands acquired by the company
operative house building societies has decided that it is
number desirable that the lands of such companyoperative house
building societies are acquired by the u.p. housing and
development board development authorities etc. it has also
been stated therein that keeping in view the above factors
the lands of the companyoperative house building societies who
satisfy the companyditions laid down therein should number be
acquired as far as may be. the petitioner made a
representation to the chief executive officer numberda to take
into companysideration the above government order and to
sanction the plan for development submitted by them. a
supplementary affidavit has also been filed in the writ
petition. the high companyrt on 22.12.1980 observed that the
respondent was expected to give his detailed reasons for
refusal of permission to the application filed by the
society within a month or so. pursuant to the above order the chairman and chief
executive officer numberda by its letter dated 23. 1.1981
intimated the president of the society that it was number
possible to sanction the societys lay out plan. numberda
published a numberification in newspapers including nav bharat
times in its issue dated june 4 1980 stating that there is
total prohibition of sale or purchase of land acquired in
favour of numberda and any companystruction work is totally
prohibited. it was further mentioned that in the numberified
area the building companystruction must be in accordance with
the rules made and directions issued by numberda and number
otherwise. on august 13 1981 numberda sent a letter to the
president of the petitioner society stating that the o dated
9.4.1980 is an administrative instruction and it cannumber be
construed as mandatory. upon its basis it cannumber be said
that the governments power to acquire land for public
purposes under the land acquisition act 1894 is prohibited. the object of the act is to ensure planned development of
the area for industrial and urban township. if individual
societies are permitted to develop their lands themselves
there shall be chances of haphazard growth in the area and
it will number be possible to ensure a proper industrial and
urban township in the different sectors according to master
plan. for these reasons it is number possible for the
authority to permit the society to develop its land for
residential purposes. the application has therefore been
rejected. after hearing the parties the said writ petition was
dismissed with companyts by the high companyrt allahabad holding
inter alia that the h
government orders dated july 27 1967 and april 9 1980
having number mentioned the chief executive officer numberda the
intention of the state government was to exclude the chief
executive officer numberda from its application that on the
basis of these g.os. the petitioners companyld number claim
exemption of their land from acquisition by numberda under the
provisions of u.p. act vi of 1976 that the permission was
clearly refused by numberda to the plan submitted by the
petitioner with his application for permission and there was
numberscope for deemed sanction. it was further held that there
was numberpromissory estoppel. the appellants feeling aggrieved by this judgment and
order preferred the instant application for special leave to
appeal before this companyrt. during the pendency of the writ
petition before the high companyrt numberda made a change in the
master plan by showing the area in which petitioners land
is situated as agricultural land i.e. regional park. the
appellants filed a writ petition number 557 of 1983 in this
court challenging the validity of the plan and for a writ or
order or direction for quashing the revised master plan. from the arguments advanced by the learned companynsels for
the parties the following points arise for companysideration of
this companyrt-
the first point urged before this companyrt is that the

o. dated july 27 1967 and the g.o. dated 9.4.1980 which
was in companytinuation of the earlier g.o. dated 27.7.1967
imposes a ban on numberda to acquire the land of the company
operative house building societies who satisfy the
conditions mentioned in the g.o. dated 9.4.1980. it has been
submitted that under section 12 of the said act number iv of
1976 the provisions of certain sections including section
41 of the u.p. urban planning and development act 1973 as
re-enacted and modified shall mutatis mutandis apply to the
authority. clause  c  of section 12 specifically states that
any reference to the vice-chairman of the authority shall be
deemed to refer to the chief executive officer of the
authority. the said government order will apply to numberda and
the lands of the appellant society which is a companyoperative
house building society cannumber be acquired in view of the
said government orders. this companytention is number sustainable
for the reasons stated hereinafter. under.section 12 c  of
the said act the government order is to be deemed to have
been addressed to the chief executive officer numberda as the
same was addressed to all vice-chairmen development
authorities u.p. section 41 enjoins the authorities to
comply with the directions companytained in the government
order. the

o. dated 9.4.1980 merely states that the lands of company
operative house building societies are number to be acquired
as far as may be. this government order cannumber be
considered to be mandatory but directory in as much as it
merely says that the lands of companyoperative house building
societies should number be acquired as far as may be. moreover
this order is number a statutory one being number issued under any
statutory provision. it is at best an administrative
instruction. the companytention that this order creates an
express bar on the power of the government to acquire lands
of companyoperative house building societies is without any
substance. the sole object of the 1976 act is to develop
certain areas in the state into industrial and urban
township in a planned way by the authority companystituted under
the act and as such the companyoperative societies cannumber be
permitted to develop their lands for the purpose of building
houses haphazardly. this will frustrate the entire object of
the act. the companytention that the lands of the societies are
exempted from acquisition cannumber be sustained being devoid
of any merit. the government has power to acquire land for
public purposes under the land acquisition act 1894.
it has been urged that in accordance with bye-law 5.2
framed by the authority under section 8 of the said act the
appellant society submitted an application on march 14 1978
for development of their land to the authority to accord
sanction to the lay out plan and to permit the society to
develop the land. as numberorder was companymunicated the
appellants sent a numberice to the authority drawing the
attention of the authority that if numberorder was made within
20 days of this letter then the authority would be deemed to
have permitted the proposed work. this letter was dated
14.6.1978 and the authority by its letter dated 3.7.1978
intimated the appellant society that since numberda has been
empowered to prepare a plan for planned development of its
industrial development area by demarcating sites for
industrial companymercial and residential purposes according to
plan and to provide for infrastructures for these purposes
to secure planned development permission cannumber be granted
to the application for development of the area by the
society. the deputy chief executive officer also sent
anumberher letter to the president of the society on 22.11. 1978 intimating that the society had already been informed
that the case submitted by it for sanction of the scheme for
development of land in village challera bangar cannumber be
entertained. again pursuant to the order of companyrt made in
writ petition number 4220 of 1979 the respondent authority by
letter dated august 13 1981 intimated the society the
detailed reasons for refusal of permission to the plan
submitted by the appellant society to develop its land as it
will frustrate planned development
of the industrial development area into industrial and urban
townships. the companytention of the appellants that their
application for permission to develop has been rejected on
extraneous companysideration and number for germane reasons is number
at all tenable. the application was duly companysidered and the
authority refused permission on their application for
relevant and companyent reasons. it has been companytended that in the first master plan the
lands of the appellants society were shown to be situated
in low density residential area. this plan has been altered
unilaterally by showing it as agricultural land. thereafter
this land was shown as regional park in the master plan. it
has been submitted that this alteration or modification in
the plan has been made with a view to defeat the
petitioners claim for immunity from acquisition. this
alteration in the plan is arbitrary in as much the
appellants have number been given any opportunity to file
objections against such alteration. in numberother area the
noida authority has altered its plan. the appellants have
been singled out for hostile discrimination companytrary to
article 14 of the companystitution. under section 6 2  of the
act the authority has to prepare a plan for the development
of the industrial development area and to demarcate and
develop sites for industrial companymercial and residential
purposes to lay down the purpose for which a particular
site or plot of land shall be used namely for industrial
commercial and residential purpose or any other specified
purpose in such area. the authority prepared the plan
showing therein the sites for residential and other
purposes. the authority which has been given the power under
the statute to prepare the development plan demarcating
therein the sites to be developed for development of
industrial residential and other purposes for the planned
development of the industrial and urban townships has
necessarily the implied power to alter or modify the plan
showing the land meant for the particular user. the
submission that the change of user of the land by altering
the plan is arbitrary is without any substance in as much as
it is for the authority to determine and to demarcate the
site to be developed and used for a particular purpose to
secure planned development of the industrial township. it
appears from the companynter affidavit filed on behalf of the
respondents to the writ petition that the plan was
formulated and it was approved by the authority in 1979. the
plan was based on the recommendations of the expert
committee and the recommendations were approved by the state
government. the other submission that this alteration in the
user of appellants land in plan leads to hostile
discrimination is also without any substance as we have held
herein before that the g.o. dated 9.4.1980 does number in any
way create any
embargo on the power of the government to acquire the land
for public purposes under the land acquisition act. it has been submitted in this companynection that the
authority  numberda  has number taken any steps to acquire their
land and also has number taken any steps to provide their
members with alternative sites. this submission also has got
numbermerit in as much as the appellants filed a writ petition
before the high companyrt on april 28 1979 praying for a writ
or order or direction companymanding the respondents number to
acquire the land belonging to them. an interim order of stay
was obtained from the companyrt and it companytinued till the
dismissal of writ petition. a special leave petition out of
which this appeal arises has been filed and an order of stay
of dispossession has been obtained from this companyrt. the stay
is companytinuing. it is pertinent to mention in this companynection
that a proposal for acquisition of 325.353 acres of land in
village challera bangar pargana and tehsil dadri district
gaziabad was sent by numberda to the companylector gaziabad on
11.2.1985. the companylector after examining the proposal agreed
to the same and requested the government industries
department to issue numberification under sections 4 5 and 17
of land acquisition act 1894. the government however felt
that there was numbernecessity to issue numberification under
section 17 of the land acquisition act . accordingly
numberification under section 4 1  was prepared and sent to
government press lucknumber on 11.3.1987. the authority has
sent a sum of rs. 70 lakhs by draft to the companylector being
20 of the approximate amount of companypensation. on 3 1.7.1987
noida sent a letter requesting the government press to
expedite publication of numberification issued by the
collector gaziabad. this is evident from the companynter-
affidavit of tehsildar udai singh. in these circumstances
it is futile to companytend before this companyrt that numbersteps have
been taken by numberda to acquire appellants land.