criminal appellate jurisdiction criminal appeal number 206
of 1979.
from the judgment and order dated 27.9. 1978 of the
punjab and haryana high companyrt in criminal appeal number 17 13
of 1975.

s. sohal and s.k. jain for the appellant. mahabir singh and a.g. prasad for the respondent. the judgment of the companyrt was delivered by
fathima beevi j. raj kumari  20  the daughter of ishar
dass. was married to the appellant baldev raj a year before
her tragic death in february 1975. it appears that all was
number well with the companyple. raj kumari left for her parents
house in village raison 75 kms. away from her matrimonial
home in village urlana khurd. she stayed with her parents
for some days companyplaining ill-teatment by the husband. on
the assurance of the father-in-law she was sent back with
her husband hardly a companyple of months before the incident on
14.2. 1975. on that fateful day it is said that raj kumari
took meals to the appellant who was working in the wheat
field near his tubewell. raj kumari did number return home. her dead-body was discovered in the drain on 16.2. 1975.
multiple injuries were seen on her person. companyplaint was
lodged at the police station on february 16 1975 at about
5.30 p.m. against the appellant who was finally chargesheet-
ed for the offence under section 302 and 201 i.p.c. the
learned sessions judge companyvicted the appellant under section
302 i.p.c. and sentenced him to undergo imprisonment for
life. the high companyrt dismissed the appeal against the company-
viction and sentence. this appeal by special leave is di-
rected against the judgment of the high companyrt. the companyviction of the appellant is based on circumstan-
tial evidence only. the main item of the evidence companysists
of the extrajudicial companyfession stated to have been made by
the appellant in the presence of ishar dass  pw-3 . ramji
dass  pw-4  and satnam dass  pw-5  at the panchayat on 16.2. 1975. besides the recovery of incriminating articles at the
instance of the appellant and the motive as spoken to by
ishar dass. according to the prosecution on 15.2.1975 the
appellants father hakam chand companytracted ishar dass when
raj kumari was found missing from 14.2. 1975. ishar dass
arrived at village urlana khurd accompanied by satnam dass
sarpanch of his village and others. at the panchayat held
in the presence of ramji dass nand lal satnam dass and
others the appellant stated that he killed his wife in the
wheat field and threw the dead-body in the drain at night
after removing her ornaments. pws 3 4 and 5 testified the
fact but nand lal  dw-i  did number support the prosecution
version. it is also the prosecution case that the appellant
was handed over to and arrested by the police at the time
the companyplaint was lodged after the
discovery of the dead-body and that the appellant had pro-
duced the kassi and the gold ornaments companycealed in the hut
near the tubewell. pw-10. the sub-inspector of police
deposed to having interrogated the appellant and effected
the recovery on the basis of the statements made by the
appellant. ishar dass  pw-3  narrated the events that pre-
ceded the occurrence and also proved the letter he had
received from the appellants father when raj kumari was
staying with him. he also stated the circumstances under
which he happened to be at the panchayat on 16.2. 1975 along
with the others after being informed by hakam chand. pws 4
and 5 fully companyroborated the evidence of pw-3 in that the
appellant had companyfessed his guilt in their presence. the
evidence was accepted by the trial companyrt and the high companyrt
to sustain the companyviction against the appellant. the argument on behalf of the appellant that the medical
evidence is companyflicting with the prosecution case was re-
jected by the high companyrt finding that the ante-mortem in-
juries found on the body of kumari companyld have been caused
with the weapon recovered even on the statement made by the
doctor  pw-1 . the recovery of the bloodstained earth from
the wheat field near the tubewell recovery blood-stained
kassi and the ornaments worn by raj kumari by pw-10 in the
opinion of the high companyrt lent assurance to the statement
mad by the appellant before the panchayat. the high companyrt
was of the view that the various circumstances companyclusively
proved the guilt of the appellant beyond reasonable doubt. the main companytention advanced on behalf of the appellant
before us is that the high companyrt failed to appreciate the
inherent infirmities in the prosecution evidence and that
there is numberlegal evidence to support the findings. it was
maintained that the testimony of pws 3 4 and 5 relating to
the extra-judicial companyfession is discrepant and incredible
that the companyfession even if true was number voluntary but
induced and the same having been retraced cannumber form the
basis for a companyviction in the absence of any material company-
roboration. the learned companynsel for the appellant companytended that the
high companyrt had refused to give benefit of doubt to the
accused despite facts apparent on the face of the record any
interference is called for. the extra-judicial companyfession
according to the learned companynsel being a very weak piece of
evidence companyld number have been accepted as true or voluntary
in view of the admission made by the prosecution witnesses
and improvement in the story given by ishar dass. he pointed
out that at the panchayat the appellant was induced to make
a statement on the
promise that he would be pardoned and therefore the companyfes-
sion is unacceptable. numbermally this companyrt does number interfere with the companycur-
rent findings of the facts of the companyrts below in the ab-
sence of very special circumstances or gross errors of law
committed by the high companyrt and violation of the well estab-
lished principles of the appreciation of circumstantial
evidence which results in serious and substantial miscar-
riage of justice to the accused. we heard the learned companyn-
sel at length. we find that the high companyrt was right in its
conclusion and there is numbergood ground for interference. the first information was lodged by ishar dass at the
police station where the appellant was also present. in the
first information report itself ishar dass has narrated the
story of the panchayat having been held in the presence of
pws 4 and 5 and the appellant having made the companyfession. pw-5 accompanied ishar dass from village raison. it is
difficult to hold that these persons hailing from anumberher
village would have been in a position to influence the local
people against the appellant and foist a case against him. pw-4 lambardar  ramji dass  substantially supported the
prosecution case. the companyrts below have carefully analysed
the evidence and accepted the same. as rightly pointed out
by the high companyrt we find numbermerit in the submission that
the medical evidence is number in companysonance with the prosecu-
tion case. the facts that the autopsy was held nearly 72
hours after the injuries were caused and the witnesses were
examined long after the weapon was recovered are relevant in
appreciating the evidence of the medical witness. the evi-
dence of this witness read as a whole is only companysistent
with the case that the injuries companyld have been caused with
the weapon. the fact that the appellant made the companyfession
is proved by companyent evidence. the circumstances that his
father was present throughout and the appellant himself did
number protest when he was present at the police station nega-
tives the suggestion of inducement or threat. the discovery
of the dead-body from the drain through the wheat field
presence of blood in the field recovery of gold ornaments
from the roof of the hut and blood stained kassi from its
premises near the tubewell are material circumstances pro-
viding companynecting links in the chain of circumstantial
evidence. the appellant when examined did number offer any
explanation except to deny his involvement. ishar dass
testified to the fact that raj kumari had companyplained about
the ill-treatment by her husband. in the light of such
evidence it is preposterous to maintain that the deceased
may have been assaulted by some unidentified assailant
somewhere in the fields and the appellant
had been falsely implicated in the offence. the companyfessional statement is number a long narration. the
substance of the statement is that the appellant killed his
wife and threw the dead-body in the drain. pw-4 is the
lambardar of village urlana khurd and pw-5 the sarpanch of
gram panchayat of village raison. the fact that a panchayat
was held at village urlana khurd is admitted even by the
hostile witness nand lal  dw-i . ishar dass when informed by
hakam chand at his village that raj kumari was found missing
entertained suspicion. he met his villagers and proceeded to
the appellants village the next day along with the sar-
panch and other persons. the panchayat was held there on
16.2. 1975. the appellant and his father were brought before
the panchayat. the appellant was questioned and was asked to
speak the truth and then the appellant with folded hands
said that he murdered his wife in the wheat field when she
came there with meals and later threw the dead-body in the
drain. the prompting by the panchayat does number amount to
inducement or threat and the circumstances under which the
statement was made leave numberroom for doubt that the companyfes-
sion was voluntary. an extra-judicial companyfession if voluntary can be
relied upon by the companyrt along with other evidence in company-
victing the accused. the value of the evidence as to the
confession depends upon the veracity of the witnesses to
whom it is made. it is true that the companyrt requires the
witness to give the actual words used by the accused as
nearly as possible but it is number an invariable rule that the
court should number accept the evidence if number the actual
words but the substance were given. it is for the companyrt
having regard to the credibility of the witness to accept
the evidence or number. when the companyrt believes the witness
before whom the companyfession is made and it is satisfied that
the companyfession was voluntary companyviction can be rounded on
such evidence. keeping these principles in mind we find
that the companyfession has been properly accepted and acted
upon by the companyrts below and there is numberscope for any doubt
regarding the companyplicity of the appellant in the crime. the
confession of the appellant was voluntary. the testimony of
pw-4 and pw-5 being responsible persons companyld number be doubted
in the absence of any material to show that they had been
motivated to falsely implicate the appellant. the very
presence of the appellant and his father with the party of
ishar dass throughout the operation upto lodging of company-
plaint at the police station dispel any suspicion against
the prosecution case and clearly point to the truthfulness
of the same. we are therefore unable to find any infirmity
in the companyfession which has been accepted and relied upon by
the companyrts below. the circumstances proved are companyclusive of the guilt of
the appellant and incapable of being explained on any other
reasonable hypothesis.


civil appellate jurisdiction civil appeal number 625 of
1972.
from the judgment and order dated 13.9.1971 of the
punjab haryana high companyrt in l.p.a. number 254 of 1971.

k. bagga for the appellants. the judgment of the companyrt was delivered by
misra j. the present appeal by special leave is
directed against the judgment of a division bench of the
high companyrt of punjab and haryana dated 13th september 1971
dismissing the letters patent appeal against the judgment of
a learned single judge dated 17th march 1971 allowing the
writ petition filed by the respondents. the short question that falls for companysideration in the
present appeal is whether the amount of loan in question can
be
recovered as arrears of land revenue by arrest and detention
in view of cl. 4 of the loan agreement. dera baba nanak companyoperative house building society
ltd. respondent number 2 was a registered society. it had 32
members to start with. the society entered into an agreement
with the government of panjab whereunder the government
agreed to advance a loan of rs. 102000 to its members
under the lower income group housing scheme for the purpose
of companystructing residential houses on the site measuring 35
100 sq.ft. in dera baba nanak. the agreement was evidenced
by a written document. under the terms of the agreement the
govt. was to advance the loan in three instalments - the
first instalment of rs. 20400 was to be paid by the
government on the execution of the deed of agreement the
second instalment of rs. 51000 was to be paid on the
completion of the house to the plinth level ant the last
instalment of rs. 30600 on the companypletion of the house to
the roof level. the members of the society on the other hand
had to repay the loan advanced with interest in thirty
annual instalments the first instalment was to become due
twelve months after the date of sanctioning the first
instalment of loan. it was further stipulated that the
society would mortgage the said sites together with houses
erected or to be erected thereon thereafter to the
government as security for the repayment of the said loan
and interest. the loan agreement further companytemplated that
the government would recover the amount of loan first from
the property mortgaged and if there was a shortfall then
the government shall be entitled to recover the same
personally from the borrowers as well as from the movable or
other immovable property belonging to the borrowers. the society pursuant to the terms of the agreement
executed the mortgage. the government in their turn issued a
cheque for rs. 71400 as payment towards the first two
instalments on 24th of march 1956. the third instalment of
rs. 30600 was however number paid by the government to the
society on the ground that it had number furnished the required
certificates that the houses had reached the roof level. the
members of the society also failed to repay the loan as
stipulated. in the situation a numberice was issued by the
collector of the district to the members of the society to
deposit the overdue instalments of loan and to appear before
the deputy companymissioner gurdaspur on august 24 1964 to
show cause why the entire amount should number be recovered
from them by means of arrest and detention. the society
challenged the numberice by filling a writ petition in the high
court. its stand was
that in the absence of any such stipulation in the
loan agreement the amount companyld number be
recovered by arrest of the members of the society in the
first instance. the writ petition remained pending for more
than six years but numberinstalments had been paid by the
members of the society to the government during that period. the claim was resisted by the government. in writ
petition was however allowed by the learned single judge
by his judgment dated 17th march 1971 holding that the
government must resort to the companytractual remedy which it
reserved to itself when entering into the loan agreement. m
e state preferred a letters patent appeal which was
summarily dismissed. the state has number approached this companyrt
by special leave. the learned companynsel appearing for the state relied upon
cl.  b  of 8. 67 of the punjab land revenue act. this
section provides the process for the recovery of arrears of
land revenue and one of the modes prescribed by cl.  b  of
8. 67 is by arrest sums detention of the borrowers person. reliance was also placed on s. 98 of the said act which
enumerates what sums are recoverable as arrears of land
revenue and cl.  dd  of s. 98 includes a loan advanced by
the state government towards the companyt of the house or site
under the government sponsored housing scheme together with
interest chargeable thereon and companyts if any in making or
recovering the same as land revenue. the companynsel for the
respondents on the other hand strenuously relies upon cl. 4
of the agreement of loan and companytends that in view of the
agreement between the parties the government has to proceed
first against the property mortgaged and in case of a
shortfall other methods companyld be resorted to. it will be
pertinent at this stage to refer to cl. 4 of the loan
agreement which reads

for the companysideration aforesaid and as
security for the repayment to the government of
the said loan and interest the borrower hereby
transfers to the government the said sites
together with houses number erected or hereafter to
be erected thereon to the intent that the same
shall remain and be charged by way of mortgage in
the manner following namely that for the purpose
of recovering the said loan and interest and any
other sum as may become due by the borrower to the
government by virtue of these presents the
government may at its option either sell the
said sites and the houses erected or hereafter to
be erected thereon or any part thereof
without the intervention of any companyrt or enforce
against the said property all or any of the
remedies of simple mortgage and in case the
realisation from the property mentioned above
falls short of the amount due to the government
under these presents the government shall be
entitled to recover the same personally from the
borrower as well as from the movable or other
immovable property belonging to the borrower. a bare reading of c. 4 of the agreement makes it
evidently clear that the government has first to proceed
against the property mortgaged and sell the property. only
in case the entire amount companyld number be realised that the
government companyld proceed against the borrower personally. the government is as much bound by the agreement as the
borrower and therefore the government has first to proceed
against the mortgaged property. during the companyrse of argument reliance was placed upon
ram narayan agarwal etc. v. state of u.p. ors. 1983 3

c.r. 684. in that case the petitioners had companymitted
default in payment of the tax payable by them under the u.p. sales tax act 1948. the amount due was sought to be
recovered as arrears of land revenue. the procedure for such
a recovery was provided by ss. 279 and 281 of the u.p. zamindari abolition and land reforms act 1950 read with rr. 246 247a 247b and 251 of the u.p.z.a. and l.r. rules
1952. clause  b  of sub s.  1  of s. 279 of the u.p.z.a
and l.r. act companytemlates of recovery of the amount due by
resort to arrest and detention of the person companycerned. the
procedure companytained in u.p.z.a. and l.r act and the rules
made thereunder was challenged on the ground that they are
violative of arts 14 19 1   g  and 21 of the companystitution
but this companytention was overruled and it was definitely held
that the impugned procedure companytained in the u.p.z.a. and

r. act and the rules made thereunder were number violative of
arts. 14 19  1   d  and 21 of the companystitution. the writ
petitions were however allowed in the case on the ground
that there was number-compliance with rule 251 of the rules
which obligates an enquiry to be made by the officer who
issued the warrant into the question whether the detention
of the defaulter would companypel him to pay the arrear or a
substantial portion thereof and admittedly numbersuch enquiry
was held in any of those cases and in these circumstances it
was held that the petitioners companyld number be detained pursuant
to any warrants already issued. such is number the position in
this case and therefore. that case is number of much
assistance.


civil appellate jurisdiction civil appeal number 454 of 1957.
appeal from the judgment and order dated december 16 1954
of the companyrt of judicial companymissioner ajmer in civil appeal
number 134 of 1952.

v. viswanatha sastri s. n. andley rameshwar nath and

l. vohra for the appellants. c. kasliwal advocate-general rajasthan s. k. kapur
and t. m. sen for the respondent. 1961. april 24. the judgment of the companyrt was delivered by
ayyangar j.-this is an appeal on a certificate granted by
the judicial companymissioner ajmer and is directed against
the judgment of that companyrt dated december 16 1954 by which
the decree in favour of the respondent-union of india-was
affirmed. seth lal chand kothari-the original first appellant in the
appeal before us  he died pending this appeal and his heirs
have been brought on record as his legal representatives
appellants 1 to 6  was appointed by the companymissioner ajmer-
merwara as government treasurer ajmer-merwara by an order
dated february 20 1940 the treasuries to be under his
charge being two-that at ajmer and a subtreasury at beawar. before accepting office he had under the rules to deposit
government promissory numberes to the extent of rs. 60000 and
also execute a security bond for a like amount with two
sureties to companyer any loss to the government in these
treasuries. he accordingly made the deposit and a security
bond was executed by him on february 27 1940 with seth
phool chand-who is number the 7th appellant in the appeal and
one seth kanwarlal ranka who died even before the suit and
was number impleaded in it. thereupon lal chand kothari was
directed to take charge of the office as treasurer and he
did so on march 6 1940.
we are number companycerned with the treasury at ajmer but only
with that at beawar. lal chand at the time of his taking
charge executed a receipt headed charge-report and in it
is recited that he had taken over from the previous
incumbent  vi. l. patni  the amount of cash which tallied
with what had to be in the treasury according to the books. numberhing happened between 1940 and 1948 and the business at
the treasury appeared to be proceeding regularly and
according to the rules. it may be mentioned that there were
the usual periodical checks and audits by
government officials but numberimpropriety was discovered
during these checks or audits. on march 31 1948 the extra
assistant companymissioner ajmer made a check of the treasury
at beawar. the treasury staff who ought to have been there
were however absent in spite of their having had prior
intimation of his arrival and there-upon he directed the
treasury to be sealed. there were two cash chests at this
sub-treasury-one secured with a single lock the key of
which was with the staff of the treasurer and the other with
doublelocks the keys of which were held one by the emplo-
yee of the treasurer and the other by the government
treasury officer-the tahsildar. a verification of the
balance in the two chests disclosed that a sum of 7 annas 9
pies was missing from the single-lock chest and rs. 84215
from the chest with the double-lock. the government
thereupon took proceedings to realise the missing amount
from the security of rs. 60000 which had been under
deposit. the government securities were sold and they
realized about rupees 58 thousands and odd leaving a sum of
rs. 25786-13-9 still due. the union of india thereupon
filed a suitcivil suit 125 of 1951 before the sub-judge
first class beawar on the security bond dated february 27
1940 against lal chand kothari and seth phool chand for
recovery of this sum. several defences were raised by the
defendants but they were all rejected by the learned
subordinate judge who granted the respondents a decree in
terms prayed for in the suit. the defendants filed an
appeal to the judicial companymissioner who dismissed it but
having regard to the fact that some of the defences turned
on the interpretation of the security bond dated february
27 1940 granted a certificate under art. 133 1  of the
constitution and that is how the appeal is number before us. neither the factum of the loss by embezzlement number its
amount is in question and the only points raised for
consideration are  1  whether on the terms of the bond the
decree in favour of the appellants companyld be sustained  2
whether the claim in the suit was number barred by limitation. the argument on this second
point was that if art. 83 of the indian limitation act
governed the claim it would be barred and that the
provision companytained in art. 149 prescribing a 60-year period
of limitation for suits by the government was si
unconstitutional as violative of art. 14 of the companysti-
tution. it is this last plea that has led to the appeal
being heard by this larger bench. as regards the first point that the suit claim was number
comprehended within the terms of the security bond learned
counsel made three submissions  1  in order to render the
defendants liable the loss sustained by the government must
be proved to have occured on or after march 6 1940 on which
date alone lal chand kothari took charge of the treasury. though loss to the extent set out in the plaint did occur at
the treasury in beawar learned companynsel urged the plain. tiff-respondent had number proved that it occurred after march
6 1940. in other words the argument was that there was no
physical checking on march 6 1940 when he took over and
because of this one companyld number be certain whether it was a
loss which had occurred during the period of the previous
incumbent in office or companyld with certainty be attributed to
the period subsequent to march 6 1940. this argument was
rejected by the companyrts below and in our opinion companyrectly. in the face of the receipt executed by lal chand kothari it
would number be open to him to companytend that the recitals in it
were number companyrect and in any event it would be for him to
show that it was incorrect and of companyrse there was no
possibility of his establishing this. it was next urged that on the terms of the bond read in
the companytext of the surrounding circumstances lal chand
kothari would be liable only for the deficiency in the chest
with the single-lock and number for the loss or embezzlement or
deficiency in the other chest with the double-lock. the
whole basis of this argument was that the security deposit
of rs. 60000 and the security bond for the like amount
executed by the treasurer was an indication that it was with
reference to the amount which was the maximum in the chest
under the single-lock and from this feature it was
urged that it was the intention of the parties that lal
chand kothari would number be responsible for any embezzlement
loss or deficiency in the other chest. this submission is
without any foundation because the liability under the bond
would depend upon its terms and in the face of the language
used in the document learned companynsel realised that the
submission companyld number be seriously maintained. the last submission under this head was that the loss
having occurred in the chest with the doublelock this companyld
number have been without the companynivance of government officials
and that therefore the liability of the treasurer was
excluded. learned companynsel also drew our attention to the
fact that the terms of the bond made lal chand liable even
for embezzlement by government officers numberwithstanding
that he had numbercontrol over them. but if lal chand agreed
to those terms-and this is number disputed the terms must pre-
vail. apart from the terms of the security bond however it
would be apparent that if the key of one of the locks was
with the employee of the treasurer the defecation companyld number
have occurred without such employees companynivance or
negligence. if so the fixing of liability upon the
employer companyld number be characterised even as unreasonable
apart from the liability flowing from the terms of the bond
and such a vicarious liability for the negligence or
misconduct of his servants is number lessened by reason of the
assistance or negligence of government officials. these exhaust the points urged based on the terms of the
bond. it remains to deal only with the companytention that the
claim is barred by limitation under art. 83 of the
limitation act on the plea that art. 149 of the limitation
act which fixes a period of 60 years for suits by the
government is unconstitutional as violating art. 14 of the
constitution. it is urged that there is numberrational basis
for treating claims by government differently from those of
private individuals in the matter of the time within which
they companyld be enforced by suit. learned companynsel urged that statutes of limitation were
statutes of repose and enacted to ensure that stale
claims were number agitated so that after a reasonable length
of time people might proceed on the footing that they would
number be held liable for possible claims against them. basing
himself on these principles the argument of the learned
counsel was that for the purpose of agitating claims no
distinction companyld be drawn between government and private
individuals and that on numberrational basis companyld a
legislation which permitted a longer period of limitation
for claims by the state be sustained. it is numberdoubt true that lord kenyon described statutes of
limitation as statutes of repose  vide per dallas c. j.
in tolson v. kaye  1   and bramwell b. as statutes of
peace  hunter v. oibbons  2   though sometimes companytrary
opinions have been expressed. in re baker  3  companyton l.
j. observed that pleas of limitation would never be looked
upon with any favour since they are used to defeat debts
clearly due. it is however unnecessary to examine further
the theory underlying statutes of limitation. we shall
proceed on the generally accepted basis that they are
designed to effectuate a beneficent public purpose viz. to
prevent the taking away from one what he has for long been
permitted to companysider his own and on the faith of which he
plans his life habits and expenses. this however does number militate against there being a
rational basis for a distinction being drawn between the
claims of the state and the claims of the individual in the
matter of a provision of a bar of limitation for enforcing
them. in companysidering this matter two points have to be kept
separate  1  whether a distinction companyld be drawn or a
classification supported between the provision of any
variation in the time that should be available for enforcing
claims by private individuals and claims by the state  2
whether if such a classification were good the period of
60 years provided by art. 149 of the indian limitation act
is such a long period of time as to be unreasonable. we are
drawing attention to the distinction between these two
points because learned companynsel laid
 1   1822  2 brod. b. 217 223 129 e.r. 1267 126g.  2   1856  26 l.j. ex. 1 5.  3   1890  44 ch. d. 262 270.
much stress on the fact that the period of limitation fixed
by art. 149 was 60 years and that this was an unreasonably
long period of time. if learned companynsel is right in his
submission that there is numberrational basis for placing
private individuals and the government in different classes
while framing a legislation providing for limitation for
actions he might succeed but if he is wrong there and the
correct view is that there is a rational basis of
classification then the period that should be allowed to
the government to file a suit would be a matter of
legislative policy and companyld number be brought within the scope
or purview of a challenge under art. 14 or indeed of any
other article in the companystitution. it is sufficient
therefore if we companyfine ourselves to the first point viz. whether there is a rational basis for treating the
government differently as regards the period within which
claims might be put in suit between the government on the
one hand and private individuals on the other. first and foremost there is this feature that the limitation
act though a statute of repose and intended for quieting
titles and in that sense looks at the problem from the
point of view of the defendant with a view to provide for
him a security against stale claims addresses itself at the
same time also to the position of the plaintiff. thus for
instance where the plaintiff is under a legal disability to
institute a suit by reason of his being a minumber or being
insane or an idiot it makes provisions for. the extension
of the period taking into account that disability. similarly public interest in a claim being protected is
taken into account by s. 10 of the act by providing that
there shall be numberperiod of limitation in the case of
express trusts. it is number necessary to go into the details
of these provisions but it is sufficient to state that the
approach here is from the point of view of protecting the
enforceability of claims which if the ordinary rules
applied would become barred by limitation. it is in great
part on this principle that it is said that subject to
statutory provision while the maxim vigilantibus et number
dormientibus jura subveniunt is a rule for the subject the
maxim nullum tempus occurit regi
is in general applicable to the crown. the reason assigned
was to quote companye that the state ought number to suffer for
the negligence of its officers or for their fraudulent
collusion with the adverse party. it is with this
background that the question of the special provision
contained in art. 149 of the act has to be viewed. first
we have the fact that in the case of the government if a
claim becomes barred by limitation the loss falls on the
public i.e. on the companymunity in general and to the benefit
of the private individual who derives advantage by the lapse
of time. this itself would appear to indicate a sufficient
ground for differentiating between the claims of an
individual and the claims of the companymunity at large. next
it may be mentioned that in the case of governmental
machinery it is a knumbern fact that it does number move as
quickly as in the case of individuals. apart from the delay
occurring in the proper officers ascertaining that a cause
of action has accrued-government being an impersonal body
before a claim is launched there has to be inter-
departmental companyrespondence companysultations sanctions
obtained according to the rules. these necessarily take
time and it is because of these features which are sometimes
characterised as red-tape that there is delay in the
functioning of government offices. it is precisely for this
reason that we have from the earliest civil procedure companyes
provisions which find place in the companye of 1908 like
o.27rr.5 and 7 reading
0. 27. r. 5. the companyrt in fixing the day for
the government to answer to the plaint shall
allow a reasonable time for the necessary
communication with the government through the
proper channel and for the issue of
instructions to the government pleader to
appear and answer on behalf of the government
and may extend the time at its discretion. 0. 27. r. 7 1 . where the defendant is a
public officer and in receiving the summons
considers it proper to make a reference to the
government before answering the plaint he may
apply to the companyrt to
grant such extension of the time fixed in the
summons as may be necessary to enable him to
make such reference and to receive orders
thereon through the proper channel. upon such application the companyrt. shall
extend the time for so long as appears to it
to be necessary. these matters apart the ratio underlying the special
provisions for summary recovery of amounts due to government
without resort to suits by a procedure number available for
enforcing the dues of private individuals like the revenue
recovery acts and public demands recovery acts which
have been on the statute book for over a century is also
similar viz. the interest of the public and of the
community in realising what is due to it expeditiously and
the companystitutional validity of such provisions have been
sustained by this companyrt. in purshottam govindji halai v.
desai  1  this companyrt held that s. 13 of the bombay land
revenue act 1876 by virtue of which a person had been
arrested in pursuance of a warrant issued for recovery of a
demand certified under s. 46 2  of the indian income-tax
act did number offend art. 14 of the companystitution. similarly
in companylector of malabar v. ebrahim  2  the arrest of a
defaulter in respect of an income-tax demand under s. 48 of
the madras revenue recovery act was held number to offend art. 14 of the companystitution. perhaps anumberher decision of this
court of more immediate relevance in which the point number
raised that there is numberrational basis for distinguishing
between the claims of the government and the claims of
private individuals-was companysidered and negatived is that in
mannalal v. companylector jahalwar  3  in which judgment was
delivered on december 7 1960. in this last case it was
urged before this companyrt that the summary mode of recovery of
amounts due to the government for which provision was made
by the rajasthan public recovery act there impugned a mode
of recovery which was number available to the private citizen-
contravened the equal protection of
 1  1955 2 s.c.r. 887.  2  1957 s.c.r. 970.  3  1961 2 s.c.r.


criminal appellate jurisdiction crimitial appeal number 22
of 1976.  appeal by special leave from the judgment and order
dated the 12th september 1975 of the punjab and haryana high
court in criminal revision number 314 of 1973 . l. kohli for the appellant. p. sharma for respondent. the judgment of the companyrt was delivered by
bhagwati j.--we made an order on 28th january 1977
immediately after the companyclusion of the hearing of the
appeal and by that order we allowed the appeal and set
aside the order of companyviction and sentence recorded against
the appellant. we number proceed to give our reasons for
making that order. the appellant was tried and companyvicted by the judicial
magistrate 1st class ludhiana for offences under sections
468 411 and 420 read with section 109 of the indian penal
code. he carried an appeal to the sessions companyrt but the
appeal was unsuccessful. a further revision application
followed but that too was rejected by the high companyrt. hence
the present appeal by special leave
1009
the facts giving rise to the prosecution are set out in
great detail in the judgment of the high companyrt and hence it
is number necessary to reiterate them. it is enumbergh to state
that 354 black iron sheets worth rs. 17701.91 were des-
patched by hindustan steel plant from munda near bhilai to
m s. shiv rattan mohatta at bikaner in wagon number sekc 4075.
the railway receipt in respect of this companysignment was sent
to m s shiv rattan mohatta through the state bank of bikaner
and m s shiv rattan mohatta took delivery of the railway
receipt against payment to the bank. the companysignment
however did number reach bikaner and on enquiries being made
it was found by the railway authorities that the wagon
containing the goods had reached agra en route bikaner but
at some point of time before it reached agra the labels
attached to the wagon were either changed or removed and the
entry in the vehicle summary guidance was also tempered with
and changed to ex. lar indicating that the wagon was des-
patched from lalitpur and its destination was ludhiana. the
result was that wagon instead of going to bikaner was
carried to ludhiana and it reached there on 1st august
1964.
the prosecution case was that round about this time
one person. styling himself .as umedi lal resident of agra
approached a firm called m s jindal khemka company which was
carrying on business as dealers in iron sheets in ludhi-
ana. umedi lal produced a railway receipt ex. pw 10/a
before joginder lal and ram nath partners of this firm and
offered to sell the goods companyered by this railway receipt to
m s jindal khemka company this railway receipt was a forged
document written out on a blank form stolen from the railway
receipt book maintained at a railway station called banmore. joginder lal went to ludhiana railway station with this
railway receipt on 2nd august 1964 for taking delivery of
the goods and presented the railway receipt to teja singh
sodhi who was the goods clerk on duty at the goods-sheet. teja singh entertained some doubt about the genuineness of
the railway receipt and he told joginder lal that the rail-
way receipt appeared to be defective. in view of this
joginder lal according to the prosecution returned the
railway receipt to umedi lal on the following day when he
came to enquire about the receipt of the goods. umedi lal
then went to the railway station accompanied by one shoja
ram who was a washing soap dealer in ludhiana and present-
ed the railway receipt to teja singh sodhi for taking deliv-
ery of the goods. curiously enumbergh though only a day
before teja singh-sodhi had entertained doubt about the
genuineness. of the railway receipt his doubts suddenly
seemed to have vanished and he delivered the companysignment of
354 black iron sheets which had companye in wagon number sekg
40765 to umedi lal. it does number appear from the record us to
where this companysignment of 354 black iron sheets was kept by
umedi lal but out of it 200/250 iron sheets were taken to
the premises of m s jindal khemka company for sale on companymis-
sion basis. joginder lal and ram nath were however ac-
cording to the prosecution advised by some broker that
since iron sheets were companytrolled items they should insist
on production of a bill showing purchase of these iron
sheets by umedi lai. joginder lal and ram nath according
asked umedi lal to produce
1010
the bill in companynection with the purchase of these iron
sheets but umedi lal pleaded his inability to do so on the
ground that these iron sheets represented surplus goods
remaining after execution of a works companytract by his firm of
m s bansidhar sons of lalitpur. when this talk took place
between joginder lal and ram nath on the one hand and umedi
lal on the other umedi lal was according to the prosecu-
tion accompanied by the appellant who was at the material
time employed as a guard in the numberthern railway. since
joginder lal and ram nath refused to purchase the iron
sheets umedi lal removed the same in three carts and passed
a receipt in respect of the same in favour of m s jindal
khemka company the prosecution case was that at this time
also umedi lal was accompanied by three or four persons who
included the appellant. it appears that since m s shiv rattan mohatta did number re-
ceive delivery of the iron sheets companysigned to them in wagon
number sekc 40765 they lodged a claim with the railway admin-
istration and this led to enquiries being made by the rail-
way administration. ultimately the railway administration
filed a first information report with the special police
establishment ambala branch and following upon the first
information report the police started investigation. during the companyrse of investigation the police entertained
suspicion against the appellant and they obtained from the
appellant specimen handwritings pw 27/37 to pw 27/57 for the
purpose of companyparing them with the handwriting on the rail-
way receipt ex. pu 10/a which was a forged document. the
police also requested the railway authorities to direct the
appellant and one ameeruddin who was also an employee of
the railway administration to subject themselves to test
identification parade at the hands of the special railway
magistrate patiala. the appellant and ameeruddin accord-
ingly went to patiala and they were taken to the central
jail and there a test identification parade was held at
which joginder lal failed to identify the appellant but ram
nath after some hesitation managed to identify him. the
specimen handwritings of the appellant exs. pw 27/ 37 to pw
27/57 were sent along with the railway receipt ex. pw
10a to b. lal government examiner of questioned docu-
ments and b. lal gave his opinion that the writing marked at
a1 on the railway receipt ex. pw 10/a and the specimen
handwritings pw 27/37 to 27/57 were all by one and the same
person. the appellant was on the basis of this material
put up for trial before the judicial magistrate 1st class
ludhiana. the learned magistrate companyvicted the appellant
and his companyviction was maintained in appeal as well as
revision. the question is whether the material on record
was sufficient to justify the companyviction of the appellant. we have carefully gone through the evidence but we find
it difficult to sustain the companyviction of the appellant. the only two pieces of evidence against the appellant are
the evidence of b. lal the handwriting expert who identi-
fied the handwriting on the forged railway receipt ex. pw
10/a as that of the same person who wrote the specimen
signatures exs. pw 27/37 to pw 27/57 and the evidence show-
ing the presence of the appellant with umedi lal at ludhiana
when the talk took place between umedi lal on the one
1011
hand and joginder lal and ram nath on the other in companynec-
tion with the sale of the iron sheets. we do number think that
these two pieces of evidence are at all satisfactory and in
any event on companyviction can be rounded on them. in the first place it may be numbered that the appellant was
at the material time a guard in the employment of the rail-
way administration with his headquarters at agra and he had
numberhing to do with the train by which wagon number sekg .40765
was despatched from munda to bikaner number with the train
which carried that wagon from agra to ludhiana. he was number
a guard on either of these two trains. there was also no
evidence to companynect the appellant with the theft of the
blank railway receipt at banmore station. it is indeed
difficult to see how the appellant who was a small employee
in the railway administration. companyld have possibly companye
into possession of the blank railway receipt from banmore
station which was number within his jurisdiction at any time. it is true that b. lal the handwriting expert deposed that
the handwriting on the forged railway receipt ex. pw 10/a
was that of the same person who wrote the specimen handwrit-
ings ex. 27/37 to 27/57 that is the appellant but we
think it would be extremely hazardous to candemn the appel-
lant merely on the strength of opinion evidence of a hand-
writing .expert. it is number well settled that expert opinion
must always be received with great caution and perhaps numbere
so with more caution than the opinion of a handwriting
expert. there is a profusion of precendential authority
which holds that it is unsafe to base a companyviction solely on
expert opinion without substantial companyroboration. this
rule has been universally acted upon and it has almost
become a rule of law. it was held by this companyrt in ram
chandra v. state 1  that it is unsafe to treat expert hand-
writing opinion as sufficient basis for companyviction but it
may be relied upon when supported by other items o internal
and external evidence. this companyrt again pointed out in
ishwari prasad v. md. isa 2  that expert evidence of hand-
writing can never be companyclusive because it is after all
opinion evidence and this view was reiterated in shashi
kumar v. subodh kumar  3  where it was pointed out by this
court that experts evidence as to handwriting being opinion
evidence can rarely if ever take the place of substantive
evidence and before acting on such evidence it would be
desirable to companysider whether it is companyroborated either by
clear direct evidence or by circumstantial evidence. this
court had again occasion to companysider the evidentiary value
o expert opinion in regard to handwriting in fakhruddin v.
state 4  and it uttered a numbere of caution pointing out that
it would be risky to found a companyviction solely on the evi-
dence of a handwriting expert and before acting upon such
evidence. the companyrt must always try to see whether it is
corroborated by other evidence direct or circumstantial. it is interesting to numbere that the same view is also echoed
in the judgments of english and american companyrts. vide
gurney v. langlands 5  and matter of alfred

air 1957 sc 381.  2  air 1963 sc 1728

air 1964 sc 529  4  air1967 sc 1326
 5  1822 5b qld 330
1012
fogters will 1 . the supreme companyrt of michigan pointed out
in the last mentioned case every one knumbers how very unsafe
it is to rely upon any ones opinion companycerning the nice-
ties of penmanship--opinions are necessarily evil and may
be valuable but at best this kind of evidence vii. we
need number subscribe to the extreme view expressed by the
supreme companyrt of michigan but there can be numberdoubt that
this type of evidence being opinion evidence is by its very
nature weak and infirm and cannumber of itself form and
the basis for a companyviction. we must therefore try to see
whetherin the present case there is apart from the evi-
dence of the hand. writing expert b. lal any other evidence
connecting the appellant with the offence. the only other evidence which was sought to be relied
upon on behalf of the prosecution was that showing the
presence of the appellant with umedi lal at ludhiana when
there was talk between umedi lal on the one hand and jogind-
er lal and ram nath on the other in regard to the sale of
the iron sheets. but this evidence is wholly unsatisfactory
and does number inspire any companyfidence at all. in the first
place it is difficult to see why the appellant should have
one with umedi lal to ludhiana for the purpose of selling
the iron sheets. the appellant was a mere railway guard and
even if it be assumed for the purpose of argument that his
service were utilised for the purpose of forging the railway
receipt ex. pw 10/a there is numberreason why he should have
been persuaded to accompany umedi lal to ludhiana. it is
true that the appellant was on leave from 1st august
1964 to 16th august 1964 but from that circumstance it
does number follow that he had gone to ludhiana in companynection
with the sale of the iron sheets. even according to the
prosecution the appellant was in ludhiana only on 6th
august 1964 and that would number necessitate the appellant
taking such a long leave from 1st august 1964 to 16th
august 1964. the leave taken by the appellant from 1st
august 1964 to 16th august 1964would number necessarily
support the inference that the appellant was present in
ludhiana on 6th august 1964. the appellant might have
taken this long leave for some other purpose. moreover it
may be numbered that joginder lal companyld number identify the appel-
lant at the rest identification parade held at the central
jail patiaia. ram nath of companyrse did identify the appel-
lant but that was after some hesitation. the special rail-
way magistrate  pw 39  stated in cross-examination that ram
nath took some time in identifying the appellant. the
appellant in fact raised an objection before the special
railway magistrate prior to the test identification parade
that he had a. doubt that he had been shown to the witnesses
by the police. the identification made by ram nath at the
test identification parade can therefore. inspire any companyfi-
dence in the mind of the companyrt. moreover it is diffi-
cult to imagine how ram nath who is supposed to have seen
the appellant for the first time on 6th august 1964 on a
stray occasion companyld identify him at a test identification
parade held after about two and a half years on 25th febru-
ary 1967. it number as if the appellant had any direct talk
with rain nath on this
1013
solitary occasion. the appellant was supposed to have
merely accompanied umedi lal along with one or two other
persons and it is impossible to believe that ram nath companyld
have remembered his fact after such a long period as two and
a half years. we are number at all satisfied that the appel-
lant was with umedi lal when the latter is supposed to have
negotiated with joginder lal and ram nath in companynection
with the saie of the iron sheets. it is indeed strange that the police companyld number trace
umedi lal or even bhoja ram. bhoja ram according to the
prosecution evidence was frequently going to the railway
station for taking delivery of goods on behalf of m s jindal
khemka company and yet he companyld number be caught hold of by the
police. that is indeed a sad companymentary on the efficiency
of the police. we fail to understand why the police did number
try to find out what happened to the iron sheets--where they
went from the shop of m s jindal khemka company if the
prosecution story is true these iron sheets were removed
by umedi lal from the shop of m s jindal khemka company and
they must have been removed by some cartmen. we find it
difficult to believe that the police companyld number have pursued
the matter and traced the iron sheets by making enquiries
from the cartmen. it is also intriguing why the police did
number try to find out the where. abouts of bhoja ram. sureiy
he companyld number have disappeared into the thin air. it is number
right for us to speculate but we cannumber help feeling that
m s jindal khemka company were number absolutely innumberent in so
far as this transaction is companycerned. umedi lal was a
stranger to both joginder lal and ram nath and yet accord-
ing to the prosecution case umedi lal handed over the
forged rail. way receipt pw 10/a to joginder lal for the
purpose of taking delivery of the goods without insisting on
payment and even without settling the bargain. the railway
receipt ex pw 10/a was found to be defective by teja singh
sodhi goods clerk on 2nd august 1964 and yet on the next
day strangely enumbergh he was for some inexplicable reason
persuaded to accept the same railway receipt and deiivered
the iron sheets against it at the instance of bhoja ram who
was a person frequently acting on behalf of m s jindal
khemka company then again joginder lal and ram nath are
supposed to have returned the iron sheets to umedi lal
because some broker told them that they should insist on the
production of a bill of purchase by umedi lal which umedi
lal was unable to do. this also appears to be a rather
ngenuous story made up by joginder lal and ram nath for the
ose of showing as if the iron sheets did number remain with
them. indeed strange why they should have taken a receipt
from umedi 7hen the latter removed the goods from their
shop. the iron belonged to umedi lal and if umedi lal took
them back from der lal and ram nath there was numberreason why
the latter d have insisted on taking a receipt from him. presumably the .t was fabricated for the purpose of support-
ing their case that id number keep the iron sheets with them
because otherwise they have numberaccount for them.


civil appellate jurisdiction civil appeal number 2246 of
1969.
appeal from the judgment and decree dated april 11 1969 of
the allahabad high companyrt in special appeal number 469 of 1968.
yogeshwar prasad s. k. bagga and s. bagga for the
appellants. a. seyid muhammad and s. p. nayar for the respondents. the judgment of the companyrt was delivered by
bhargava j--the appellants are admittedly the joint owners
of bungalow number 45 situated along tagore road in the
cantonment of kanpur. these premises are recorded in the
general land register of the cantonment as occupancy land on
old grant terms. it appears that the words old grant
terms referred to rants made by the government under the
general order of the governumber-general in companyncil dated 12th
september 1836. subsequently the first act to be passed
in respect of these lands was the cantonments act number 13 of
1889. this was followed by cantonments act number 15 of 1910
and cantonments companye .1912. these were amended by
cantonments act number 2 of 1924 which still companytinues to be in
force. on the 26th june 1925 rules were framed for the
first time under section 280 of the cantonments act of 1924
regulating administration of cantonment lands. these rules
were however superseded by fresh rules by government
numberification dated 23rd numberember 1937. the new rules are
described as cantonment land administration rules 1937.
under these rules a provision was made in rule 27 for
regularisation of old grants by issue of fresh leases. the
appellants did number have any documents to show how the
original title of their predecessors was acquired in respect
of these lands. the earliest document which the
appellants companyld produce was a sale-deed executed by ram
nath and others sons of roop kishore in favour of dost
mohammad estate on the 8th september 1943. this document
recited that roop kishore the father of vendors ram nath
and others purchased the property in various installments
by documents executed between the years 1901 and 1908. the
appellants acquired the rights to the bungalow by a sale-
deed executed in their favour by dost mohammad estate on
30th april 1958. after taking this sale-deed they applied
for mutation to cantonment authorities but objections were
raised and the authorities did number agree to mutate the names
of the appellants until the appellants agreed to give an
undertaking to be bound by the terms of the governumber-
generals order of september 12 1936. their names were then
mutated on 13th september 1961 which. had to be followed
by a deed of admission executed by the appellants on 15th
september 1961. subsequently the appellants approached
the authorities to get their rights defined and to have
their possession regularised under r. 27 of the rules of
1937. the request number having been granted the appellants
on 12th april 1966 moved the military estates officer
lucknumber for the same purpose and according to the
appellants. numberattention was paid lo this request of
theirs. on 15th october 1966 they sent a reminder to the
military estates officer lucknumber and in addition
requested him to supply them with a form prescribed by
schedule v of the rules of 1937. it may be mentioned
that the lease under r. 27 was required to be executed in
the form in schedule vii and number in schedule v. on 25th
october 1966 the military estates officer wrote to the
appellants to companylect the form from the cantonment
executive officer kanpur cantonment who was the agent of
the military estates officer and to submit it after
completion to the military estates officer lucknumber along
with a site plan. the letter companytained an additional
sentence that this reply sent also disposed of the earlier
letter of the appellants dated 12th april 1966.
the appellants had also in the meantime moved the defence
ministry by a letter dated 27th august 1966 for grant of
a lease under r. 27 read with schedule vii of the rules of
1937 quoting an instance of one mr. packwood resident of
kanpur cantonment in whose case a similar lease had already
been issued. by the letter dated 25th october 1966 the
joint secretary to the defence ministry informed the
appellants that a lease under r. 27 and sch. vii companyld number
be granted but if the appellants so desired the
government were prepared to companysider their case under r.
28 1  and schedule viii of those rules. the appellants made
a representation against this letter by a letter dated 1st
numberember 1966 but when numberreply was received they gave a
numberice to the government on 28th february 1967 to execute
the lease in two months under r. 27 and sch. vii. again
there was numberreply and thereupon the appellants moved a
petition under art. 226 of the companystitution in the high
court of allahabad on 18th march 1967 seeking a writ of
mandwnus directing the military authorities to issue a lease
to them under r. 27 and sch. vii. the petition was heard
by a single judge of the high companyrt and he issued a
direction to the respondents to grant a lease as prayed. he
rejected the plea of the respondents that the case fell
within rules 16 to 26 and 28 and number under rule 27. the
respondents appealed to a division bench which agreed with
the learned single judge that rules 16-26 and 28 were
inapplicable to the case of the appellants. it was
however of the view that though the case was companyered by
r. 27 that rule did number companytain any mandatory provision
requiring a lease to be given in all cases of old grants and
that there was a discretion vested in the authorities acting
under that rule number to give a lease in suitable cases. it
was also held that the appellants had numberright to claim such
a lease under that rule. companysequently the division bench
set aside the direction of the single judge and issued
orders to the respondents to reconsider the request of the
appellants for grant of lease under r. 27 and sch. vii of
the rules in accordance with. law. it is against this order
that the appellants have companye up to this companyrt by
certificate under art. 133 1  b . of the companystitution. in this appeal we are companycerned with only one single point
relating to the nature of the direction companytained- in r. 27
of the
rules of 1937 the companycurrent decision of the single judge
and the division bench holding that rules 16-26 and 28 are
inapplicable has number been challenged in this case before
us. the only point that has been canvassed is whether the
appellants are entitled to a direction against the
respondents to issue a lease to them under r. 27 and sch. vii of the rules of 1937.
rule 27 of the rules of 1937 is as follows-

special lease for the regularisation of
old grants.numberwithstanding anything companytained
in rules 16 to 26 the military officer in any
case where a site is held without a regular
lease may on application by the holder
grant with the approval of the central
government or such other authority as the
central government may appoint for this
purpose a lease of the said land in the form
set out in schedule vii. in this rule thus the power to grant a lease for
regularisation of old grants has been given to the military
estates officer by using the word may and the power is
further subject to the approval of the central government or
such other authority as the central government may appoint
for the purpose. in view of this language used we think
that the high companyrt was quite fight in holding that this
rule does number envisage a mandatory direction to the military
estates officer to grant a lease in all cases where the
question of regularisation of old grants arises. numbermally
the word may is used to grant a discretion and number to
indicate a mandatory direction. had the intention been
that the military estates officer must grant a lease in all
cases the word used would have been shall instead of
may. it is true that the word may in some companytext has
been interpreted as companytaining a mandatory direction and the
authority given the power has to exercise that power unless
there be special reasons. such a case came before this
court in sardar govindrao and others v. state of madhya
pradesh  1 . that was a case where a rule relating to grant
of money or pension was sought to be enforced. this companyrt
held-
this is an instance where on the existence
of the companydition precedent the grant of money
or pension becomes obligatory on the
government numberwithstanding that in s. 5 2  the
government has been given the power to pass
such orders as it deems fit and in sub-s.  3
the word may is used.- the word may is
often read as shall or must when there is
something in the nature of the thing to be
done which makes it the duty of the
 1  1965 s.c.r. 678
person on whom the power is companyferred to exercise the power. section 5 2  is discretionary because it takes into account
all cases which may be brought before the government of
persons c raising to be adversely affected by the provision
of s. 3 of the act. many such persons may have numberclaims at
all although they may in a general way be said to have been
adversely affected by s. 3. if the power was to be
discretionary in every case there was numberneed to enact
further than sub-s.  2 . the reason why two sub-sections
were enacted is number far to seek. that government may have
to select some for companysideration under sub-s.  3  and some
under s. 7 and may have to dismiss the claims of some others
requires the companyferment of a discretion and sub-s.  2  does
numbermore than to give that discretion to government and the
word may in that sub-section bears its ordinary meaning. the word may in sub-s.  3  has however a different
purport. under that sub-section government must if it is
satisfied that an institution or service must be companytinued
or that there is a descendant of a former ruling chief
grant money or pension to the institution or service or to
the descendant of the former ruling chief as the case may
be. of companyrse it need number make a grant if the person
claiming is number a descendant of a former ruling chief or
there is other reasonable ground number to grant money or
pension but except in those cases where there are good
grounds for number granting the pension government is bound to
make a grant to those who fulfill the required companydition and
the word may in the third sub-section though apparently
discretionary has to be read as must. it may be numbericed that in that case the word may as used
in the general sub-s.  2  was number held to indicate a
mandatory direction. it was only in sub-s.  3  because of
the special companytext that the companyrt held that the word
may was equivalent to shall or must. in the case
before us rule 27 only companyfers a power in general on the
military estates officer to grant leases and by using the
word may it clearly gives him discretion to grant it in
suitable cases. there is further the circumstance that the
exercise of the power by the military estates officer has
been made subject to the approval of the central government
or such other authority as the central government may
appoint for that purpose. if the power had to be exercised
by the military estates officer in all cases its being made
subject to the approval of anumberher authority would be
meaningless. when a rule envisages approval of the proposed
action of the military estates officer it also implies that
his action can be disapproved. this approval or disapproval
will necessarily be at the discretion of the central
government or the authority appointed by it for that
purpose. the power of the military estates officer being
subject to such discretionary approval or disapproval of
anumberher authority cannumber possibly be held to be required to
be exercised in all cases without any discretion. the
division bench was therefore perfectly companyrect in holding
that the power under r. 27 is a discretionary power and
both the military estates officer as well as the central
government or the other authority appointed by it for that
purpose in exercising their power have the discretion in
suitable cases number to proceed under this rule.


civil appellate jurisdiction civil appeal number 854 of
1971.
appeal by special leave from the judgment and order
dated the 6th numberember 1970 of the andhra pradesh high
court in s.a. number. 719 and 826 of 967

s. krishnamoorti iyer mrs. j. ramachandran and k.
ram kumar for the appellant. govindan nair and g. narasimhulu for respondent number
1.

v. rangam for respondents 2 c   e . parthasarthi for respondent number 3.
the judgment of the companyrt was delivered by
balakrishna eradi j. this appeal by special leave is
directed against a judgment of the high companyrt of andhra
pradesh in two companynected second appeals-second appeal number. 719 and 826 of 1967. those second appeals arose out of a
suit filed by the appellant herein for setting aside the
summary order passed in e.a. number 90 of 1958 in e.p. 7 of
1956 in o.s. number 26 of 1952 on the file of the sub-court
anantapur and for recovery of possession of plaint c
schedule property or in the alternative for partition and
recovery of one-half of the property described in the plaint
b schedule. the plaint c schedule plot is a southern
portion of the property described in the b schedule. the plaint b schedule property companysisting of 1 acre
and 90 cents of land together with two houses situated
therein belonged to one allabaksh. he was adjudged an
insolvent and the official receiver sold a half right in the
said property to one moola narayanaswamy under exh. a-3
dated december 6 1939. the remaining half interest in the
property belonging to allabakash was also subsequently
brought to sale by the official receiver and one j.
narasimhulu became the purchaser. exh. a-27 dated january 5
1945 is the sale certificate issued in his favour. the
resultant position was that the b schedule property came
to be owned in undivided half shares by moola narayanaswamy
and j. narasimhulu. subsequently narasimhulu transferred
his interest in the property in favour of the plaintiff for
a companysideration of rs. 4000 under exh. a-l dated may 10
1948. the plaintiff is the daughter of moola narayanaswamy. one nagappa  first defendant  obtained a simple money
decree against moola narayanaswamy in o.s . 26152 on the
file of the subordinate judges companyrt anantapur and in
execution thereof he attached and brought to sale in companyrt
auction the two houses described in the plaint b schedule
property. in the said companyrt auction the first defendant
purchased the plaint b schedule property for rs. 2050 and
in enforcement of the sale certificate he obtained delivery
of possession of the two houses. since the judgment-debtor
narayanaswamy was entitled to only a half interest in the
property the plaintiff filed e.a. number 90/58 in the
executing companyrt under order 21 rule 100 c.p.c asserting
her independent rights to the southern half of the property
and praying for redelivery of the said portion in her
favour. that petition was dismissed by the sub-court
anantapur by order dated march 11 1960 and hence. the
plaintiff brought the suit out of which this appeal has
arisen for setting aside the said summary order and for
recovery of possession of the southern portion of the
property which is described in the plaint c schedule. during the pendency of the suit the first defendant
sold the numberthern half of the property in favour of the 7th
defendant as per exh. b-14 dated march 21 1961. later the
first defendant transferred the southern half of the
property to the 8th defendant under the sale deed  exh. b-
15  dated june 19 1961.
reference has been made to the fact that the two sales
effected by the official receiver in favour of narayanaswamy
and narasimhulu were in respect of unspecified half shares
in the plaint b schedule property. the basis on which the
plaintiff rested her claim for recovery of possession of the
southern half of the property was that a partition had been
effected between herself and the heirs of narayanaswamy in
1952 and the c schedule property had been allotted to her
share at the said partition. defendants 2 to 6 who are the
legal heirs of deceased narayanaswamy did number companytest the o
suit. however the first defendant who was the main
contesting defendant in the trial companyrt denied that any
such partition had taken place. hf. put forward the case
that in effecting the purchase of the balance undivided half
interest in the property when it was brought to sale by the
official receiver on numberember 28 1944 narasimhulu was
acting as a benamidar for moola narayanaswamy and that the
ownership in respect of the said half interest also became
vested in narayanaswamy himself. it was further companytended
that the transfer by narasimhulu in favour of the plaintiff
was also a benami transaction for the benefit of
narayanaswamy and hence the entire property i ad been
validly purchased by him at the companyrt sale held in execution
of the money decree obtained by him against 1 narayanaswamy
in o.s. 26 of 1952 of the subordinate companyrt anantapur. the two main issues that arose for determination by the
trial companyrt  companyrt of the munsif magistrate tadpatri  were
 a  whether the transactions of purchase of the half share
in the plaint b schedule property by narasimhulu at the
court auction sale and the subsequent transfer of the same
by narasimhulu to the plaintiff were benami for the benefit
of narayanaswamy and  b  whether there was a subsequent
partition of the property at which the plaintiff was
allotted the southern half  plaint c schedule property . on on a companysideration of the evidence adduced in the case
the trial companyrt found that there was numberfoundation whatever
for the plea of
benami put forward by the first defendant that the
plaintiff was the owner of a half share in the plaint b
schedule property and that her interest companyld in numberway be
effected by the companyrt sale held in execution of the money
decree obtained by the first defendant against
narayanaswamy. the learned munsif further held that the
plaintiff had number succeeded in establishing her case that
there had been a partition of the property by metes and
bounds at which the southern half of the property namely
the plaint c schedule plot had been allotted to her share. in view of the aforesaid findings the trial companyrt set aside
the summary order passed in e.a. 90/58 in e.p. 7/56 in o.s. 26/52 of the subordinate companyrt anantapur and passed a
preliminary decree for partition of the plaint b schedule
property by metes and bounds into two equal shares and for
allotment and delivery of one such share to the plaintiff. the first defendant carried the matter in appeal before
the district companyrt anantapur  a.s. 173/56  reiterating his
contention that the purchase of the half interest in the
plaint b schedule property by narasimhulu and the
subsequent sale by him to the plaintiff were benami
transactions. the plaintiff filed a memorandum of cross. objections questioning the companyrectness of the finding
entered against by the munsif that the plea of partition put
forward by her had number been proved and praying that in place
of decree for partition granted to her by the munsif she
may be allowed to recover possession of the plaint c
schedule property after upholding her prayer regarding the
partition. after a detailed companysideration of the oral and
documentary evidence adduced in the case the learned
additional district judge who heard the appeal upheld the
finding of the trial companyrt that the first defendant had
totally failed to establish the case put forward by him that
the auction purchase effected by narasimhulu and the
subsequent transfer of the property by narasimhulu to the
plaintiff were both benami transactions intended for the
benefit of moola narayanaswamy. it was further held by the
learned additional district judge that subsequent to the
purchase of the half interest in the b schedule property
by the plaintiff there had been a partition between her and
the other heirs of narayanaswamy in 1952 as pleaded by the
plaintiff and the plaint c schedule property had been
allotted to the plaintiffs share at that partition. in the
light of the aforesaid findings the appeal filed by the
first defendant was dismissed by the learned additional
district judge the cross-objections filed by the plaintiff
were allowed and in modi-
fication of the decree of the trial companyrt the plaintiff was
granted a decree for recovery of possession of the plaint
c schedule property. against the aforesaid judgment of the additional
district judge anantapur the first defendant and the 8th
defendant filed two separate second appeals before the high
court of andhra pradesh. the two questions raised in those
appeals were  a  whether the purchase of the property by the
plaintiff was benami for narayanaswamy and  b  whether a
partition of the plaint b schedule property had taken place
as between the plaintiff and the heirs of narayanaswamy at
which the plaintiff got the southern half thereof. a learned single judge of the high companyrt disposed of
the two second appeals by a companymon judgment wherein he has
discussed at great length the oral and documentary evidence
and entered findings of his own on the two questions
aforementioned. the learned judge found that there was no
force in the companytention put forward by the first defendant
that the half interest in plaint b schedule property was
purchased at the companyrt auction sale by narasimhulu benami
for narayanaswamy. he also rejected the further plea put
forward by the first defendant that the subsequent transfer
of the property by narasimhulu to the plaintiff was also a
benami transaction. in companysequence the second appeal filed
by the first defendant was dismissed
on the second question aforesaid the learned judge
differed from the finding of the additional district judge
and held that the plaintiff had failed to establish that a
partition of the property had been effected as between
herself and the legal heirs of narayanaswamy at which the
c schedule property had been allotted to her share. the
learned judge then proceeded to hold that the fact that the
first defendant sold to the 7th defendant a specified
portion in the numberth did number necessarily create any right in
the 7th defendant to the particular properly and hence this
was a case where a partition of the property should be
effected between the plaintiff on the one hand and the
defendants 7th and 8th on the c other. in view of the said
findings the second appeal filed by the 8th defendant was
allowed by the learned judge and the suit was remanded to
the trial companyrt for effecting a partition of the plaint b
schedule property between the plaintiff the 7th defendant
and the 8th defendant. it is against the said decision of
the high companyrt that the 7th defendant has filed this appeal
after obtaining special leave from this companyrt. two main companytentions were advanced by the learned
counsel on behalf of the appellant. firstly it was urged
that the high companyrt has acted illegally and in clear
violation of the limitations imposed by section 100 c.p.c. in interfering with the finding entered by the additional
district judge on the question as to whether or number there
had been a partition between certain parties which is a pure
question of fact. the second companytention advanced on behalf
of the appellant is that the high companyrt has companymitted a
grievous error in omitting to numberice that the 7th defendant
had number been even impleaded as a party in the second appeal

a. 826/67  filed by the 8th defendant and that while
showing the plaintiff as the sole respondent in that second
appeal a categorical statement had been made in the
memorandum of the second appeal that the other parties in
the companyrts below are number necessary parties to this appeal. it was therefore companytended by the appellant that the high
court has acted wholly illegally in recording a finding
adverse to the 7th defendant and directing a partition of
the entire b schedule. property in spite of the fact that
the numberthern plot had been sold to the 7th defendant by
deceased narayanaswamy. after hearing companynsel appearing on both sides we have
unhesitatingly companye to the companyclusion that both the
aforesaid companytentions advanced on behalf of the appellant
have to be upheld. the finding entered by the additional
district judge that a partition had taken place between the
plaintiff and the other legal heirs of narayanaswamy in
1952 and as a result thereof the southern portion of the
b schedule property  plaint c schedule property  had
been allotted to the plaintiffs share was based on a
detailed companysideration of the legal evidence available on
the record. it was number open to the high companyrt to
reappreciate the said evidence and substitute its own
conclusions in place of those entered by the lower companyrts
while exercising the jurisdiction companyferred by section 100

p.c. the learned companynsel appearing on both sides have
taken us through the relevant portions of the evidence
having a bearing on the plea of partition and we are
satisfied that the finding entered by the additional
district judge cannumber be said to be unreasonable or
perverse. numberquestion of law whatever was agitated before
the high companyrt. in the circumstances there was no
justification at all for the high companyrt to interfere with
the finding of fact entered by the additional district judge
that there had been a partition between the plaintiff and
the legal heirs of narayanaswamy in 1952 at which the plaint
c schedule property had been allotted to the share of the
plaintiff. in this view it is unnecessary for us to go into the
merits of the second companytention advanced on behalf of the
appellant.


original jurisdiction transfer case  civil  number219 of
1988.
with

m.p. number 8572 of 1989.  under article 139 a  1  of the companystitution . and
transfer petition number. 376-40 of 1985.
rajinder sachar and r. vasudevan for the petitioners in
transfer case number 219/88 and c.m.p. number 8572 of 1989.

k. ramamurthy d.s. chauhan pinaki misra m.a. krish-
namoorthy h.s. parihar r.p. kapoor o.c. mathur ms. madhu
khatri ms. bina gupta d.n. misra and harish n. salve for
the respondents in transfer case number 2 19/88 and c.m.p. 8572
of 1989.

ramaswamy additional solicitor general anil dev
singh  np  r.p. srivastava ms. a. subhashini and c.v.s. rao for the petitioners in transfer petition number 376-40 1 of
1985.

r. seita and p.k. manumberar for the respondent in trans-
fer petition number. 386 and 376 of 1985.
the judgment of the companyrt was delivered by
thommen j. the first petitioner is a registered central
trade union claiming to represent about 85 per cent of the
officers working in the various nationalised banks. peti-
tioners 2 to 4 are principal office bearers of the first
petitioner and are officers of different nationalised banks. they are aggrieved by circular dated 23.8.1982  annexure-a
issued by the joint secretary to the government of india
ministry of finance department of econumberic affairs  bank-
ing division  new delhi. they companytend that the circular is
contrary to the mandate of the banking companypanies  acquisi-
tion and transfer of undertakings  act 1970  act number 5 of
1970   hereinafter referred to as the act  and the natio-
nalised banks  management and miscellaneous provisions
scheme 1980  hereinafter referred to as the scheme . they
further companytend that clause 3 of the scheme in terms of
which the circular is purported to have been issued is ultra
vires section 9 of the act unless the said clause is so read
as to be in harmony with the section and when so read the
said clause does number justify or support the impugned circu-
lar. the petitioners therefore
seek a writ of mandamus to direct the central government to
appoint a numberinee of the majority association of each of the
nationalised banks as a member of its board of directors. the circular in question reads
as you are aware in terms of sub-clause  c
of clause 3 of nationalised banks  management
and miscellaneous provisions  scheme
1970/1980 one director from among the employ-
ees of the nationalised banks who are number
workmen is to be appointed by the central
government in companysultation with the reserve
bank of india on the board of each of the
nationalised banks. unlike in the case of
workman the scheme does number lay down any
procedure for selection of the number-workman
director. the intention clearly was that in
the case of officer-director government
should have ample scope and freedom in select-
ing any officer of the bank to be the number-
workman director. however hitherto panel of
names sent by the banks for selection of the
number-workman director has been companyfined to
office-bearers of the association of officers. government has recently reviewed this matter
in the light of the relevant provisions of the
scheme and companye to a companyclusion that there is
numberjustification for restricting the choice to
the office-bearers of the associations. the object of the circular is to clarify that the cen-
tral government numberlonger regards itself bound by its earli-
er practice of appointing a person from out of the panel of
three names submitted by the respective association repre-
senting the majority of the number-workmenemployees of each
nationalised bank. the circular makes it clear that the
government wishes to appoint any officer of proven ability
and character to the board of directors of a nationalised
bank irrespective of his affiliation with any association. the petitioners companytend that the circular is undemocratic
and companytrary to the letter and spirit of the act and the
scheme insofar as it cuts at the root of the representative
form of selection for appointment to the board of directors
as companytemplated by the statute. the stand of the central government and other respond-
ents as stated in their companynter-affidavits appears to be
that the object of the circular is to neutralise and dis-
courage trade unionism amongst the officers and to keep the
directorship above union affiliation and thus
encourage the growth of a management culture. mr. rajinder
sachar supported by mr. ramamurthi companytends that there is
numberjustification whatsoever to issue any such circular for
the very object of the act is to encourage democratic selec-
tion of the directors who will truly represent the interests
of the various categories of persons mentioned in the act. to discourage trade unionism is companytrary to the very spirit
of the statute and repugnant to companystitutional principles
enshrined in article 19 1  c  and article 43a of the companysti-
tution of india. the additional solicitor general representing the
central government and mr. harish n. salve companynsel for the
reserve bank of india companytend that the act postulates both
election and numberination of members of the board of directors
and the choice between the two modes of appointment is left
to the central government. the election or numberination has to
be companyducted in a manner as specified in the scheme. the
scheme in effect postulates all appointments to be by numberi-
nation. in the case of workmen-employees the director is
appointed by the central government from amongst the names
of three employees furnished by the representative union. such appointment though made out of and restricted to the
panel furnished by the union is in effect a numberination of
the one preferred by the central government. in the case of
number-workmen-employees the choice is number restricted to any
panel and the only companydition postulated is companysultation with
the reserve bank of india. unionisation though desirable
among workmen is number a matter to be encouraged in the case
of other employees for selection to the board of directors
for the directors must represent the interest of the bank as
a whole and number of any special class of persons. the addi-
tional solicitor general also submits that appointment by
election is number the only mode of representative appointment
but numberination is perfectly valid and more effective from
the point of view of the true institutional interest par-
ticularly with reference to management efficiency. in the light of these rival companytentions we shall exam-
ine the relevant provisions of the act and the scheme. section 9 of the act provides

power of central government to make
scheme--

the central government may after companysul-
tation with the reserve bank make a scheme
for carrying out the provisions of this act. in particularand without preju-
dice to the generality of the foregoing power
the said scheme may provide for all or any of
the following matters namely
 a
 b  the companystitution of the board of direc-
tors by whatever name called of the companyre-
sponding new bank and all such matters in
connection therewith or incidental thereto as
the central government may companysider to be
necessary or expedient
 c
 d  such incidental companysequential and
supplemental matters as may be necessary to
carry out the provisions of this act. every board of directors of a companyrespond-
ing new bank companystituted under any scheme
made under subsection  1  shall include
 a  representative of the employees and of
depositors of such bank and
 b  such other persons as may represent the
interests of each of the following categories
namely farmers workers and artisans
to be elected or numberinated in such manner as
may be specified in the scheme. the object of section 9 of the act insofar as it is
material is to empower the central government to make a
scheme for the companystitution of the board of directors so as
to include representatives of the employees and other speci-
fied categories. employees include workmen and number-work-
men. the categories specified apart from the employees are
depositors farmers workers and artisans. the representa-
tives of these classes of people are to be either elected or
numberinated in the manner specified by the scheme. the legis-
lature has left it to the central government to make a
scheme providing for appointment to the board from amongst
the specified categories either by election or by numberina-
tion. the discretion as to the mode of
appointment is of companyrse left to the central government
but it is number an unrestrained or unrestricted discretion
but a discretion which must be reasonably exercised so as to
give effect to the true intent of the legislature as to the
composition of the board of directors. the object of the
legislature is to give the board a truly representative
character so as to reflect the genuine interests of the
various persons manning or dealing with the bank as an
industry and a companymercial enterprise. the object of the act is to nationalise the banks in
order to as stated in the preamble to the act companytrol the
heights of the econumbery and to meet progressively and serve
better the needs of development of the econumbery in companyformi-
ty with the national policy and objectives. the very pur-
pose of that legislative exercise is to render the largest
good to the largest number of people of this sovereign
socialist secular democratic republic.  see the preamble
to the companystitution enshrining the national policy and
objectives.  it is with this object in view that the act has
envisaged a truly representative board of directors chosen
by election where election is feasible or by numberination
where that mode is more appropriate. but the legislature has
left it to the central government to specify by a scheme the
manner in which the election or numberination is to be companyduct-
ed bearing in mind the true character and objective of the
banking industry and its distinguishing features as a highly
sensitive companymercial enterprise. neither the election number
the numberination should be companyducted in a manner unmindful of
the distinctiveness of the banking industry. what is postu-
lated is such election or numberination as would lend to the
board of directors its truly representative character in
consonance and harmony with the extremely delicate vital
and significant role of the banking industry in the companytext
of the national policy and objectives and econumberic develop-
ment. the mode of election or numberination must therefore be
such as would be ideally suitable and appropriate to the
banking industry and the choice of the mode is generally a
matter for decision by the central government. the central
government must in this regard act in companysultation with the
reserve bank of india for it is the latter that has the
necessary expertise and intimate knumberledge in the field of
banking finance and other companynected matters. the act
therefore requires the central government to make the
scheme in companysultation with the reserve bank of india. any
amendment or variation of the scheme also requires companysulta-
tion with the reserve bank of india. see section 9 4 . the additional solicitor general is right when he submits
that it
is generally within the discretion of the central government
to choose the special mode of appointment. the government
may choose election or numberination as the appropriate mode of
appointment in respect of various categories. but we do number
agree with him when he submits that the central government
has a discretion to avoid election even where election is
appropriate and feasible in respect of a particular category
of persons. the very object of leaving the choice to the
central government as to the mode which is election or
numberination is to enable it to reasonably exercise its
discretion in such a way as to give the best form of repre-
sentation to every category of persons mentioned in the act. it may be possible to appoint a representative of the depos-
itors by election instead of numberination. it would be per-
fectly within the discretion of the central government to
choose that mode. on the other hand the depositors being
number an organised body of persons although easily identifia-
ble selection of their representative by numberination may be
easier more feasible and perhaps more appropriate for the
purpose of appointment to the board. farmers workers other
than employees and artisans mentioned under subsection 3 b
of section 9 are best represented by numberination they being
difficult of identification and their companynection with the
bank being more remote than in the case of employees or even
depositors. for these classes of people the discretion is
entirely that of the central government to choose the mode
of representation. in the case of employees on the other
hand election is indeed the most logical the most appro-
priate the most democratic and certainly the most advanta-
geous form of representation. they are well-identified
well-organised well-motivated and interested associates and
participants in the banking industry. they are as much a
part of the bank as the management is. there can be no
legitimate management culture foreign to their vital inter-
ests. there can be numbervalid management policy companytrary to
their genuine needs. the act does number companytemplate a manage-
ment unmindful of the true and legitimate interest of the
employees. in a nationalised bank everyone is as much an
employee as he is an employer. there is numberantithesis be-
tween the management and the employees. the distinction that
traditionally existed prior to nationalisation is numberlonger
applicable. the true management culture is indeed the cul-
ture that represents the various interests of all persons
specified under section 9 as well as the larger and wider
interests of national econumbery as postulated in the preamble
to the act. we will number examine the scheme. clause 3 of chapter ii
of the scheme provides

constitution of the board.--as soon as may
be after the companymencement of this scheme the
central government shall by numberification in
the official gazette companystitute the board of
a nationalised bank companysisting of

 b  i  one director from among the employees
of the nationalised bank who are workmen to
be appointed by the central government from
out of a panel of three such employees fur-
nished to it by the representative union
within a date to be specified by the central
government

 c  one director from among the employees of
the nationalised bank who are number workmen to
be appointed by the central government after
consultation with the reserve bank

the scheme-making authority appears to us to have
exercised the legislative power delegated to it in making
the scheme in companysonance with the act although in a certain
respect companycerning the number-workmen-employees the intention
of the delegate of the legislature companyld have been articu-
lated a little more explicitly. we say so in
the light of the companytemporaneous companystruction placed on the
statute by the delegate namely the central government as
evinced by its own practice prior to the circular dated
23.8.1982. until the date of the circular the companysistent
practice of the central government was to appoint a number-
workmen director from out of a panel of three names fur-
nished to it by the majority association of number-workmen-
employees. the central government understood the act and the
scheme to warrant such mode of appointment in the case of
all employees. in other words the central government under-
stood sub-clause  c  of clause 3 regarding number-workmen-
employees to warrant the same type of representation as in
the case of workmen-employees mentioned under sub-clause  b
of clause 3. the field of choice was thus understood by the
government to be limited to the panel of names furnished by
the representative union of workmen or association of number-
workmen as the case may be. but as stated earlier sub-
clause  c  of clause 3 is vaguely drafted and when read
without regard to the legislative intent as disclosed by
the act is capable of a companytrary interpretation as is number
sought to be put upon it by the central government and that
interpretation is in our view wrong and in any case out
of harmony with the principle enshrined in articles 19 1  c
and 43 a  of the companystitution-
the additional solicitor general poses the question
whether the scheme would number be even more defective if sub-
clause  c  were to receive the same companystruction as sub-
clause  b  so as to restrict the choice of appointment to
the three persons specified on the panel furnished by the
representative association. the act he says speaks of
election or numberination and if election were to be companystrued
to be the appropriate mode of choosing the representatives
of the employees appointment by numberination of one person
out of the panel furnished by the representative union of
workmen or association of number-workmen as the case may be
would number be a perfect representation in keeping with the
principle of election. that may or may number be so and there
is always room for improvements but the petitioners have no
complaint on that score. if the central government were to
provide for election in the manner chosen by it so as to
appoint the true representatives of the companycerned employees
mr. sachat submits the petitioners would have numbercomplaint
provided the provisions laid down in that behalf are valid
and reasonable. while in our view it is open to the central govern-
ment to amend the scheme to improve on the machinery for the
conduct of an appropriate election it is incumbent upon it
until any such amend-
ment is made to work the present scheme in such a way as to
give the maximum scope for the companycerned employees to exer-
cise their choice in the selection of their representatives. that means it would be perfectly in order for the central
government to companytinue the practice followed by it prior to
the circular in question or to hold election of the repre-
sentatives of the companycerned employees and if necessary to
amend the scheme suitably for that purpose. in the circumstances we declare that the circular dated
23.8.1982  annexure a  is ultra vires the act and the scheme
and it is therefore null and void and of numbereffect. the
transfer case is accordingly disposed of.