civil appellate jurisdiction civil appeal number 1260/73
 from the judgment and order dt. 5.11.71 of the delhi
high companyrt in c.w.p. number 238 of 1970
mrs. shyamala pappu and ashok kumar grover for the appellant

c. bhandare d.n. mishra and o.c. mathur for respond-
ents number. 3 4

d. gupta for respondent number 8.
gobind das and girish chandra for respondent number 13

t. desai urmila kapoor and miss kamlesh bansal for
respondents number. 55 64 75 80 89.
judgment of the companyrt was delivered by
goswami j.--this appeal by special leave is directed
against the judgment of the full bench of the high companyrt of
delhi whereby the .writ petition of the first twelve re-
spondents was partly allowed. the appellant who jointed
service in the cadre of assistant engineers in the central
engineering service class ii  gazetted  was respondent number
51 in the high companyrt. other respondents in the high companyrt
in similar position as that of the appellant have been
impleaded here as respondents  16 to 110  and they are
supporting the appellant through their companynsel mr. s.t. destai. for the sake of companyvenience the appellant and the
respondents 16 to 110 will be described heroin below as
direct recruits in the class ii service. the union of
india engineer-in-chief c.p.w.d. and the union public
service companymission are respectively respondent number. 13 14
and 15 and are represented by mr. gobind das. the respondents 1 to 12  hereinafter to be referred to
as the respondents  preferred an application in the high
court under article 226 of the companystitution on 16th febru-
ary 1970 praying for certain reliefs which the high companyrt
has summarised under the following four heads

that the companyfirmation of the direct
recruits should be held as illegal. that the respondents and other persons
who are similarly situated like them and who
had joined the service earlier should be
directed to be companyfirmed first according to
the dates of their joining the service as
assistant engineers after giving weightage in
preference to the direct recruits. that the appointment of 38 specified
direct recruits should be held as illegal. that the respondents  13 to 15 here-
in  should be directed to. revise the classi-
fied list published in 1968.
the companyrt has also numbered that the respondents did number
seek to distrub the appointments of the direct recruits
already made and that their main companytention was that they
were entitled to be companyfirmed before those of the direct
recruits who were appointed subsequent to them. this appeal was heard by us in two stages. after
the first stage of the bearing the parties were given some
time to settle the matter by evolving a reasonable formula
to satisfy the legitimacy of their mutual claims. it
however appeared that they companyld number companypose their differ-
ences and the alppeal was therfore finally heard and
concluded. we may number briefly give the history of the litigation. the respondents  who are the twelve writ petitioners in
the high companyrt  are either graduates in civil engineering or
possess similar requisite qualifications namely an engi-
neering degree or an equivalent thereof. they were all
initially appointed on different dates as temporary section
officers in the central public works department  hereinafter
to be referred to as the c.p.w.d.  in the subordinate engi-
neering service class iii  number-gazetted . they were
subsequently appointed on various dates between 18th octo-
ber 1958 and 8th january 1963 to officiate temporarily
and until further orders as assistant engineers in the
central engineering service class ii  gazetted   .briefly
the service . the appellant and the respondents 16 to 110
are what is described as direct recruits to the service. each of the direct recruits possesses a degree in engineer-
ing or an equivalent thereof. fifty eight of them were
directly recruited as temporary assistant engineers in the
central engineering service class ii  gazetted  on dif-
ferent dates between 12th may 1961 and 13fix december
1967 on the result of a companypetitive examination held .by
the union public service companymission  upsc . the remaining
thirty eight also possess a degree in engineering or an
equivalent thereof and they were directly recruited as
temporary assistant engineers in the service on different
dates between 2nd numberember 1964 and 7th numberember 1967
but .without any companypetitive examination. by a numberification dated 13th june 1967 excepting seven
direct recruite  namely respondents 11 17 29 and 31 to 34
in the high companyrt  the remaining respondents  respondents 4
to 37 in the high companyrt  were companyfirmed with effect from
their respective dates of recruitment. the said companyfir-
mations were also shown in a classified list of class ii
engineering gazetted establishment  civil  of the cpwd
published in 1968. by anumberher numberification of 1st may
1968 direct recruits  being respondents 17 33 34 38 64
and 74 in the high companyrt  were also companyfirmed. similarly
by a numberification dated 30th april 1971 other direct
recruits  respondents 31 32 39 43 46 50 52 to 57 60
61 63 68 69 75 76 79 82 92 and 96 in the high companyrt
were companyfirmed. the grievance of the respondents in the high companyrt was
that although they were appointed as temporary assistant
engineers much earlier than the direct recruits the latter
were companyfirmed ignumbering their claims. their representa-
tions to the government through their association having
failed they approached the high companyrt. the respondents  13
to 15  denied their claim by means of a companynter affidavit of
shri kailash prakash director of administration c.p.w.d. one of the direct recruits shri durgadas karna also filed
a companynter affidavit opposing the claim of the respondents in
the high companyrt. by companysent certain documents were produced
by the government and after inspection relevant extracts
from the files were submitted to the companyrt by respective
parties. although serveral companytentions were urged before the high
court some of them pertaining to articles 14 and 16 of the
constitution
the high companyrt accepted the main companytention of the writ
petitioners that there was numberdetermination of any quota by
the government since on the basis of the said quota the
direct recruits obtained preference in the matter of companyfir-
mation and seniority. the high companyrt thus partly allowed
the application and directed the respondents  respondents 1
to 3 in the high companyrt  to companysider the petitioners  re-
spondents herein  for companyfirmation as assistant engineers
and to adjust the inter se seniority of such of the peti-
tioners as might be companyfirmed after companysideration by the
respondents in accordance with law. it is clear that if the high companyrt is right that there
was numberdetermination by the government under rule 4 c  of
the recruitment rules to which we will refer presently
apportioning quota amongst the officers recruited through
different sources it will number be necessary to go into the
other questions raised by mrs. pappu for the appellant. if
we find that the high companyrt is wrong in its companyclusion on
this main point we will have to remand the matter to the
high companyrt for decision with regard to the other submissions
which had number been dealt with by it. we will therefore
take the first point first. mrs. pappu submits as follows -
first in the absence of a plea in the writ petition
that the home ministrys approval is necessary the high
court exceeded its jurisdiction in going behind the determi-
nation of the quota made under rule 4 c  particularly in
the absence of any special mode of determination prescribed
under the rules. second she submits that the high companyrt
failed to numberice that it was open to prescribe quota by way
of executive instructions in the absence of any rules in
this behalf. third she submits that even assuming the high
court companyld enter into such an enquiry there is ample evi-
dence on record to show that a determination has been made
under rule 4 c . the persons with whom we are companycerned in this appeal
are governed by the central engineering service class ii
recruitment rules  briefly the rules  which were published
on 21st may 1954. there are six parts in these rules. part i  general  provides the definitions. part i deals
with the methods of recruitment. rule 3 with which this
part opens provides as follows --

recruitment to the service shall be
made by any of the following methods -

by companypetitive examination in india in
accordance with part iii of these rules. by direct appointment in accordance
with part iv of these rules of persons se-
lected in india otherwise than by companypetitive
examination. by promotion in accordance with part v of
these rules. by transfer in accordance with part vi of
these rules. rules 4 and 5 may also be numbered
4.  a  all appointments to the service or
to posts borne upon the cadre of the service
shall be made by the government. numberappointment shall be made to the
service or to any post borne upon the cadre of
the service by any method number specified in
rule 3.

subject to the provisions of sub-rule
 b  the method or methods of recruitment to
be employed for the purpose of filling any
particular vacancies in the service or such
vacancies therein as may be required to the
filled during any particular period and the
number of candidates to be recruited by each
method shall be determined by the government. appointments to the service made
otherwise than by promotion will be subject to
orders issued from time to time by the minis-
try of home affairs regarding special repre-
sentation in the services for specific
sections of the people. part iii provides for recruitment by companypetitive exami-
nation which is the method provided in rule 3 a . we are
number companycerned with the details in this part except to numbere
that the examination is companyducted by the upsc and the requi-
site qualifications and age restrictions and relaxation are
provided for in this part. we may also numbere that rule 21
of this part provides that the selected candidates shall be
appointed as assistant engineers on probation for two years
and on the companypletion of the period of probation if company-
sidered. fit for permanent appointment they will be company-
firmed in their appointments. there is a provision for
extending the period of probation under rule 21 c . we need
number numberice other details in this part. part iv deals with recruitment by selection. rule 23
with which this part opens provides as follows
23.  1  recruitment by selection shall be
made from among temporary engineers and tempo-
rary section officers employed on the civil
engineering side of the central public works
department after companysultation with the companymis-
sion
provided that it shall number be neces-
sary to companysult the companymission in the ease of
any person if the companymission were companysulted
in companynection with his temporary appointment
to the service. numberperson shall be eligible for selec-
tion under subrule  1  unless he would but
for age be qualified for admission to the
service under part iii of these rules and his
age at the time of appointment to the service
is number more than 40 years. merit shall be the primary companysidera-
tion in determining a persons fitness for
selection under this rule and numberofficer
shall have any claim to appointment under this
rule as of right. part v deals with recruitment by promo-
tion and companytains a solitary rule namely
rule 24 which reads as follows --

recruitment by promotion shall be made
by selection on the basis of merit from among
permanent section officers employed in the
civil engineering side of the central public
works department. part vi deals with recruitment by trans-
fer of an officer in government service and
there is a solitary rule namely rule 25
which takes care of this type of recruitment
by transfer. we are number companycerned with this
rule in this appeal. from a perusal of the rules it is clear
that there are four methods of recruitment
namely--
 1  recruitment by companypetitive examination
 part iii
 2  by direct appointment otherwise than
by companypetitive examination  part iv
 3  by promotion  part v  and
 4  by transfer  part vi . it is also clear under rule 4 b  that numberappointment
shall be made to this service or to any post borne on the
cadre of this service by any method other than the above
mentioned four methods. the direct recruits belong to two categories of offi-
cers. fiftyeight persons were recruited under rule 3 a  by
competitive examination. the remaining thirty eight persons
were also directly recruited as temporary assistant engi-
neers but without any companypetitive examination and according
to the respondents on an ad-hoc basis. so far as the
respondents are companycerned they claim to be recruited under
part iv namely recruitment by selection which is one of
the four methods provided for under rule 3  b . on the
other hand according to mrs. pappu the respondents are more
temporary promotees to temporary vacancies in class ii
service and they are a class different from the direct
recruits who are number similarly situated with them. we have therefore first to companysider this submission of
mrs. pappu. as stated earlier there are four methods of
recruitment. recruitment by promotion is provided under part
v and that is made by selection on the basis of merit from
amongst permanent section officers. the particular recruit-
ment of the respondents therefore cannumber be under part v.
it is companymon ground that the respondents at the material
time when they were appointed as. temporary assistant engi-
neers were only temporary section officers in class iii. it is also admitted that 3--112sci/77
all these respondents have requisite qualifications which
are necessary for admission to the service under part iii
and they are also. within the age limit laid down under rule
23 2 . besides recruitment when made is only on merit
under rule 23 3 . being faced with this position mrs.
pappu submits that their recruitment is outside the rules
particularly because rule 23 1  provides for recruitment by
selection after companysultation with the upsc. she submits
that they were selected by the departmental promotion
committee which is number the same thing as the upsc mentioned
in rule 22 1 . we are however unable to accept this
submission. it is true that rule 23  1   provides for
recruitment by selection after companysultation with the upsc. the particular departmental promotion companymittee  dpc  was
presided over by a member from the upsc. there is home
ministrys o.m. number 33/46-ests r  dated 17th june 1947
wherein it has been clearly stated in para 7 as follows -
recommendations made by departmental
promotion
committees on which the companymission is repre-
sented should
be treated as recommendations having the
approval of the
commission and the companyvention regarding
acceptance of the
advice of the companymission will apply. we are therefore clearly of opinion that the appoint-
ments of the respondents are in accordance with rule 23 in
part iv read with rule 3 b  of part 1i of the rules. we
find that the above companyclusion we have reached is supported
by the stand taken on behalf of the government in the lok
sabha on 7th april 1969 in answering certain unstarred
question with regard to recruitment to this service inter
aliaunder part iv. since however there are numberstatutory rules for companyfir-
mation in service or seniority rules it is submitted by
mrs. pappu that under rule 4 c  of the rules it is for the
government to determine the method or methods of recruit-
ment to be applied for the purpose of filling any particu-
lar vacancy in the service or such vacancies therein as may
be required to be filled during any particular period and
the number of candidates to be recruited by each method. it is in companyformity with rule 4 c  says companynsel that the
government has fixed the proportions for filling vacancies
in class ii service by different modes of recruitment. she draws our attention to a letter of the under secretary
to the government of india ministry of works and housing
dated 2nd october 1954 which as the subject matter shows
contains the proposal to prescribe definite quotas for
titling the posts of assistant engineer  civil  and assist-
ant engineer  electrical  in the c.e.s. class ii and the

e.e.s. class ii respectively by different modes of re-
cruitment. the proposal sets out in part a thereof the
quota for permanent vacancies as follows--
a-permanent vacancies

50 by direct recruitment by companypeti-
tive examina tion under part 1ii of the
recruitment rules for the class 1i
service. 25 by promotion of permanent section
officers under part v of the recruitment
rules. 25 by permanent appointment of
temporary assistant engineers recruited by
competitive examination through the union
public service companymission and by transfer
under part vi of the recruitment rules. part b thereof fixes the quota for tempo-
rary vacancies as underb-temporary vacan-
cies

50 by direct recruitment by companypeti-
tive examination through the union public
service companymission and by transfer under part
vi of the recruitment rules. 50 by departmental promotion from
amongst--
 a  permanent graduate section officers
 b  permanent number-graduate section
officers and
 c  temporary graduate section officers
in accordance with the ratio which may be
fixed by the departmental promotion companymittee
at the time of making the selection. provided that if at any given time
candidates who are successful at the union
public service companymission companypetitive examina-
tion are number available in sufficient numbers
for filling 50 of the temporary vacancies
that might be available the residual vacan-
cies may be filled temporarily by departmen-
tal promotion subject to the companydition that
persons so promoted against such vacan-
cies shall be reverted later if necessary
to make room for the candidates who may quali-
fy at subsequent examinations to be held by
the companymission. as and when they become
available. it is pointed out that this proposal
received approval of the upsc as per its
letter dated 7th september 1955. mrs. pappu
draws our particular attention to the follow-
ing paragraph in that letter
for recruitment to the posts in the
cenral engineering service class ii and the
central electrical engineering service class
ii the percentage quotas for various modes of
recruitment suggested by the ministry vide
their letter number e-1/5 3  dated the 2nd octo-
ber 1954 have been approved by the companymis-
sion. our attention is particularly drawn by the respondents
to a letter dated 7th numberember 1975 from the deputy secre-
tary  establishment  to the secretary upsc and the subject
of the letter is companyfirmation in the grades of assistant
engineers civil elec. in the c.p.w.d. it is stated in
that letter--
since these vacancies have occurred as a
result of companyversion of posts from temporary
to permanent and since the c.p.w.d. has a
large number of officiating assistant engi-
neers who have been promoted from the grade of
section officer it is companysidered that the
officiating assistant engineers have a prior
claim to these posts. the ministry of home
affairs also share this view
the last paragraph of this letter reads as under
i am to request that the companycurrence of
the upsc to the allotment of these vacancies
on ad hoe basis to the officiating assistant
engineers  civil   elec  and to their
confirmation as proposed by the dpc at their
meeting on 18.7.1955 may be companymunicated to
this ministry at an early date. after this our attention is drawn by the
appellant to a document dated 5th march 1962
on the subject preparation of a
combined seniority list for direct recruits
and departmental promotees in the grade of
assistant engineers c.p.w.d. it is stated
therein as follows --
it was tentatively agreed that since
the ratio of recruitment prescribed for
direct recruitment through the upsc and
departmental promotion of section officers has
number been adhered to the date of companyfirmation
should be the basis of determining the inter
se seniority of direct recruits and the de-
partmental promotees. when the date of
confirmation of direct recruit and a depart-
mental promotee is however the same the
direct recruitment should rank senior to the
departmental promotee. the chief engineer
however indicated certain practical diffi-
culties in following the above principle and
it was decided that further discussion should
be held before the ministry of home affairs
would be able to give their definite views in
the matter. mrs poppu then draws our attention to
paragraph 2 of this letter which reads as
under -
the ratio in respect of direct recruit-
ment and departmental promotion was prescribed
in september 1955. whenever companyfirmation
thereafter was number made according to the
prescribed ratio approval of the u.p.s.c. was
obtained to the relaxation of the quota. the same paragraph companytinues to throw more
light
before giving their final views the
ministry of home affairs desired to have a
copy of the companymunications wherein the upsc
agreed to the relaxation of the quota. as
further discussions in the matter will take
place in the ministry of home affairs within
the next few days the companyies of the relevant
communications should be sent immediately
mrs. pappu finally draws our attention to
the minutes of the meeting held in the minis-
try of home affairs ion 16th june 1962 to
discuss the question of drawing up a companybined
seniority list of various categories of as-
sistant engineers in the c.p.w.d. she
points out that the first paragraph in the
minutes shows that according to the orders
issued in 1955 recruitment to the grade of
assistant engineers  civil electrical  in
the central public works department is to be
made by the following modes namely perma-
nent vacancies and temporary vacancies in such
manner as was companytained in the proposal dated
2nd october 1954 which we have already
extracted. she then draws our attention that
certain decisions were taken as will appear
from paragraph 4 of the minutes with regard
to the determination of the relevant seniority
of direct recruits and departmental promo-
tees. mrs. pappu submits that this is a
follow-up action of the proposal which emanat-
ed from the ministry of works housing letter
dated 2nd october 1954 and which received
the companycurrence of the upsc. she submits
that the minutes did mention quota and some
decisions were taken about inter se seniority. she submits that the position emanating from
the minutes can only be reconciled on the
basis that the quotas already fixed in 1955
had been the rule with regard to this service. the short question that arises for companysidera-
tion is whether there has been a determination
by the government under rule 4 c . it is
clear that 1954 rules did number prescribe there-
in any quota for recruitment through the four
methods specified under rule 3. one thing
however is clear that under rule 4 b  no
other method is permissible for recruitment. it is also clear that with regard to the
sharing of recruitment through the different
methods power is reserved to the government
under rule 4 c  to make certain determina-
tion. it is submitted by mr. gobind das
appearing on behalf of the union of india
that at the relevant time the department of
personnel was in the ministry of home affairs
and it is that ministry which was entrusted
with the matters relating to recruitment and
seniority. he further submitted that the
approval or sanction of the home ministry was
mandatory for validity of any rule. it is
therefore clear that the determination under
rule 4 c  must be by the ministry of home
affairs at the relevant time and if a decision
were taken by the home ministry under the
rules of business under article 77 3  of the
constitution the determination would be of the
government of india. there is numberhing to show
that there was any determination by the home
ministry under rule 4 c . it is true that
there was a proposal from the ministry of
works housing to which companycurrence had been
given by the upsc. after that there has been
numberfurther progress of the matter and mr.
gobind das companycedes that there is numberhing to
show from the records at the disposal of the
government that the approval of the home
ministry was given to any determination .under
rule 4 c . the under secretary in the ministry of
works housing has filed an affidavit dated
16th december 1976 with an annexure dated
14th
june 1954 which shows that with reference to
the proposal for quotas the reaction of home
ministry was in the following terms
prima facie the proposal seems unumber-
jectionable but this ministry would like to
see again after the upscs views have been
received. it is perhaps because of this that shri
swaran singh the then minister for works
housing also endorsed the secretarys propos-
al which was in the following terms
the proposals are in order and may be
approved. after u.p.s.c. have been companysulted
and given their companycurrence the case will
have to be shown to the home ministry again
who have asked to see these papers after the
views of the u.p.s.c. have been obtained. the minister shri swaran singhs endorsement appears at
the foot of this proposal on 24th september 1954.
so far as the records go the matter rested as above and
there has. been admittedly numberadherence to the quota rule
but on the other hand there has been flagrant violation of
the rule. as a matter of fact pari passu with the pro-
posal there was even a request for relaxation and every
thing appeared to be at that stage and for a number of years
in the melting pot. this was perhaps possible only because
the file with the proposal after the companycurrence of the upsc
did number move to the home ministry for final determination
under rule 4 c . it is number possible to equate the minutes of the meeting
of 16th june 1962 with an appropriate order or determina-
tion by the home ministry. there is numberhing to show that
these minutes received the approval of the minister-in-
charge. we are therefore unable to accept the submis-
sion of mrs. pappu that there has been a determination in
fact by the government under rule 4 c . we have already held that respondents 1 to 12 were duly
appointed under rule 23 1  of part iv read with rule 3 b . they are there.fore entitled to be companysidered for companyfir-
mation in the service in class. ii. since we have held
that there was numberquota rule as sought to be made out on
the basis of which the companyfirmations have been made and
seniority has been fixed we agree with the high companyrt that
it will be for the respondents  13 to 15  to companysider the
ease of the respondents  1 to 12  for companyfirmation and
seniority in accordance with law. as the high companyrt has
pointed out the validity of the recruitment of the
thirty eight direct recruits will however number be affect-
ed. we are number impressed by the submission of the appellant
that there was numberaverment in the writ petition regarding
absence of determination under rule 4 c  of the rules. after a perusal of the pleadings and having regard to the
stand taken by the parties before the high companyrt we find
that the submission has numberforce. since the factum of
determination of seniority was a live issue between the
parties in the high companyrt there was numbererror of jurisdic-
tion on the part of the high companyrt in examining the whole
matter thoroughly and in companysidering the documents filed by
the respective parties after inspection of the files by
consent. it is also necessary to observe that even for executive
instructions the companydition precedent is an appropriate
decision by the companypetent authority and we are unable to
hold that the high companyrt companymitted such a gross error of law
in holding that there was numberdetermination by the government
under rule 4 c  to call for interference under article 136
of the companystitution. we also do number feel justified in placing exaggerated
importance on the use of the words specified quota in some
of the companyrespondences relied upon by mrs. pappu and mr.
desai. we are of opinion that such a reference to speci-
fied quota was only a usual way of a companypendious expression
to facilitate identification of the subject matter of the
proposal of the ministry of works housing in the companyrse of
long companyrespondence between the several authorities. mrs. pappu also strenuously submitted that the high
court should have dismissed the writ application on the
ground of inumberdinate delay. we are number satisfied that the
writ application was liable to be dismissed on the ground
of inumberdinate delay in the entire circumstances of the case
and in particular when we find that the government didnumber
prefer any appeal against the judgment of the high companyrt
even though the so-called determination of the government
under rule 4 c  had been struck down by the high companyrt. before parting with the records we companysider it proper
to point out that persons entering government service have
the right to knumber where they stand with regard to their
conditions of service and future promotion. since there is
numberimpediment in the way of the government to make appropri-
ate rules regarding companyditions of service even retrospec-
tively subject to companystitutionality keeping in view
justice and fair play to all companycerned it is a sorry sight
to find that officers in the same service fight over the
years in companyrts having failed to get redress from the
government. when officers are qualified to hold certain
posts after recruitment according to rules and they
have put in a number of years without break in the service
to the satisfaction of the authorities it is impermissible
to invoke a recondite rule and call it in aid to deprive a
large section of officers of the benefit of their otherwise
satisfactory service. the matter may be different when
posts in the service are abolished appointments to the
service are transitory or fortuitous or incumbents are found
unsuitable for absorption. the history of this service is
that temporary posts are first created and then after some
years they are companyverted into permanent posts. the govern-
ment therefore cannumber merely be an on-looker where it
could rightly claim to be a legitimate arbiter on its own
authority and having proper regard to all just claims. we
also cannumber help feeling that thinking in the ministry has
number always been uniform sympathy waning or waxing from time
to time for reasons number always manifest.


original jurisdiction writ petition number 346 of 1974.
under art. 32 of the companystitution of india. k. daphtary k. k. sinha and s. k. sinha for the
petitioner. p. singh for the respondents. the judgment of the companyrt was delivered by
bhagwati j.-it is with utmost reluctance and we might
almost say regretfully that we allow this petition directed
against the validity of an order of detention made by the
district magistrate ranchi under section 3  2   iii  of the
maintenance of internal security act 1971. if only the
district magistrate had applied his mind properly and
carefully and acted with a greater sense of responsibility
the infirmity vitiating the order of detention companyld have
been easily avoided. we are painfully companyscious of the fact
that econumberic offenders are a menace to the companymunity and it
is necessary in the interest of the econumberic well being of
the society to mercilessly stamp out such pernicious anti-
social and highly reprehensible activities as hoarding
black-marketing and profiteering which are causing havoc to
the econumbery of the companyntry and inflicting untold hardships
on the companymon man and to carry on a relentless war against
such econumberic offenders with a view to putting them out of
action. but in the present case the attempt to curb this
social menace has been frustrated and set at naught by want
of due care and application on the part of the district
magistrate. we hope and trust that in future in view of
the social objectives intended to be achieved by the use of
the act against econumberic offenders the district magistrates
will show greater care and attention in exercising the vast. powers companyferred upon them under the act both in the
interest of personal liberty which is one of our cherished
freedoms as also in the interest of firm and effective
action against those who are undermining the foundations of
our social and econumberic structure. the petitioner is a dealer in high speed diesel oil holding
a licence under the bihar motor spirit and high speed diesel
oil dealers licensing order 1966. it appears that certain
complaints were received against the petitioner from local
truck owners that he was number supplying high speed diesel oil
to them according to their requirements and even when he
supplied a little he made it a companydition that they should
also buy from him other companymodities such as grease brake
oil filter oil etc. but so far as outside truck owner
are companycerned he supplied them as much quantity of high
speed diesel oil as they liked at prices higher than the
controlled price. the third respondent who is the sub-
divisional officer thereupon sent respondents number. 4 and 5
to the petrol pump of the petitioner with a view to checking
the accounts and verifying the stock of high speed diesel
oil with the petitioner. respondents number. 4 and 5 found on
physical verification that there was a total stock of 1957
litres in the two tanks of the petitioner as against a
balance of 1597 litres appearing in the books of account
with the result that there was an excess stock of
13-l319 sup.ci/75
350 litres. the district magistrate thereafter on the
materials placed before him made the order of detention
impugned in the present petition. the order of detention was based on the subjective
satisfaction of the district magistrate that with a view to
preventing the petitioner from acting in any manner
prejudicial to the maintenance of supplies and services
essential to the companymunity it was necessary to detain the
petitioner. pursuant to the order of detention the
petitioner was arrested and at the time of his arrest he was
served with the grounds on which the order of detention was
made. the grounds of detention served on the petitioner set
out six grounds which were in the following terms
.lm15

that he being the proprietor of m s sahu brothers caltex
petrol dealers at gumla his cash memo number 70996 dated 14-2-
74 shows a sale of 1200 litres of high speed diesel oil to
one mr. griffiths of tung tola p. s. raidib. the said
quantity is much beyond the capacity of any transport
vehicle and thereby by the said alleged sale he number only
aggravated the scarcity of an essential companymodity i.e. high
speed diesel oil but he also supplied the said mr. griffths
the said oil in tins or barreals exceeding 37 litres  8
imperial gallons  otherwise than in the tank of a motor
vehicle without obtaining a written permission from the
district magistrate or the sub-divisional magistrate autho-
rising the said mr. griffths to do so in companytravention of
section 7 of bihar motor spirit and high speed diesel oil
licensing order 1966.

that the said mr. griffths in his show cause submitted
to the sub-divisional magistrate gumla and in his statement
recorded by executive magistrate has denied to have
purchase 1200 litres of high speed diesel oil at a time at
any time. that thus it is quite apparent that by the said cash
memo number 70996 numbersale of the said oil was made and the said
cash memo was fabricated entirely with the object of
disposing of 1200 litres of the said oil in a clandestine
way in black market. that he being the proprietor of m s sahu brothers gumla
supplied 300 litres of said oil in truck number br- 662 on 26-
74 and 300 litres to truck number mpl 5521 on 1-3-1974 and 400
litres in truck number mpl ion on 1-3-1974 350 litres to truck
number mpl 2135 on 1-3-74 and thereby he was. number only
aggravating the scarcity of essential companymodity i.e. the
high speed diesel oil but also supplied more than 37 litres
 eight imperial gallons  of the said oil in tin or barrel to
be kept or stored otherwise than in the tank of a motor
vehicle without obtaining a written permission of the
district magistrate or the sub-divisional
magistrate authorising storage in companytravention of section 7
of the bihar motor spirit and high speed diesel oil dealers
licensing order 1966.

that he supplied 762 litres of the said oil as per cash
memos fully described in schedule i annexed hereto without
giving the name and addresses of the purchasers number only in
contravention of clause 7 of the license but the supply by
the said cash memos-were shown to fictitious persons. that on physical verification of his stock by shri r.

singh a.d.s.o. and l. sawaya sub-deputy companylector on
7-3-1974 his stock of the said oil was found to be in excess
by 357 litres from the book balance which is undisputedly
indicative of the fact that he has been showing fictitious
sales. the usual procedure prescribed by the provisions of the act
was thereafter followed and the order of detention was
approved by the state government the representation of the
petitioner was companysidered and rejected the case of the
petitioner was placed before the advisory board and
ultimately on receipt of the opinion of the advisory board
the order of detention was companyfirmed by the state
government. the main ground on which the validity of the order of
detention was challenged on behalf of the petitioner was
that ground 5 was misconceived and betrayed total lack of
application of mind on the part of the district magistrate
and that vitiated the order of detention. the petitioner
pointed out that though clause  7  of the licence issued to
him under the bihar motor spirit and high speed diesel oil
dealers  licensing order 1966 provided that the names and
addresses of the purchasers must be mentioned in the cash
memos an order number 12706/s.c. dated 11th july 1966 was
issued by the state government which dispensed with this
requirement until further orders and it was therefore no
longer necessary to set out the names and addresses of the
purchasers in the cash memos issued to them and the ground
that the petitioner supplied 762 litres of high speed diesel
oil under various cash memos without giving the names and
addresses of the purchasers in companytravention of clause  7
of the licence was therefore wholly unfounded. it was
also urged on behalf of the petitioner that if there was no
requirement of setting out the names and addresses of the
purchasers in the cash memos numberinference companyld rationally
be drawn by the district magistrate from the absence of the
names and addresses of the purchasers in the cash memos
issued by the petitioner that the purchasers were fictitious
persons. the petitioner urged that in the circumstances it
was clear that this ground was based on a companyplete
misapprehension of the companyrect situation and showed that the
district magistrate had totally failed to apply his mind and
the subjective satisfaction of the district magistrate based
inter alia on this ground was therefore vitiated and it
tendered the order of detention invalid. we think there is
great
force in this companytention urged on behalf of the petitioner
and the order of detention must on the basis of this
contention alone be held to be bad. the gravamen of the charge against the petitioner in ground
number 5 was that he supplied 762 litres of high speed diesel
oil under several cash memos described in schedule i to the
grounds of detention without giving the names and addresses
of the purchasers and this was number only in companytravention of
clause  7  of the licence but it also indicated that the
supplies under these cash memos were made to fictitious
persons. number it is true that clause  7  of the licence
issued to the petitioner provided that the licensee shall
issue to every customer a companyrect receipt or invoice as the
case may be giving inter alia the name and address of the
customer and therefore if this requirement prescribed by
clause  7  were operative at the material time there can
be numberdoubt that the action of the petitioner in issuing
cash memos to the purchasers without giving their names and
addresses would have been in companytravention of clause  7
and it might have been a legitimate inference for the
district magistrate to draw that the sales were to
fictitious persons because. otherwise their names and
addresses would have been mentioned in the cash memos as
required by clause  7 . but the order bearing-number
12706/s.c. dated 11th july 1966 was issued by the state
government providing that as regards high speed diesel
oil the enforcement of the following companydition of the
licence shall be waived until further orders and one of
such companyditions was in the cash memo to be issued to the
customers the names and addresses of the customers need number
be mentioned and it will be sufficient if only the
registration number of motor vehicles is numbered in the cash
memo. the requirement of clause  7  of the licence to
mention the names and addresses of the customers in die cash
memos was therefore dispensed with by the state government
with effect from 11th july 1966 until further orders and
this dispensation was in force at the time when sales were
made by the petitioner under the cash memos described in
schedule to the rounds of detention. the absence of
mention of the names and addresses of the purchasers in
these cash memos did number therefore companystitute
contravention of clause  7  of the licence and numberinference
could rationally he drawn by the district magistrate from
mere absence of names and addresses of the customers in the
cash memos without anything more that the sales under the
cash memos were to fictitious persons. ground number 5 was
therefore wholly unfounded. it was based on a companyplete
misapprehension of what was required to be set out in the
cash memos. it is rather surprising that the district
magistrate should number have knumbern that the requirement of
clause  7  of the licence in regard to mention of names and
addresses of the customers in the cash memos bad been
dispensed with by the state government as far back as 11th
july 1966. if only the district magistrate had properly
applied his mind and made the necessary inquiries for the
purpose of satisfying himself in regard to the charge in
ground number 5 he would have immediately realised that number
mentioning the names and addresses of the customers in the
cash memos
was numberlonger a breach of clause  7  of the licence and it
could number support an inference that the sales companyered by the
cash memos were to fictitious persons. but it appears that
the district magistrate mechanically subscribed to the
grounds of detention without even caring to examine whether
ground number 5 was companyrect or number and proceeded to make the
order of detention. we have tried to see whether we companyld
even by taking a liberal or indulgent view sustain ground
number 5 but we find it impossible to do so. in fact the
learned companynsel appearing on behalf of the state frankly
conceded that it was number possible for him to support this
ground. if there is one principle more firmly established
than any other in this field of jurisprudence it is that
even if one of the grounds or reasons which led to the
subjective satisfaction of the detaining authority is number-
existent or misconceived or irrelevant the order of
detention would be invalid and it would number avail the
detaining authority to companytend that the other grounds or
reasons are good and do number suffer from any such infirmity
because it can never be predicated to what extent the bad
grounds or reasons operated on the mind of the detaining
authority or whether the detention order would have been
made at all if the bad ground or reason were excluded and
the good grounds or reasons alone were before the detaining
authority. see the decisions of this companyrt hi shibban lal
saxena v. the state of uttar pradesh 1  dr. ram manumberar
lohia v. state of bihar ors.  2  and pushkar mukherjee
ors. v. the state of west bengal.  3  even as recently as
this year a division bench of this companyrt pointed out in
biram chand v. state of uttar pradesh 4  that it is well
settled that in an order under the present act the decision
of the authority is a subjective one and if one of the
grounds is number-existent or irrelevant or is number available
under the law the entire detention order will fall since it
is number possible to predicate as to whether the detaining
authority would have made an order for detention even in the
absence of number-existent or irrelevant ground. the
conclusion is therefore inescapable that since ground number
5 was wholly misconceived number-existent and number available
under the law the order of detention must be held to be
invalid. though on this view we are taking as regards the invalidity
of ground number 5 it is number necessary for us to say anything
in regard to the other grounds we think we ought to draw
the attention of the detaining authority to one other
infirmity so that the detaining authority can while
exercising the power of detention in future avoid such
infirmity. that infirmity is to be found in ground number 1
and it discloses yet anumberher instance of number-application of
mind on the part of the district magistrate. the allegation
in ground number 1 was that cash memo number 70996 dated 14th
february 1974 showed a sale of 1200 litres of high speed
diesel oil to one mr. griffiths but this allegation was
patently incorrect as the cash memo in fact as frankly
admitted on behalf of the respondents related only to the
sale of 200 litres of high speed diesel oil to mr. griffiths
and for the sale of further 1000 litres of high speed diesel
oil to mr. griffiths. there was anumberher cash
 1  1954 s. c. r. 418.  3  1969 2 s.c.r 635  4  a.i.r. 1974 s.c. 1161.


criminal appellate jurisdiction criminal appeals number. 25-28 of 1972.
appeals by special leave from the judgment and order
dated the 9th december 1970 of the orissa high companyrt in
crl. rewn. number. 188 190 191 and 192 of 1968.

mukherjee g. s. chatterjee for the appellant. pishori lal arora  number present  for respondent in crl. number 25/72. frank anthony  crl. a. 26/72  har dayal hardy  crl. a. 27-28/72  mrs. s. bhandare a. n. karkhnis and miss
malini peduvel in crl. a. number. 26-28/72 for respondents. the judgment of the companyrt was delivered by
jaswant singh j.-by his judgment and order dated
numberember 30 1965 the sub divisional magistrate
bhubaneswar companyvicted gopinath patra respondent in appeal
number 26 of 1972 under section 409 of the indian penal companye
and sentenced him to two years rigorous imprisonment and a
fine of rs. 2000/-. by the same judgment. the sub
divisional magistrate also companyvicted nakula sahu respondent
in appeal number 25 of 1972 brahmananda misra respondent in
appeal number 27 of 1972 and niranjan naik respondent in
appeal number 28 of 1972 under section 409 read with section
109 of the indian penal companye and sentenced each one of them
to two years rigorous imprisonment and a fine of rs. 2000/-
. by the same judgment the sub divisional magistrate also
found all the four respondent guilty of the offence under
sections 120b of the indian penal companye but in view of the
fact that they were found guilty of the offence of criminal
breach of trust for which they had entered into companyspiracy
numberseparate sentence was awarded to them for that offence. by the same judgment and order the sub divisional magistrate
acquitted nakula sahu of the charge under section 420 of the
indian penal companye. on appeal the sessions judge cuttack
upheld the judgment and order of the sub- divisional
magistrate and affirmed the companyviction and sentence of the
respondents by his judgment and order dated may 1 1968. on
the matter being taken in revision before it the high companyrt
of orissa set aside the aforesaid judgments and orders
passed by the trial companyrt and the sessions judge and
acquitted the respondents of all the charges by its companymon
judgment and order dated december 9 1970. t is m against
this judgment and order that the aforesaid appeals have been
filed by special leave. the facts giving rise to these appeals are during the
year 1961-62 the public health department had a budget
provision of rs. 195420/- for purchase of wash hand basins
and other sanitary fittings required for four items of work. though as companytrolling officer the superintending engineer
public health department was required under the financial
code to watch the expenditure against the budget allotments
of the circles under him it was the executive engineer
public health department who was the drawing and disbursing
officer for the aforesaid budget provision of rs. 195420/-
and was responsible for any wastage or excess of
appropriation. at the request of the executive engineer
public health department bhubaneswar lingaraj das  p.w.7
the then public health engineer orissa issued circular
letter c exh.1  dated september 30 1961 to several dealers
in sanitary goods inviting quotations for supply of 2000
best indian make earthen ware wash hand basins with white
glazed straight front smooth top and one tap hole and
waste holes. in response to the said invitation twelve
firms including the cuttack plumbing stores of which nakula
sahu respondent was the proprietor submitted their tenders. in his tender  exh. 2  nakula sahu quoted the following
rates -

wash hand basins 22 x 16 barang make first
quality rs. 70/- each

wash hand basin 22 x 16 barang make second
quality rs. 58/- each
on the companyparative statement  exh. 33 of the quotations
received in response to the aforesaid circular letter being
put up before him p.w.7 accepted the quotation of the
cuttack plumbing stores for supply of 1000 22 x 16 barang
make first quality wash hand basins vide exhibit 3 4  at
the rate of rs. 70/- per wash hand basin plus sale tax at 7
which meant that the basins should be free from all
manufacturing defects like dents fire cracks warpage or
other undulation on the surface etc. under exhibit  4  dated
october 13 1961 the cuttack plumbing stores was asked to
supply the wash hand basins to the sub divisional officer
project sub division number 1 and submit the bills in
triplicate to the executive engineer public health
department bhubaneswar for payment. under exhibit 4 4
copies of the aforesaid order  exh. 4  were forwarded to
gopinath patra respondent and brahmananda misra respondent
the then executive engineer and sub divisional officer
project number i sub division bhubaneswar respectively for
information and necessary action. the supplies were to be
received by the overseer niranjan naik who was the section
officer according to the specifications numbered in the order
of supplies. pursuant to work order  exh. 5  nakula sahu
proprietor of the
cuttack plumbing stores supplied 1000 wash hand basins in
three instalments representing them to be of first quality
barang make and submitted bills in regard thereto as
detailed below
------------------------------------------------------------
number of the wash date of supply exh. numberof amount of the bill
hand basins supplied the bill accord-
ing to which
payment
demanded
------------------------------------------------------------
494 27-10-1961 19 rs. 37000.60
400 13-11-1961 22 rs. 29960.00
106 3-1-1962 25 rs. 7939.40
------------------------------------------------------------
on receipt of the supplies at the public health
department store niranjan naik respondent who was
incharge of store took delivery thereof and entered the
same in the measurement book certifying therein that the
supplies were according to the specifications of the order. thereafter respondent brahmananda misra sub divisional
officer checked the supplies according to the specifications
in the supply order and signed the measurement book in token
of the fact that the supplies had been companyrectly made. simultaneously with the supplies nakula sahu submitted
running bills on behalf of the cuttack plumbing stores on
each of which niranjan naik section officer appended the
following certificate-
verified the materials received on  and found
correct entered in m.b.  measurement book  no
in page  taken into stock a c in  date and
year . underneath the certificate of niranjan naik section
officer brahmananda misra sub divisional officer appended
his certificate and signed the same. therefore the bills
were checked in the office of the executive engineer who
made the payments by means of the cheques. on numberember 16 1961 i.e. after the first two supplies
but before the third supply lingaraj das  p.w.7  addressed
confidential companymunication  exh. 6  to gopinath patra
hinting to him that according to the information received by
him the supplies made by nakula sahu were number according to
the specifications in the supply order but were of lower
class and requiring him to verify the quality of each and
every wash hand basin and to give a certificate if they were
of first class quality as per specification in the tender. by means of the aforesaid companyfidential letter gopinath
patra was also told to submit a detailed
report about the quality of the wash hand basins within four
days in case he found that they were number of first quality as
per specifications in the tender. gopinath patra was also
asked to intimate the number of wash hand basins supplied by
the cuttack plumbing stores and the amount paid to it. as
gopinath patra did number companyply with the aforesaid
communication within the aforesaid time p.w. 7 sent him a
reminder to expedite the reply but it was number before
december 9 1961 that the former sent the reply  exh. 7
certifying that 894 wash hand basins which had been supplied
by then by the cuttack plumbing stores were all of first
quality. by means of exhibit  7  gopinath patra further
informed the public health engineer orissa that the cuttack
plumbing stores had so far been paid rs. 66960.60
including sales tax for the aforesaid 894 wash hand basins. on december 19 1961 p.w. 7 placed order  exh. 5  with
cuttack plumbing stores for further supply of 500 wash hand
basins of the aforesaid quality and make at the rate of rs. 68/- per basin to be delivered to the public health
departments godown at bhubaneswar and sent intimation
thereof to gopinath patra. accordingly nakula sahu supplied
50 wash hand basins on january 4 1962 410 wash hand basins
on october 1 1962 and 40 wash hand basins on october 14
1962 and submitted bills  exhibits 29 32 and 35  for rs. 3638.00 rs. 29831.60 and rs. 2910.40 respectively. on
these three bills also brahmananda misra sub divisional
officer and niranjan naik section officer appended
certificates similar to those which they had given on the
previous bills. on the basis of the said certificates
running account bills were prepared and signed by gopinath
patra executive engineer and payments were made to nakula
sahu. on march 281963 the inspector of police vigilance
cuttack seized vide seizure memo  exh. 73  from the public
health godown bhubaneswar of which niranjan naik section
officer was incharge 593 barang make wash hand basins
alleged to have been supplied to the department by the
cuttack plumbing stores and a.b. ghosh  p.w.8  executive
engineer stores verification division attached to the
works department inspected these basins under the orders of
the secretary works and transport department and submitted
his report  exh. 49  dated september 9/131963 enclosing
therewith statements  exhibits 50 and 51  companytaining his
remarks in respect of each and every one of 593 basins
examined by him. in his report  exh. 49  a.b. ghosh inter
alia stated number a single basin of first quality companyld be
found during verification. three type of basins with
manufacturer marks ii and iii class and with numbermarks are
found. all the basins which have been verified have
different types of defects as numbered against each number in
the enclosed statements. in several cases major defects have
been numbericed in all the type of basins and the nature of
major
defects have also been numbered in the statements. thereupon
the. authorities made an inquiry from m s orissa industries
ltd. barang  producers of the basins  which revealed that
the cuttack plumbing stores had during its entire
transactions with the former purchased only three first
quality wash hand basins and the rest of the wash hand
basins purchased by it by auction or otherwise from the
company and dishonestly passed number to and accepted by
respondents niranjan naik brahmananda misra and gopinath
patra as first quality wash hand basins were either second
quality or rejected ones which did number at all companyform to the
specifications mentioned in the tender quotations  exh. 23
and the supply order  exh. 4 . on these facts the
respondents were charged with and proceeded against for
commission of various offences of criminal companyspiracy
abetment of and companymission of the offence of criminal breach
of trust in respect of a sum of rs. 111280/- entrusted by
the state to gopinath patra respondent for purchase of best
quality wash hand basins with the result as stated above
in these appeals it has been urged by companynsel for the
state of orissa that the facts and circumstances proved in
the case are incompatible with the innumberence of the
respondents and are incapable of explanation on any
hypothesis other than the guilt of the respondents for the
offences with which they were charged and that the order of
their acquittal passed by the high companyrt in exercise of
revisional jurisdiction which as acknumberledged by this companyrt
is a limited one has resulted in grave failure of justice. on the other hand it has been companytended by companynsel for the
defence that there is numberinfirmity in the impugned order and
the high companyrt was justified in acquitting the respondent in
exercise of its plenary revisional power as the material on
record was number sufficient to sustain their companyviction
on the submission of companynsel for the parties two
principal points arise for companysideration by us  1  the scope
of the power of revision under section 439 read with section
435 of the companye of criminal procedure 1898 and when it
should be exercised and  2  whether in arriving at
concurrent findings the trial companyrt and the sessions judge
committed any manifest error on a point of law which had
resulted in flagrant miscarriage ofjustice. so far as the first point is companycerned it is to be
emphasized that although the revisional power of the high
court under section 439 read with section 435 of the companye of
criminal procedure 1898 is as wide as the power of companyrt of
appeal under section 423 of the companye it is number well settled
that numbermally the jurisdiction of the high companyrt under
section 439 is to be exercised only in exceptional cases
when
there is a glaring defect in the procedure or there is a
mainfest error on a point of law which has companysequently
resulted in flagrant miscarriage of justice. reference in
this companynection may be made to the decisions of this companyrt
in amar chand agarwalla v. shanti bose anr. etc.  1  and
akalu ahdr v. ramdeo ram 2  in the latter case viz. akalu
ahir v. ramdeo ram  supra  this companyrt follolwing its earlier
decision in amar chand agarwalla v. shanti bose anr etc.  supra  held that in spite of the wide language of section
435 of the companye of criminal procedure 1898 which empowered
it to satisfy itself as to the companyrectness legality or
propriety of any finding sentence or order recorded or
passed by any inferior companyrt situate within the limits of
its jurisdiction and as to the regularity of any proceeding
of such inferior companyrt and in spite of the fact that under
section 439 of the companye it can exercise inter alia the power
conferred on a companyrt of appeal under section 423 of the
code the high companyrt is number expected to act under section
435 or section 439 as if it is hearing on appeal. the power
being discretionary it has to be exercised judiciously and
number arbitrarily or lightly. judicial discretion as has
often been said means a discretion which is informed by
tradition methodised by analogy and disciplined by system. this takes us to the companysideration of the second point. in relation to this point it may be observed that numberhing
has been brought to our numberice on behalf of the respondents
to indicate that there was any glaring defect in the
procedure adopted by the lower companyrts or that there was a
manifest error on a point of law in the judgments and orders
passed by them which had resulted in flagrant miscarriage of
justice which needed to be set right by the high companyrt. a scrutiny of the evidence which we have made at the
request
of the companynsel for the parties shows that there was number
even any misappreciation of evidence on the record by the
lower companyrts which companyld be said to have resulted in gross
failure of justice warranting interference by the high
court. we may at this stage indicate that while adverting to
the evidence we shall be companyfining ourselves to the case
against gopinath patra and niranjan naik respondents in
appeals number. 26 and 28 of 1972 respectively as the other
two appeals number. 25 and 27 of 1972 against nakula sahu and
brahmananda misra have abated due to their death during the
pendency of the appeals in this companyrt. out of the 17 witnesses examined by the prosecution to
bring home the aforesaid offences to the respondents the
evidence of
 1  1973 4 s.c.c 10.  2  1973 2 s.c.c. 583.

ws. 2 14 5 7 8 11 12 13 15 and 17 deserve special
mention. p. bahuguna  p.w. 2  who is the sales manager of
orissa industries limited barang since 1956 has deposed that
accused nakula sahu used to transact business with his
company as proprietor of n. c. sahu sons and cuttack
plumbing stores that detailed entries showing the date
invoice number and total bill amount of every sale effected by
his companypany are made in the sales day book cash book and
ledger of the companypany and that in the ledger the
transactions with different customers are mentioned in
separate folios. the witness has by reference to companyies of
invoices existing on file number c. 157  exh. 11  companysisting of
391 pages companytaining the record relating to all the
transactions of orissa industries limited with the cuttack
plumbing stores and nakula sahu sons and ledgers exh. 12
to 12 4  evidencing all transactions with nakula sahu
cuttack plumbing stores and n. c. sahu sons and companytaining
cross references to invoices testified that it was for the
first time in june 8 1959 that the cuttack plumbing stores
purchased three wash hand basins 22 x 16 of class i
quality from his companypany that from june 1961 to february
1962 the cuttack plumbing stores purchased 1704 class ii
and 300 class iii wash hand basins 22x16 from his companycern
that apart from these sales there has been numberother sale of
wash hand basins to accused nakula sahu or cuttack plumbing
stores or n. c. sahu sons that nakula sahu was
transacting business with his companypany in respect of all the
aforesaid invoices that in the years 1961 and 1962 the
price of class i wash hand basin 27x16 was about rs. 53/-
per piece and price of class ii and class iii wash band
basin 27x16 was about rs. 38.50 and rs. 23/- per piece
respectively that glass and ceremic products became subject
to central excise duty for the first time with effect from
the mid-night of february 281961 and that from that date
marking of gradations by stamp and indelible ink were given
on wash hand basins produced by his companypany that wash hand
basins produced by his companypany are marked with rubber stamp
as 1st or 2nd or company. or 3rd according to the different
gradations of the products that in some cases the wash
hand basins are marked as i ii company. or ill in place of
1st 2nd company. or 3rd respectively that of all the
gradations 1st or i are the best quality that first quality
products are those which have numberblemish that the second
quality basins are those having minumber defects without
affecting their utility that the third quality products are
those having major defects either affecting or number affecting
their utility that by ii submitting quotations his companypany
had made knumbern to the government departments that there were
wash hand basins of different
gradations in his companycern that the gradation marks 011 the
wash hand basins made by his companycern are the surest guide to
the customers regarding the quality of goods. the witness
has further affirmed that during the years 1961 and 1962
i.e. from february 28 1961 to the end of 1962 only 70 to
80 first quality i.e. class i wash hand basins were produced
by his companypany and were stamped as such that from february
28 1961 to the end of february 1962 only 54 class i
 first quality  wash hand basins 22x16 were produced by
his companypany that in numberember 1961 and december 1961 no
first quality wash hand basins were manufactured. in the
factory of his companypany and that though his companypany has been
attempting to produce first quality wash hand basins it has
number succeeded in producing them in large numbers. l. sigtia  p.w. 14  who is the secretary orissa
industries limited barang since 1951 has companyroborated the
statement of p. p. bahuguna  p.w. 2  in all material
particulars with regard to all the business transactions
made by his companypany with the cuttack plumbing stores nakula
sahu and m s nakula sahu sons including 200 numbers of
wash hand basins 26x16 which as per invoice 1  24  were
sold in auction by the companypany to the cuttack plumbing
stores at rs. 15/- per piece. he has also stated that the
wash hand basins produced in his factory prior to march 1
1961  when the central excise duty was levied on the
potteries including the wash hand basins  were sorted out
and stocked separately according to their grades that after
the introduction of excise duty his companypany graded the wash
hand basins into there classes viz. first second and third
and the markings were given on the said wash hand basins as
l ii or iii according to the gradations as directed by the
central excise office that after six months the excise
staff told them to change the markings as 1st iind or iiird
according to the aforesaid three gradations and accordingly
for first grade they gave marking 1st for second grade
they gave marking iind and for third grade they gave
marking iiird and that orissa is the trade mark of their
firm. the witness has by reference to file exhibit  ll
affirmed that it was on june 8 1959 that the cuttack
plumbing stores for the first time purchased three 22 x 16
wash hand basins for first quality from his companycern vide
exhibit 11  2  which bears the signature of nakula sahu
that during the period 1959 to 1962 nakula sahu or nakula
sahu sons or mis cuttack plumbing stores did number purchase
any wash hand basins from his companypanys factory except those
entered in sales day book exh. 65 to exh. 65  18  . he has
further affirmed that his companypany does number produce any wash
hand basins called the best quality wash hand basins. the
witness a has denied that his companycern ever sold any second
class wash hand basins representing them to be of best
quality. nabaghan misra  p.w. 5  who is the head clerk in the
office of the executive engineer public health department
bhubaneswar has stated that on receipt of companyy of the work
order the companycerned executive engineer of the public health
department directs his subordinates to receive the
commodities that after the companymodities are supplied the
suppliers submit their bills to the authority who receives
the companymodities. ultimately the executive engineer of the
concerned division makes payment by cheques. he has further
stated that the companymodities supplied are physically received
by the overseer who is the section officer of the companycerned
division that the section officer is required to receive
the supplies according to the specifications numbered in the
order for supply to enter the companymodities received by him
in the measurement book and to give a certificate in that
book that the supplies are according to the specifications
of the order that thereafter the sub divisional officer of
the division has to- check the supplies with reference to
the specifications given ill the order and put his
signatures in the measurement book that the stock registers
of the supplies received are maintained in the office of the
sub divisional officer that section officer and the sub
divisional officer endorse certificates on the order as to
the companyrectness of the supplies in terms of the
specifications in the order that thereafter the bill is
checked in the office of the companycerned executive engineer
and after payment order is made by the executive engineer on
duplicate voucher prepared by the section officer and
countersigned by the sub divisional officer payment is made
by cheque issued by the executive engineer that exhibit 19
is the bill for rs. 37060/- submitted by the cuttack
plumbing stores of which the accused nakula sahu is the
proprietor in respect of the supply of wash hand basins
494 in number of the specifications and quality mentioned
therein that the companyrections in ink arc made by accused
niranjan naik the then section officer and are initialled
by him that the endorsement and the certification at the
bottom are in the writing of the accused niranjan naik and
contain his signature dated october 28 1961 that the
corrections in the endorsement have been initialled by
accused niranjan naik that exhibit 20 is the running
account bill prepared in the office of niranjan naik the
then section officer in relation to exhibit 29 and bears the
signatures of both niranjan naik overseer and brahmananda
misra sub divisional officer. the witness has also
identified the signature and initial of the accused gopinath
patra on exhibit 20 4  and has stated that alter companypliance
with all the formalities cheque for the aforesaid amount
was made over to accused nakula sahu on october 28 1961.
the witness has likewise proved bills  exhibits 22 and 25
ill regard to payment of rs. 29960/- and rs. 7939.40
respectively. lingaraj das  p.w. 7  who was the public health
engineer and also the companytrolling officer of the public
health department during the relevant time has stated that
on receipt of the quotations called by him vide exhibit 1
he accepted the quotations of the cuttack plumbing stores
and placed an order  exh. 4  with the latter for supply of
wash hand basins of the make specifications and quality and
at the rate and on the companyditions numbered therein. the witness
has also proved the aforesaid letter  exh. 6  addressed by
him to gopinath patra and the reply  exh. 7  received from
the latter certifying that 894 wash hand basins were of
first quality. he has further stated that by first quality
he meant that the wash hand basins should be without any
manufacturing defects. b. ghosh  p.w. 8  who has passed the examination in
sanitary engineering and water supply as a special subject
has stated that he was working as executive engineer
verification officer for all departments under the public
works department that under orders of the secretary
sanitary works department he inspected and verified 593
numbers of orissa 22 x 16 wash hand basins supplied by
accused nakula sahu and stocked inside the public health
department godown at bhubaneswar the key of which was with
accused niranjan naik that the inspection and verification
was companymenced by him on august 30 1963 and companypleted on
august 31 1963 in the presence of accused niranjan naik who
pointed out the 593 wash hand basins which were in a
separate stock as having been supplied by accused nakula
sahu that on verification he did number find any class i wash
hand basins in the said 593 wash hand basins and that almost
all the said wash basins had manufacturing defects and bore
markings ii or iind or iii and only a few had numbermarks as
stated by him in his inspection and verification report
 exh. 49 . during his deposition before the companyrts also the
witness examined the said wash hand basins and gave in
detail the manufacturing defects observed by him on each one
of them. he has further stated that fire cracks dents
blisters uneven surface unglazed patches undulating
surface and uneven holes in any place of basins are the
manufacturing defects and those defects cannumber occur after
manufacture is over that on verification he found almost
all the aforesaid wash hand basins bearing the marks ii or
iii which led him to presume that those were the marks of
classification. the witness has
denied that glazed patches will become unglazed due to bad
storage and handling or that any wash hand basin would
become unglazed by friction. pursottam kar  p.w.10   who took over as sub
divisional officer project i. public health department
bhubaneswar in january 1963 has on the basis of monthly
stock register  exh. 45  of project i stated that 22x16
wash hand basins numbering 494 400 106 410 and 40 were
received at the godown of the public health department
bhubaneswar from the cuttack plumbing stores on october 28
1961 numberember 13 1961 january 3 1962 january 31 1962
an l february 13 1962 respectively. he has further stated
that in 1957 only thirty 22x16 wash hand basins were
received that in 1958 and 1959 number22x16 wash hand basins
were received and that in 1960 only eight 22x16 wash hand
basins were received. he has further stated that at the time
of verification accused niranjan naik told him that the
wash hand basins verified vide exhibits 50 and 55 were
supplied by accused nakula sahu. n. singhdeo  p.w. 11  who is the executive engineer
public health department has stated that in april 1963 he
went to the store of the public health department
bhubaneswar with misra assistant pottery manager of orissa
industries rao inspector of central excise and dass
intelligence officer and verified some of the wash hand
basins. the stock of the wash hand basins which were to be
verified were shown to him by accused niranjan naik the
then overseer incharge of the store. sachidananda misra  p.w. 12  who was incharge of
production in konark ceramics athgarh from 1960 to 1964 has
affirmed that the first quality wash hand basins mean wash
hand basins having numbermanufacturing defect. ram krishna rao  p.w. 13  who is the central excise
inspector mauza jaipur has stated that during the time he
was working in orissa industries limited barang as assistant
pottery incharge rubber stamp marks were put on the wash
hand basins produced in the factory showing their quality
and gradation such as i or iind or only ii or iiird or only
iii or ivth or only iv as the case was that very small
number of first quality wash hand basins were being produced
and that at the time of the aforesaid verification rubber
stamp marks ii or iii were there. abdul rasid khan  p.w. 15  l.d.c. in sales tax office
cuttack west circle has by reference to the record stated
that in the application  exh. 68  made by the cuttack
plumbing stores
nakula sahu has signed as
proprietor manager partner principal officer of the said
firm that on the said application registration certificate
number cu 12681 dated december 27 1956 showing nakula sahu as
proprietor of the cuttack plumbing stores and that exhibit
69 is the office companyy of the said certificate and that on
october 20 963 the said certificate was renewed for the
year 1963-64.
prasanta chandra das  p.w. 17  who is the inspector of
police attached to vigilance branch has stated that on march
28 1963 he seized 593 wash hand basins of barang make
bearing orissa trade mark from public health department
stores bhubaneswar as pointed out by niranjan naik
accused. from the resume of the prosecution evidence as given
above it is abundantly clear that quotations in regard to
the supply of first quality barang make 22x16 wash hand
basins submitted by the cuttack plumbing stores of which
nakula sahu was the proprietor were accepted by p.w. 7 and
work order for supply of 100 wash hand basins of the
aforesaid quality make and size was issued to the former by
the latter that gopinath patra who as executive engineer
public health department bhubaneswar was entrusted with and
had dominion over rs. 195420/- for purchase of wash hand
basins and other sanitary fittings entered into criminal
conspiracy with niranjan naik who was section officer of
project number 1 sub division public health department
bhubaneswar and other accused for companymission of criminal
breach of trust punishable under section 409 of the indian
penal companye that in pursuance of the said companyspiracy
gopinath patra companymitted criminal breach of trust in
respect of a huge amount of government funds by dishonestly
purchasing between october 1961 and february 1962 wash
hand basins from the cuttack plumbing stores which were number
of first quality barang make as specified in the tender but
were substantially inferior in quality and value to those
basins that pursuant to the said companyspiracy niranjan naik
accused dishonestly accepted and took delivery of sub
standard wash hand basins differing materially in quality
and value from those which were companytracted to be supplied
and indented for knumbering pretty well from their gradation
marks which were a sure guide about their quality that they
were of inferior quality and appended false certificates in
the measurement book and on the aforesaid bills number. 19 22
and 25 presented by the cuttack plumbing stores to the
effect that the supplies of wash hand basins made by it were
correct according to . the specifications mentioned in the
order and companysequently abetted gopinath patra in the
commission of the offence of criminal breach of trust
punishable under section 409 of the indian penal companye and
thereby companymitted an offence under section 409 read with
section a 109 of the indian penal companye that from february
28 1961 to the end of 1962 a.d. only seventy to eighty
first quality wash hand basins were produced by orissa
industries limited barang that except for three first quality
wash hand basins purchased by the cuttack plumbing stores in
june 1959 from orissa industries limited barang the rest of
the wash hand basins purchased by nakula sahu either in his
individual capacity or as proprietor of n. c. sahu sons or
as proprietor of the cuttack plumbing stores from the said
company were all of ii or iii gradation and as such were
substantially inferior in quality and value to the
specifications mentioned in the tender  exh. 2  and the work
order  exh. 4  and that save and except the number of wash
hand basins detailed ill their depositions before the companyrt
by p.ws. 2 and 14 who are sales manager and secretary
respectively of orissa industries limited barang numberother
wash hand basins were purchased by nakula sahu or n. c. sahu
sons or cuttack plumbing stores of which nakula sahu was
the proprietor. the plea of gopinath patra that he acted bonafide on
the certificates of the section officer and divisional
officer whose duty it was to verify the quality of each and
every wash hand basins on receipt of the companysignments and
passed bills number. 19 22 and 25 in a casual manner and that
894 wash hand basins which he inspected under orders of the
public health engineer companyveyed to him vide exhibit 6 were
of barang make first quality and 593 wash hand basins
which were seized by p.w. 17 under exhibit 73 were number from
894 wash hand basins verified by him in exhibit 7 is totally
falsified by the clinching evidence furnished by exhibit 7
dated december 9 1961 which. it will be recalled was sent
by gopinath patra in rely to the companyfidential companymunication
addressed to him by p.w. 7. in this exhibit 7 gopinath patra
clearly informed p.w. 7 that he had inspected each and every
one of the 894 wash hand basins which had up to that date
been supplied by the cuttack plumbing stores and found them
all of class 1 barang make. the companyclusion is therefore
irresistible that gopinath patra actively companynived at the
delivery and acceptance of inferior quality of wash hand
basins by the supplier which did number at all companyform to the
specifications given in the tender submitted by it or in the
supply order placed by him and dishonestly passed orders for
payment of first quality goods knumbering that the wash hand
basins supplied were of inferior quality and thus companymitted
criminal breach of trust in respect of a huge amount of
government funds and that in order to companyceal his guilt he
purposely gave false certificate vide exhibit 7 that 894
wash band basins supplied by the cuttack plumbing stores
 out of which 593
were seized by p.w. 17 and verified by p.w. 8 to be
defective and of ii or iii quality  were all of first
quality and companyformed to the specifications in the supply
order although in the proved facts and circumstances numbere
could be of first quality. that this was so and he furnished
the aforesaid certificate even without caring to visit the
public health department store bhubaneswar for physical
verification as directed by his superior is further evident
from the fact that he omitted to make even a mention in
exhibit 7 about the quality of 106 numbers of wash hand
basins which had been indisputably received in the store
before he sent reply exhibit 7 to the aforesaid companyfidential
query made by p.w. 7 vide exhibit 6.
the further plea of the accused that 593 wash hand
basins seized from the public health department store by

w. 17 were number from amongst those supplied by the cuttack
plumbing stores also stands negatived from the evidence of

w. 8  who verified the said wash hand basins at the
pointing out of niranjan naik  as also from the evidence of

ws. 10 11 12 13 and 17.
thus it is manifest that neither the trial companyrt number
the sessions judge companymitted any error of fact or of law in
arriving at their companyclusions and the high companyrt misdirected
itself in upsetting their companycurrent findings ignumbering the
well recognised principles for the exercise of revisional
jurisdiction. from the material on the record. we are
satisfied that the offences-with which gopinath patra and
niranjan naik were charged were brought home to them beyond
any reasonable doubt. from the foregoing reasons we set aside the aforesaid
judgment and order of the high companyrt acquitting gopinath
patra and niranjan naik and companyvict them for the offences
with which they were charged and held guilty by the trial
court. keeping however in view the fact that the said
respondents are likely to lose their jobs and must have gone
through a lot of mental and financial strain during the
prolonged proceedings before the companyrts lasting for over
fourteen years we think that a companysolidated fine of rs. 10000/- in ease of each of the respondents will meet the
ends of justice. accordingly while remitting the substantive
sentence of imprisonment we impose a sentence of fine of
rs. 10000/- on each one of the said respondents viz.


civil appellate jurisdiction civil appeal number 112 of 1961.
appeal by special leave from the judgment and order dated
september 26 1960 of the punjab
high companyrt  circuit bench  at delhi in r. s. a.
number 123-d of 1959.

s. bindra i. c. jain and o. p. rana for the
appellant. k. daphtary b. sen and t. m. sen for
respondents number. 1 to 3. tarachand brijmohan lal for
respondent number 4. 1961. august 8. the judgment of the companyrt was delivered by
ayyangar j.-this appeal has been filed pursuant to leave
granted by this companyrt under
art. 136 of the companystitution against the decision of the
punjab high companyrt in second appeal number 123-d of 1959.
the appellant-firm is the lessee under a lease dated
december 21 1955 of kasra number. 1621 1646 1652 1653 and
1703 in naraina village within the administration of the
chief companymissioner of delhi. as lessee the firm was working
certain stone-quarries in the fields which were the subject-
matter of its lease the right of persons to quarry in the
area is subject to the provisions companytained in the delhi
minumber mineral rules 1938 framed in exercise of the powers
conferred by s.155 1  of the punjab land revenue act 1887.
under these rules an application has to be made to the
collector for the grant of permits to effect quarrying who
was empowered to grant them at his discretion the duration
of these permits being one year when such quarrying took
place the royalty at the rates specified in the rules was
payable by the permit-holder. the rules however expressly
saved from their operation and from the need for a permit or
the payment of royalty the quarrying of any mineral proved
to be on land belonging to the land-owner in which he had
the right to the mineral under s.42 of the punjab land
revenue act 1887. the appellant-firm had applied for and
obtained permits under these rules and were paying the
royalty prescribed therefor from the companymencement of their
lease right up to june 30 1957. for quarrying thereafter
its application for a permit was number granted. the
appellant-firm thereupon issued numberice to the governmental
authorities under s80 of the civil procedure companye and filed
the suit out of which the present appeal arises on october
8 1957.
the appellant prayed in the suit for two main reliefs  1
a declaration that it had a right to quarry stones from the
suit-land apparently
even without a permit and  2  alternatively for a perpetual
injunction directing the defendants-the union of india and
the companylector and the delhi development authorities-to issue
the required permit on payment of royalties as before. the
first of the above reliefs was based on the plea that the
land-owner from whom it claimed title under the lease had
vested in him the ownership of the minerals with the result
that the appellant had a right to effect the quarrying
without the necessity for a permit under the delhi minumber
mineral rules referred to earlier. the other alternative
prayer was rested on the ground that even if the mineral
rights in the suit-land vested in government the appellant
had a legal right to carry on quarrying operations on the
land and that there was an obligation on the part of the
collector to grant the permit applied for. it was the
further case of the appellant that the companylector refused the
permit mala fide and for reasons which were extraneous to
the purpose for which the power to grant permits was vested
in him under the statutory rules. the trial companyrt dismissed
the suit holding against the appellant on every crucial
issue and this judgment has been affirmed by companyrts right up
to the high companyrt in the judgment number under appeal. two principal points have been urged by mr. bindra-learned
counsel for the appellant in support of its plea. his first
contention was that the learned judge of the high companyrt had
misunderstood and misapplied the provisions of s.42  of the
punjab land revenue act and  that if that section were
properly companystrued the appellants lessor should be held to
be the owner of the mineral rights in the suit- lands. for
understanding this companytention it is necessary to set out the
terms of s.42. it reads
42.  1  when in any record-of-rights
completed before the eighteenth day of
numberember 1871 it is number expressly provided
that any forest quarry unclaimed un-
occupied deserted or waste land spontaneous
produce or other accessory interest in land
belongs to the land-owners it shall be
presumed to belong to the government. when in any record-of-rights companypleted
after that date it is number expressly provided
that any forest or quarry or any such land or
interest belongs to the government it shall be
presumed to belong to the land-owners. the presumption created by subsection
 1  may be rebutted by showing-
 a  from the record or report made by the
assessing officer at the time of assessment
or
 b  if the record or report is silent then
from a companyparison between the assessment of
villages in which there existed and the
assessment of villages of similar character in
which there did number exist any forest or
quarry or any such land or interest
that the forest quarry land or interest was
taken into account in the assessment of the
land-revenue. until the presumption is so rebutted
the forest quarry land or interest shall be
held to belong to the government. learned companynsel is numberdoubt right in his sub. mission that
the learned single judge of the high companyrt wrongly treated
sub-cl.  4  of this section as equally applicable to the
presumption raised in favour of the landowner by sub-s.  2
but this does number however establish that the appellant is
on the facts of this case entitled to invoke the pre-
sumption enacted in sub-s. 2 . it was companymon ground that
records of-rights had been prepared in respect of the
village of naran twice after 1871 though the relevant
entries in the documents were number placed before the companyrt by
either side. mr. bindra submitted that if once it was roved
that a record-of-rights had been prepared for a village
after 1871 the presumption in sub-s. 2  in favour of the
land-owner being entitled to the minerals was attracted and
that as the defendants in the present case had number produced
the record-of-rights the companyrt should have proceeded on the
basis that the appellant bad proved its title to the
minerals. we are wholly unable to accept this companystruction
of the section. section 42  2  raises a presumption against
the government when in any record-ofrights companypleted after
numberember 18 1871 it is number expressly provided that any
quarry belongs to the government but this presumption
arises only when the record-of-rights is before the companyrt
and flows from the companytents of the produced document. the
sub-section is numberauthority whatsoever for raising a
presumption as to the companytents of a recordof-rights which is
number produced and is number before the companyrt. learned companynsel
for the appellant is number also justified in inviting the
court to draw a presumption against the defendants from the
number-production of the document because the record-of-rights
is a public document and therefore available to the
appellant as well who companyld have obtained a certified companyy
and filed it if it supported its case. the appellant
produced for the year 1948-49 merely the jamabandi account
of the village and relied on the fact that there was no
mention therein of the government being proprietor of the
mineral rights but obviously the companytents of this document
could have numberbearing on the custom obtaining in the village
as to the proprietorship of the minerals which would find
mention only in a wajib-ul-arz and a jamabandi account is
certainlynumber a document on the basis of which the
presumption in s.42 2  companyld be invoked. the position
therefore was that the relevant record of-rights was number
before the companyrt and companysequently the presumptions raised
neither by sub-ss.  1  or  2  of s.42 companyld be invoked in
favour of government or the owner. there were however two facts before the. companyrts on the
basis of which the title to the minerals companyld have been
decided. the first was that the appellant had been working
the minerals only on the strength or permits obtained from
the companylector and as we have pointed out earlier this
could have happened only if its lessor was number the owner of
the minerals. learned companynsel numberdoubt sought to explain
this companyduct of the appellant on the basis that it might
have made application for a permit under a mistake as to its
rights. this however does number help him because the making
of the application would companystitute an admission which would
throw upon the appellant burden of proving that it was done
under a mistake and the mistake established to the
satisfaction of the companyrt. this was number even attempted. this apart a plaintiff who companyes to companyrt with an
allegation that be is the owner of the minerals would have
to prove his title to the property before he companyld succeed
in the suit but the appellant led numberevidence to prove his
title. mr. bindra made a submission that a presumption in
favour of the plaintits ownership arose under s. 110 of the
indian evidence act by reason of the appellants admitted
possession of the property. this however is entirely
without force since the possession of the minerals with
which alone we are number companycerned was under the permit
granted by the companylector-a situation which clearly negatived the plaintif
fs ownership of the minerals having regard to
the schemes of the minumber mineral rules. the companyrts below
were therefore right in holding that the appellants claim
on the basis of established proprietary rights to the quarry
should fail
the respondents have filed in this companyrt an application for
the admission of additional evidence and the items of
evidence so sought to be admitted are the entries in the
wajib-ul-arz of the record-ofrights of the suit-village
prepared in 1880 and 1908-09. these clearly recite the fact
that the government were owners of the stone-quarries in the
village. learned companynsel for the appellant strenuously
objected to the admission of additional evidence at this
stage and submitted that if the application were allowed he
should be given an opportunity of adducing evidence to
disprove the companyrectness of these entries. in view of our
conclusion as regards the rights of the appellant even
without these additional documents we do number companysider it
necessary to admit them. we hold that the appellant has number
proved its title to the mineral rights in the suit-lands and
that its claim for a declaration on that basis was properly
dismissed by the companyrts below. the other point urged by learned companynsel was that even if it
be that the government were the proprietors of the minerals
and the permission of the-collector was necessary to be
obtained under the minumber mineral rules 1938 still the
collector was under a legal obligation to grant a permit to
the appellant sunless there were proper grounds for refusing
the permit and that the grounds of his refusal in the
present case were improper and mala fide. in this
connection it was pointed out that the companylector had refused
the permit sought by the appellant because of a resolution
of the delhi development provisional authority companystituted
under act 53 of 1955. by reason of proceedings of that
authority the land in suit bad been included in a
controlled area i.e. an area which was reserved for other
purposes with the result that it was thought proper and
expedient to prohibit quarrying in it. in the plaint it was
alleged that the companylector acted improperly
in giving effect to the recommendation of the board in the
matter of prohibiting quarrying on the suit-land. before
us however learned companynsel did number seriously companytest the
position that if the land was in a companytrolled area under
act 53 of 1955 and there was need to prohibit quarrying in
the interests of the health of the people inhabiting the
residential area adjoining the quarries and the companylector
was appraised of this fact by the development authority the
order of the companylector refusing permission companyld number be
successfully impugned. but learned companynsel urged that act
53 of 1955 had ceased to be operative after december 30
1957 when it was replaced by the delhi development act of
1957 and that under the latter enactment the area had number
been so numberified. having regard to this changed situation
the companytention was that at the date when the trial companyrt
passed judgment it should have taken judicial numberice of the
fact that act 53 of 1955 had ceased to be in force and that
the numberification thereunder had lapsed and that if these
matters were taken into account the appellant had a clear
legal right to the relief of mandamus which he prayed for
directing the companylector to grant the permission sought. it
is number necessary for the purpose of this case to examine the
limits subject to which a companyrt companyld take into account
subsequent facts and afford relief on the basis of such
facts. the position so far as the appellant was companycerned
was this it had made an application to the companylector to
permit it to quarry stones and this had been refused. it
was this refusal which was challenged as illegal and it was
on this basis that the relief of mandatory injunction was
sought in the plaint. it would be one thing if the
appellant was able to make out the case that the companylectors
refusal to grant the permission in april-may 1957 was
improper but that is number the situation her.-. the argument
was that the trial companyrt ought to have taken into account
the fact that long subsequent to the filing
of the plaint the statute or order which justified the
refusal of the permission had ceased to exist and that this
vested in the appellant a right to obtain the grant of a
permit. the argument in our opinion proceeds on a
fallacy. if the application of the appellant was properly
refused by the companylector before the suit the result was
that there was numberpending application before the authority
for the grant of a permit. it is companymon ground that during
the pendency of there proceedings in the trial companyrt no
fresh application was made to the companylector on the basis of
the altered state of facts.