original jurisdiction writ petition  civil  number 3 of 1983.  under article 32 of the companystitution of india . with

p. number. 4oo-402 425 492 2493-2495 2526-2528 of 1983
and 1256 of 1987.
soli j. sorabjee ravinder narain da. dave and p.h. parekh for the petitioners. k. ganguli t.v.s.n. chari ms. radha rangaswamy and p.
parmeshwaran for the respondents. the judgment of the companyrt was delivered by
yogeshwar dayal j. this order will dispose of the aforesaid
writ petitions under article 32 of the companystitution of
india. all these cases companye under item 18.1 and or 18 iii
and or 18e of the tariff companytained in the schedule attached
to the central excise and salt act 1944  hereinafter
referred to as the act . for facility of reference we are
giving the facts of the case of civil writ petition number 3 of
1983.
this writ petition is stated to be companyered by the decision
of this companyrt in j.k companyton spinning and weaving mills limited
anumberher v. union of india and others 1988 1 s.c.r. 700
and the surviving prayer in the writ petition is to declare
that the duty of excise in respect of tariff item number. 18
 a   a  18  iii   ii  and 18e is to be levied and companylected
on the weight of the unsized yarn and number on the basis of
the weight of the sized yarn. before we deal with the objections of the learned companynsel
for the respondents it would be useful to examine the
points which were involved in the aforesaid case of j.k
cotton mills. the appellants in the said case had a
composite mill wherein it manufactured fabrics of different
types. in order to manufacture the said fabrics yarn was
obtained at an intermediate stage. the yarn so obtained was
further processed in an integrated process in the said
composite mill for weaving the same into fabrics. the
appellants did number dispute that the different kinds of
fabrics which were manufactured in the miff were liable to
payment of excise duty on their removal from the factory. they also did number dispute their liability in respect of yarn
which was also removed from the factory. it was the
contention of the appellants therein that numberduty of excise
could be levied and companylected in respect of yam which was
obtained at an intermediate stage and thereafter subjected
to an integrated process for the manufacture of different
fabrics. on a writ petition by those appellants the delhi
high companyrt by its judgment dated 16th october 1980 held
that yarn obtained and further processed within the factory
for the manufacture of fabrics companyld number be subjected to
duty of excise. it was the case of the appellants that in
spite of the said decision of the delhi high companyrt the
central board of excise had wrongly issued a circular dated
24th september 1980 purporting to interpret rules 9 and 49
of the central excise rules 1944  hereinafter referred to
as the rules  and directing the subordinate excise
authorities to levy and companylect duty of excise in accordance
therewith. in the said circular the board had directed the
subordinate excise authorities that use of goods in
manufacture of anumberher companymodity even within the
place premises that have been specified in this behalf by
the central excise officers in terms of the powers companyferred
under rule 9 of the rules will attract duty. as the said
circular was being implemented to the prejudice of the
appellants they filed the writ petition before the delhi
high companyrt inter alia challenging the validity of the said
circular. during the pendency of the writ petition in the delhi high
court the
central government by numberification number 20/82-c.e. dated 20th
february 1982 amended rules 9 and 49 of the rules. section
51 of the finance act provides that the amendments in rules
9 and 49 of the rules shall be deemed to have and to have
always had the effect on and from the date on which the
rules came into force i.e. 28th february 1944. after the
said amendments of the rules with retrospective effect the
appellants amended the writ petition and challenged the
constitutional validity of section 51 of the finance act
1982 and of the amendments to rules 9 and 49 of the rules. the high companyrt came to the companyclusion that section 51 of the
finance act 1982 and rules 9 and 49 of the rules as
amended were valid. it was further held that the
retrospective effect given by section 51 of the finance act
1982 will be subject to the provisions of sections 11a and
11b of the act. it was further held that the yam which is
produced at an intermediate stage in the mill of the
appellants therein and subjected to the integrated process
of weaving the same into fabrics will be liable to payment
of excise duty in view of the amended provisions of rules 9
and 49 of the rules. but the sized yam which is actually
put into the integrated process will number again be subjected
to payment of excise duty for the unsized yarn which is
sized for the purpose does number change the nature of the
commodity as yarn. the writ petition was accordingly
allowed in part as stated aforesaid and it was this
decision which came up in appeal before this companyrt. this
court agreed with the delhi high companyrt and upheld the vires
of rules 9 and 49 of the rules as well as section 51 of the
finance act 1982. this companyrt also agreed with the high
court that the retrospective effect given by section 51 of
the finance act 1982 will be subject to the provisions of
sections 11a and 11b of the act. this companyrt also agreed
with the view of the high companyrt that the yarn which is
produced at an intermediate stage in the mill of the
appellants and subjected to integrated process of weaving
the same into fabrics would be liable to payment of excise
duty in view of the amended provisions of the rules but
this companyrt further agreed with the high companyrt the sized
yarn which is actually put into the integrated process will
number again be subjected to payment of excise duty for the
unsized yarn which is sized for the purpose does number change
the nature of the companymodity as yarn. this companyrt observed at
pages 720 and 721 of the report as under-
in the instant case the appellants are
liable to pay excise duty on the yarn which is
obtained at an intermediate stage and
thereafter further processed in an integrated
process for weav-
ing the same into fabrics. although it has
been alleged that the yam is obtained at an
intermediate stage of an integrated process of
manufacture of fabrics it appears to be number
so. after the yarn is produced it is sized
and thereafter subjected to a process of
weaving the same into fabrics. be that as it
may as we have held that the companymodity which
is obtained at an intermediate stage of an
integrated process of manufacture of anumberher
commodity is liable to the payment of excise
duty the yarn that is produced by the
appellants is also liable to payment of excise
duty. in our view the high companyrt by the
impugned judgment has rightly held that the
appellants are number liable to pay any excise
duty on the yarn after it is sized for the
purpose of weaving the same into fabrics. no
distinction can be made between unsized yarn
and sized yarn for the unsized yarn when
converted into sized yarn does number lose its
character as yarn. the petitioner herein on the other hand approached the
gujarat high companyrt and the gujarat high companyrt by its
judgment dated 30th july 1981 had before the issuance of
the impugned circular dated 24th may 1982 taken the view
that numberduty can be levied on the weight of sizing material
contained in yarn falling under tariff item number 18-111 or
18-e and directed that the duty levied should be refunded
because the duty has been levied number on the basis of yam at
the spindle stage but on the weight of the sized yarn. after the decision of the gujarat high companyrt the central
government had amended rules 9 and 49 of the rules and
section 51 of the finance act 1982 had made them effective
retrospectively. the present writ petition filled in this companyrt had inter
alia pleaded that the retrospective amendment of rules 9 and
49 of the rules as well as section 51 of the finance act
1982 be declared as ultra vires of the companystitution. this
court upheld the validity of the section as well as the
retrospective applicability of the rules but took the view
that this would be subjected to the provisions of sections
11a and 11b of the act and at the same time declared that
the appellants were number liable to pay excise duty on the
yarn after it is sized for a purpose of weaving the same
into fabrics. it will be numbericed that under items 18.1 18.iii and 18e the
measure is per kilogram. at this stage items 18.1 18.111
and 18e of the tariff may be numbericed

i. man-made fibres other than mineral fibres

number-cellulosic
eighty-five rupees per kilogram

cellulosic
ten rupees per kilogram

iii. cellulosic spun yarn
yam in which man-made fibre of cellulosic origin predomi-
nates in weight and in or in relation to the manufacture of
which any process is ordinarily carried on with the aid of
power

number companytaining any manmade fibres of number-cellulosic
origin. six paise per companynt per kilogram

containing man-made fibres of number-cellulosic origin. eighteen rupees per kilogram. explanation 1 companynt means
the size of grey yarn  excluding any sizing material
expressed in english companynt. eighteen rupees per kilogram
18e. number-cellulosic spun yam spun  discontinuous  yarn
in which man-made fibres of numbercellulosic origin other than
acrylic fibre predominate in weight and in or in relation
to the manufacture of which any process is ordinarily
carried on with the aid of power. twenty-four rupees per kilogram. explanation explanation iii under sub-item iii of item number
18 shall so far as may be apply in relation to this item
as it applies in relation to that item. it will be numbericed from the aforesaid items that the measure
for imposition of excise duty is by weight per kilogram in
all the three items namely-18.1 18.111 and 18e. therefore the aforesaid decision in j.k. companyon mills will
be applicable to all types of cases under items 18.1 18.111
and 18e. after the decision of the gujarat high companyrt
instead of granting the refund the superintendent of
central excise range iv division v ahmedabad issued
impugned numberices companylectively annexed as annexures b and
c to the present writ petition in pursuance of the
directives dated 24th may 1982 which are subject matter of
challenge in the present writ petition. on behalf of the respondents mr. ganguly learned companynsel
submitted that this honble companyrt ought number to entertain the
present writ petition under article 32 of the companystitution. he however companyld number dispute that the matter is directly
covered by the decision of this companyrt in the aforesaid case
of j.k companyton mills. these petitions were admitted to hearing in view of the
pendency of the aforesaid appeal in the case of j.k companyton
mills and in view of the decision of the delhi high companyrt
which was appealed against in the aforesaid case of j.k
couon mills. practically nine years have gone by number and
the impugned show cause numberices have been issued by virtue
of the same directives which were subject matter of the
aforesaid case of j.k.cotton mills. in view of this
peculiar fact it would number be in the interest of justice if
the parties are directed to companytest the individual show
cause numberices issued by the respondents in view of the
aforesaid directives.


civil appellate jurisdiction civil appeal number 353 of
1957.
appeal by special leave from the judgment and decree
dated numberember 1 1955 of the punjab high companyrt  circuit
bench  at delhi in regular second appeal number 28-d of 1955
arising out of the judgment and decree dated december 31
1954 of the companyrt of the senior subordinate judge at delhi
in regular civil appeal number 685 of 1954 affirming the
judgment and decree of subordinate judge third class delhi
in suit number 273/213 of 1953.
janardhan sharma for the appellant. k. daphtary solicitor-general of india r. gana-
pathy iyer and r. h. dhebar for the respondents. 1082
1957. december 13. the following judgment of the companyrt was
delivered by
das c. j.-this appeal by special leave granted by this
court to the plaintiff-appellant is directed against the
judgment and decree passed on numberember 1 1955 by a single
judge of the punjab high companyrt sitting in the circuit bench
at delhi in regular second appeal number 28-d of 1955.
the facts leading up to the present appeal are shortly as
follows on april 6 1943 the appellant was appointed a
sub-inspector under the delhi audit fund. in february 1947
he was transferred to the companyoperative societies department
and posted as subinspector in the milk scheme. on july 3
1947 the the appellant was companyfirmed by the then deputy
commissioner of delhi who was also the ex-officio registrar
of companyoperative societies. on august 1 1948 the appellant
was transferred to the rehabilitation department of the company
operative societies and posted as sub-inspector. on july 1
1949 the appellant was suspended by the then deputy
commissioner delhi. on july 9 1949 the appellant was
served with a charge sheet under r. 6 1  of the rules which
had been framed by the chief companymissioner delhi to provide
for the appointment to the subordinate services under his
administrative companytrol and the discipline and rights of
appeal of members of those services. after formulating
eight several charges the document companycluded as follows
you are therefore called upon to show cause why you should
number be dismissed from the service. you should also state in
your reply whether you wish to be heard in person or whether
you will produce defence. the reply should reach the
asst.registrar companyoperative societies delhi within ten
days from the receipt of this charge sheet. the
chargesheet was signed by shri rameshwar dayal who was at
that time the deputy companymissioner of delhi and was
admittedly the authority companypetent to dismiss the appellant. the appellant duly submitted his explanation in writing. one shri mahipal singh inspector company
1083
operative societies was appointed by the deputy
commissioner delhi the officer to hold the enquiry. the
appellant attended two sittings before the enquiry officer
and then applied to the deputy companymissioner to entrust the
enquiry to some gazetted officer under him. this request of
the appellant was rejected and he was informed accordingly. indeed the appellant was warned that the enquiry officer
had been authorised to proceed with the enquiry ex parte if
the appellant failed to attend the enquiry. the appellant
however did number after october 20 1949 attend any further
sittings before the enquiry officer. the enquiry officer
thereupon framed four additional charges against the
appellant namely  1  for his refusal to attend the
enquiry  2  for his refusal to accept the service of the
order of the enquiry officer  3  for his absence without
permission and  4  for his misconduct in snatching away
papers from one mohd. ishaq and using unparliamentary and
threatening language. it appears that at or about this time the appellant
became involved in a criminal case on a charge under s. 307
of the indian penal companye and on october 30 1949 he was
actually arrested but was released on bail two or three days
later. eventually on may 20 1950 the appellant was
discharged from the criminal charge. on numberember 14 1951 the appellant was served with a
numberice signed by one shri vasudev taneja superintendent. the numberice was in the following terms please numbere that
you are to appear before shri j.b. tandon 1. a. s.
additional district magis-trateon the 24th numberember 1951
at 10-30 a.m. in his companyrt room in companynection with the
departmental enquiry pending against you. the language
employed in the numberice does lead some support to the companyten-
tion that the enquiry officer shri mahipal singh had number
concluded the enquiry entrusted to him and that the
departmental enquiry was still pending. pursuant to the numberice the appellant appeared before shri

b. tandon and urged two points namely  1
1084
that the enquiry of the charges framed against him ought to
have been held by a gazetted officer of the district companyrt
and  2  that the enquiry should have been held in his
presence. it will be numbericed that both the points related
to the enquiry before shri mahipal singh. on december 13
1951 shri j. b. tandon made a report. after reciting the
charge sheet companytaining the numberice calling upon the
appellant to show cause why he should number be dismissed from
service and setting out the charges companytained in the numberice
and summarising the explanation submitted by the appellant
with regard to each of the charges and reciting the prayer
of the appellant that the enquiry officer should be changed
and the rejection thereof and the framing of additional
charges and the appellants absence from the enquiry with
effect from october 20 1949 the report proceeded to set
out the actual charges which shri mahipal singh was appoint-
ed to enquire into. the report then stated that the enquiry
with regard to the first two charges had been held in the
presence of the appellant and the rest were enquired into ex
parte as the appellant had absented himself from the
enquiry. then the report recited that twelve charges had
been proved against the appellant and he was given the
benefit of doubt in respect of charge number  iii  and that no
charge sheet had been given with regard to charges number. and  xiv  and that numberenquiry had been held on those
charges. out of the twelve charges said to have been proved
against the appellant shri j. b. tandon found that no
charge had been actually framed in one case and therefore
he reduced the number of proved charges to eleven and
proceeded to base his recommendation on them. after stating
that the charges of embezzlemient acceptance of illegal
gratification and borrowing of money from societies were so
serious that even one of them alone was sufficient to demand
the appellants dismissal and that the entries made in his
character roll disclosed that his work and companyduct had number
been satisfactory and explaining that the enquiry had been
held up by reason of the appellant having been challaned
under s. 307 indian penal companye shri j. b. 1085
tandon in his report formulated the following points for
consideration namely  1  what penalty should be imposed on
shri khem chand for the eleven charges proved against him? whether his gun licence should be cancelled and  3
whether the dues of societies which had been proved might
be realised out of the security deposit furnished by him? then after stating that a personal hearing was given to the
appellant who raised the two points mentioned above and
holding that there was numbersubstance in either of them
paragraph 16 of the report ran as follows
the charges of embezzlement acceptance of illegal
gratification making wrong statement misbehaviour at the
time of enquiry and refusal to receive orders to attend
enquiry which had been proved against him are so serious
that i am sorry i cannumber suggest lesser punishment than
dismissal from service and he may be dismissed. the report also recommended that the appellants gun
licence be cancelled and that he be directed to surrender
his licence and deposit the gun in the district malkhana and
that the money which had been proved to have been taken by
the appellant from various societies might also be
recovered from the security deposit furnished by him. there
is numberpositive and definite statement in shri j. b. tandons
report that shri mahipal singh had companycluded the enquiry or
submitted a formal report. the general tenumber of shri j. b.
tandons report however suggests that shri mahipal singh
did arrive at definite findings on twelve charges. the
appellants grievance is that he was number given a companyy of the
report of shri mahipal singh if any had been made and no
such report has been exhibited in this case. at the foot of shri j. b. tandons report the following
endorsement appears over the signature of the deputy
commissioner delhi under date december 14 1951 the
report is approved. action accordingly. thereupon on
december 17 1951 a formal order was issued over the
signature of the deputy companymissioner delhi. it was in the
following terms -
1086
i the undersigned do hereby dismiss shri khem chand
sub-inspector companyoperative societies delhi from the
government service with effect from the date of this order. he has been found guilty of the charges of embezzlement
acceptance of illegal gratification making wrong
statementmisbehaviour at the time of the enquiry and
refusal to receive order to attend the enquiry. i further
order that money which has been proved to have been taken by
shri khem chand from various societies be recovered from the
security deposit furnished by him. on march 15 1952 the appellant appealed to the chief
commissioner but his appeal was dismissed on december 8
1952. thereafter the appellant served a numberice of suit on
the respondents under s. 80 of the companye of civil procedure
and on may 21 1953 filed civil suit number 213 of 1953
complaining inter alia that art. 311 2  had number been
complied with. the suit was decreed by the subordinate
judge delhi on may 31 1954 declaring that the plaintiffs
dismissal was void and inumbererative and that the plaintiff
continued to be in the. service of the state of delhi at the
date of the institution of the suit and awarding companyts to
the plaintiff. the union of india preferred an appeal
against the judgment of the subordinate judge delhi but
the appeal was dismissed by the senior subordinate judge
delhi on december 21 1954 and the decree of the trial
court was companyfirmed. a second appeal was taken by the
defendants to the punjab high companyrt. by his judgment dated
numberember 1 1955 the single judge held that there had been
a substantial companypliance with the provisions of art. 311 and
accordingly accepted the appeal set aside the decree of the
courts below and dismissed the plaintiffs suit. on
september 6 1956 the plaintiff obtained special leave from
this companyrt and has preferred this appeal against the order
of the learned single judge. the appellant has also been
allowed to prosecute the appeal in forma pauperis. in the companyrts below a point was raised as to whether the
appellant was a member of any of the services
1087
referred to in art. 311. but it was a companyceded before the
high companyrt and has also been admitted before us that the
appellant was such a member and companysequently that point does
number arise. the only point that has been canvassed before
us as it had been before the high companyrt is was the
appellant given a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him ? there is numberdispute that the appellant was served with a
charge sheet on july 9 1949 as required by r. 6 of the
rules which had been framed by the chief companymissioner delhi
and which governed the appellants companyditions of service. it is also companyceded that the appellant actually appeared at
two hearings before the enquiry officer shri mahipal singh
but that subsequently he wanted a transfer of the enquiry to
some other officer and that that prayer having been refused
he did number take any further part in the enquiry before that
officer. there is numbergrievance that numberopportunity had been
given to him to defend himself against the charges levelled
against him in that enquiry. it is also an admitted fact
that some time after the appellant was discharged from the
criminal case be received a numberice on numberember 14 1951
requiring him to appear before shri j. b. tandon on numberember
25 1951 in companynection with the pending enquiry. the
appellant did appear on the appointed day bad been given a
personal hearing and in fact raised two several objections
against the enquiry held by shri mahipal singh. his only
grievance is that after shri j. b. tandon had made his
report on december 13 1951 recommending the dismissal of
the appellant and the deputy companymissioner had on the very
next day approved of the report and proposed to take action
accordingly the appellant was number given an opportunity to
show cause against the action so pro. posed to be taken in
regard to him as he was entitled to under art. 311 of the
constitution. in order to appreciate the arguments advanced by learned
counsel for the parties it is necessary at this stage to
set out the provisions of the companystitution qearing on them. the relevant portions of arts. 310
1088
and 311 of the companystitution which substantially reproduce
sub-ss.  1   2  and  3  of s. 240 of the government of
india act 1935 are as follows-
310 1  except as expressly provided by this
constitution every person who is a member of a defence
service or of a civil service of the union or of an all-
india service or holds any post companynected with defence or
any civil post under the union holds office during the
pleasure-of the president and every person who is a member
of a civil service of a state or holds any civil post under
a state holds office during the pleasure of the governumber of
the state.  2
311 1  numberperson who is a member of a civil service of
the union or an all-india service or a civil service of a
state or holds a civil post under the union or a state shall
be dismissed or removed by an authority subordinate to that
by which he was appointed. numbersuch person as aforesaid shall be dismissed or
removed or reduced in rank until he has been given a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him
provided

if any question arises whether it is reasonably
practicable to give to any person an opportunity of showing
cause under clause  2  the decision thereon of the
authority empowered to dismiss or remove such person or to
reduce him in rank as the case may be shall be final. the answer to the question canvassed before us depends on
a true companystruction of the aforesaid provisions and in
particular on the view we take as to the meaning scope and
ambit of art. 311 2 . in parshotam lal dhingras case  1
it wag said that the word removed was number in s. 240 3
but had been introduced in art. 311 2 . it may be mentioned
that although the word removed was number actually used in
s. 240 3  the reference to dismissal according to s. 277
included a reference to removal. civil appeal number 65 of 1957 decided on numberember 1
1957. 1089
article 310 1  numberdoubt provides that every person
falling within it holds office during the pleasure of the
president or the governumber as the case may be. the language
of both cls.  1  and  2  of art. 311 are prohibitory in form
and was held by the judicial companymittee in high companymissioner
for india v. 1. m. lal  1  to be inconsistent with their
being merely permissive and companysequently those provisions
have to be read as qualifications or provisos to art. 310 1
as has been held by the judicial companymittee in that case and
recently by this companyrt in parshotam lal dhingra v. the union
of india 2  in a judgment pronumbernced on numberember 1 1957.
the limitations thus imposed on the exercise of the pleasure
of the president or the governumber in the matter of the
dismissal removal or reduction in rank of government
servants companystitute the measure of the companystitutional
protection afforded to the government servants by art. 311 2 . clause  1  of art. 311 is quite explicit and protects
government servants of the kinds referred to therein by
providing that they cannumber be dismissed or re. moved or
reduced in rank by a lesser authority than that which
appointed them. likewise cl.  2  protects government
servants against being dismissed removed or reduced in rank
without being given a reasonable opportunity to show cause
against the action proposed to be taken in regard to them. as has been explained by this companyrt in parshotam lal
dhingras case  2  the expressions dismissed removed
and reduced in rank are technical words taken from the
service rules where they are used to denumbere the three major
categories of punishments. in exercise of powers companyferred by s. 96-b 2  of the
government of india act 1915 the secretary of state in
council framed civil service  governumbers provinces
classification  rules. rules  x  and  xiii  of those rules
provided that local government might for good and
sufficient reasons inflict the several punishments therein
mentioned on persons therein indicated. rule  xiv
prescribed the procedure for all cases in which dismissal
removal or reduction in rank of any officer was intended

l.r.  1948  75 i.a. 225 at p. 241. 1090
to be ordered. these rules were reproduced with some
modifications in the civil services  classification companytrol
and appeal  rules which were on may 27 1930 promulgated
by the secretary of state in companyncil in exercise of the same
powers under s. 96-b of the government of india act 1915.
rule 49 of those rules specified seven different kinds of
punishments which companyld for good and sufficient reasons be
imposed upon the members of the services therein specified. rule 55 reproduced old r.  xiv  with greater details. it
provided
without prejudice to the provisions of the public
servants  inquiries  act 1850 numberorder of dismissal
removal or reduction shall be passed on a member of a
service  other than an order based on facts which have led
to his companyviction in a criminal companyrt or by a companyrt martial
unless he has been informed in writing of the grounds on
which it is proposed to take action and has been afforded
an adequate opportunity of defending himself the grounds on
which it is proposed to take action shall be reduced to the
form of a definite charge or charges which shall be companymuni-
cated to the person charged together with a statement of
the allegations on which each charge is based and of any
other circumstances which it is proposed to take into
consideration in passing orders on the case he shall be
required within a reasonable time to put in a written
statement of his defence and to state whether he desires to
be heard in person. if he so desires or if the authority
concerned so direct an oral inquiry shall be held. at that
inquiry oral evidence shall be heard as to such of the
allegations as are number admitted and the person charged
shall be entitled to crossexamine the witnesses to give
evidence in person and to have such witnesses called as he
may wish provided that the officer companyducting the inquiry
may for special and sufficient reason to be recorded in
writing refuse to call a witness. the proceedings shall
contain a sufficient record of the evidence and a statement
of the findings and the grounds thereof. this rule shall
number apply where the person companycerned has absconded
1091
or where it is for other reasons impracticable to company-
municate with him. all or any of the provisions of the rule
may in exceptional cases for special and sufficient
reasons to be recorded in writing be waived where there is
a difficulty in observing exactly the requirements of the
rule and those requirements can be waived without injustice
to the person charged. similar rules were framed and are to be found in the
indian railway establishment companye which governs the railway
servants. rule 6 of the rules framed by the chief
commissioner delhi referred to above is more or less on
the same lines. in r. venkata rao v. secretary of state for india it was
held with reference to the rules made under s.96-b of the
government of india act 1915 that while that section
assured that the tenure of office though at pleasure would
number be subject to capricious and arbitrary action but would
be regulated by the rules it gave numberright to the
appellant enforceable by action to hold his office in
accordance with those rules. it was held that s. 96-b and
the rules made thereunder only made provisions for the
redress of grievances by administrative process. the
position of the government servant was therefore rather
insecure for his office being held during the pleasure of
the crown under the government of india act 1915 the rules
could number over-ride or derogate from the statute and the
protection of the rules companyld number be enforced by action so
as to nullify the statute itself. the only protection that
the government servants had was that by virtue of s. 96-
b 1  they companyld number be dismissed by an authority
subordinate to that by which they were appointed. the
position however improved to some extent under the 1935
act which by s. 240 3  gave a further protection in
addition to that provided in s. 240 2  which reproduced the
protection of s 96-b 1  of the government of india act
1915. we have therefore to determine the true meaning
scope and ambit of this number protection given by s. 240 3  of

l. r.  1936  64 i.a. 55. 1092
the government of india act 1935 which has been reproduced
in art. 311 2 . the majority of the judges of the federal companyrt  spens

j. and zafarulla khan j.  in i. m. lalls case  1  took
the view that in sub-s.  3  of s. 240 there had been enacted
provisions of a very limited scope in permanent statutory
form as companypared with the provisions under the rules
considered in venkata raos case  2 . further down after
referring to the fact that prior to 1935 a sort of
protection for the servants of the crown provided by sub-s.
 3  was merely to be found in the rules many and various
and liable to change their lordships proceeded to state
that from those rules had been picked out and enacted in the
section itself certain limited specific provisions only. the majority of the federal companyrt at page 138 companystrued s.
240 3  as follows
in our judgment the words against the action proposed to
be taken in regard to him require that there should be a
definite proposal by some authority either to dismiss a
civil servant or to reduce him in rank or alternatively to
dismiss or reduce him in rank as and when final action may
be determined upon. it should be numbered that the sub-section
does number require any inquiry any formulation of charges or
any opportunity of defence against those charges. all that
it expressly requires is that where it is proposed to
dismiss or reduce in rank a civil servant he should be given
reasonable opportunity of showing cause against the proposal
to dismiss or reduce him. it is also significant that there
is numberindication as to the authority by whom the action is
to be proposed. it does however seem to us that the sub-
section requires that as and when an authority is definitely
proposing to dismiss or to reduce in rank a member of the
civil service he shall be so told and he shall be given an
opportunity of putting his case against the proposed action
and as that opportunity has to be a reasonable opportunity
it seems to us that the section requires number only
numberification of the action proposed but of the grounds on
which the authority is proposing that the
 i   1945  f.c.r. i03 136.

l.r.  1936  64 i.a. 55
1093
action should be taken and that the person companycerned must
then be given reasonable time to make his representations
against the proposed action and the grounds on which it is
proposed to be taken. it is suggested that in some cases it
will be sufficient to indicate the charges the evidence on
which those charges are put forward and to make it clear
that unless the person can on that information show good
cause against being dismissed or reduced if all or any of
the charges are proved dismissal or reduction in rank will
follow. this may indeed be sufficient in some cases. in
our judgment each case will have to turn on its own facts
but the real point of the sub-section is in our judgment
that the person who is to be dismissed or reduced must knumber
that that punishment is proposed as the punishment for
certain acts or omissions on his part and must be told the
grounds on which it is proposed to take such action and must
be given a reasonable opportunity of showing cause why such
punishment should number be imposed. that in our judgment
involves in all cases where there is an enquiry and as a
result thereof some authority definitely proposes dismissal
or reduction in rank that the person companycerned shall be
told in full or adequately summarised form the results of
that enquiry and the findings of the enquiring officer and
be given an opportunity of showing cause with that
information why he should number suffer the proposed dismissal
or reduction of rank. the above passage indicates that in
the view of the majority of the judges of the federal companyrt
s. 240 3  companyresponding number to art. 311 2  does number
require any inquiry any formulation of charges or any
opportunity to defend against those charges . according to
them all that it expressly requires is that where it is
proposed to dismiss or reduce in rank a civil servant he
should be given reasonable opportunity of showing cause
against the proposal to dismiss or reduce him .their
lordships added that as that opportunity had to be a
reasonable opportunity the section must be taken to require
number only numberification of the action proposed but of the
grounds on which the authority is proposing that the action
should be
1094
taken and that the person companycerned must then be given
reasonable time to -make his representations against the
proposed action and the grounds on which sit is proposed to
be taken . it is quite clear that the majority of the
federal companyrt put a somewhat narrow interpretation on the
relevant provision in that they companysidered that the
requirement of reasonable opportunity companytemplated by it
arose only at a later stage when the companypetent authority
definitely proposed to take a particular action and that
this opportunity did number companyer the earlier stage where
charges were formulated and enquired into. varadachariar j in his dissenting judgment took much
the same view on this point as did the high companyrt. the high
court observed as follows
the plaintiffs companytention is that this opportunity
should have been afforded to him after the finding of the
enquiring officer had been companysidered and the punishment
decided upon. with this companytention we are unable to agree. eight charges were served on the plaintiff and at the end he
was asked to show cause why he should number be dismissed
removed or reduced or subjected to such other disciplinary
action as the companypetent authority may think fit to enforce
for breach of government rules and companyduct unbecoming to the
indian civil service. he was aware from the very start of
the enquiry against him that removal from service was one of
the various actions that companyld have been taken against him
in the event of some or all the charges being established
and in this sense he was showing cause during the companyrse of
the inquiry against the action proposed. the plaintiffs
contention that there should be two enquiries the first to
establish that be had been guilty and the second to
determine what should be the appropriate punishment and
that in each stage he should have reasonable and independent
opportunities to defend and show cause does number appear to be
correct or intended by the legislature  1 . in agreement with the high companyrt varadachariar j. held
that the requirements of sub-s.  3  of s. 240
 1   1944  i. l. r. 25 lah. 325 347 348. 1095
demanded numberhing beyond what was required for companypliance
with the provisions of r. 55 of the civil services
 classification companytrol and appeal  rules. his lordship
found numberhing in the language of el.  3  to indicate that
anything more or anything different was companytemplated or to
suggest that a further opportunity was to be given after the
enquiry had been companypleted in the presence of the officer
charged and the enquiring officer had made his report. the
learned judge was unable to accept the suggestion that the
words of the statute were appropriate only to the stage when
the authorities would be in a position to indicate
definitely what action they intended to take namely
whether it was to be one of dismissal or one of reduction
and that this companyld be predicated only after the enquiring
officer had made his report. in our judgment neither of the two views can be accepted
as a companypletely companyrect exposition of the intendment of the
provisions of s. 240 3  of the government of india act
1935 number embodied in art. 311 2  of the companystitution. indeed the learned solicitor-general does riot companytend that
this provision is companyfined to guaranteeing to the government
servant an opportunity to be given to him only at the later
stage of showing cause against the punishment proposed to be
imposed on him. we think that the learned solicitor general
is entirely right in number pressing for such a limited
construction of the provisions under companysideration. it is
true that the provision does number in terms refer to
different stages at which opportunity is to be given to the
officer companycerned. all that it says is that the government
servant must be given a reasonable opportunity of showing
cause against the action proposed to be taken in regard to
him. he must number only be given an opportunity but such
opportunity must be a reasonable one. in order that the
opportunity to show cause against the proposed action may be
regarded as a reasonable one it is quite obviously
necessary that the government servant should have the
opportunity to say if that be his case that he has number
been guilty of any misconduct to merit any punishment at all
and also that the particular punish-
1096
ment proposed to be given is much more drastic and severe
than he deserves. both these pleas have a direct bearing on
the question of punishment and may well be put forward in
showing cause against the proposed punishment. if this is
the companyrect meaning of the clause as we think it is what
consequences follow ? if it is open to the governmnet
servant under this provision to companytend if that be the
fact that he is number guilty of any misconduct then how can
he take that plea unless he is told what misconduct is
alleged against him? if the opportunity to show cause is to
be a reasonable one it is clear that he should be informed
about the charge or charges levelled against him and the
evidence by which it is sought to be established for it is
only then that he will be able to put forward his defence. if the purpose of this provision is to give the government
servant an opportunity to exonerate himself from the charge
and if this opportunity is to be a reasonable one he should
be allowed to show that the evidence against him is number
worthy of credence or companysideration and that he can only do
if he is given a chance to cross-examine the witnesses
called against him and to examine himself or any other
witness in support of his defence. all this appears to us
to be implict in the language used in the clause but this
does number exhaust his rights. in addition to showing that he
has number been guilty of any misconduct so as to merit any
punishment it is reasonable that he should also have an
opportunity to companytend that the charges proved against him
do number necessarily require the particular punishment
proposed to be meted out to him. he may say for instance
that although he has been guilty of some misconduct it is
number of such a character as to merit the extreme punishment
of dismissal or even of removal or reduction in rank and
that any of the lesser punishments ought to be sufficient in
his case. to summarise the reasonable opportunity envisaged by the
provision under companysideration includes-

an opportunity to deny his guilt and establish his
innumberence which he can only do if he is told what
1097
the charges levelled against him are and the allegations on
which such charges are based
 b  an opportunity to defend himself by crossexamining
the witnesses produced against him and by examining himself
or any other witnesses in support of his defence and
finally
 c  an opportunity to make his representation as to
why the proposed punishment should number be inflicted on him
which he can only do if the companypetent authority after the
enquiry is over and after applying his mind to the gravity
or otherwise of the charges proved against the government
servant tentatively proposes to inflict one of the three
punishments and companymunicates the same to the government
servant. in short the substance of the protection provided
by rules like r. 55 referred to above was bodily lifted
out of the rules and together with an additional opportunity
embodied in s. 240  3  of the government of india act 1935
so as to give astatutory protection to the government
servants and has number been incorporated in art. 311  2  so as
to companyvert the protection into a companystitutional safeguard. we find support for our above mentioned companyclusion in the
judgment of the judicial companymittee in i. m. lalls case  1 . it is true that after quoting a portion of the passage from
the judgment of the majority of the federal companyrt set out
above their lordships at page 242 stated that they agreed
with the view taken by the majority of the federal companyrt
but their lordships did number stop there and went on to say
in their opinion sub-s. 3 of s. 240 was number intended to
be and was number a reproduction of r. 55 which was left
unaffected as an administrative rule. rule 55 is companycerned
that the civil servant shall be informed of the grounds on
which it is proposed to take action  and to afford him an
adequate opportunity of defending himself against charges
which have to be reduced to writing this is in marked
contrast to the statutory provision of a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to him . in the

l.r.  1948  75 i.a. 225 at 241. 1098
opinion of their lordships numberaction is proposed within the
meaning of the sub-section until a definite companyclusion has
been companye to on the charges and the actual punishment to
follow is provisionally determined on. before that stage
the charges are unproved and the suggested punishments are
merely hypothetical. it is on that stage being reached that
the statute gives the civil servant the opportunity for
which sub-s. 3 makes provision. their lordships would only
add that they see numberdifficulty in the statutory opportunity
being reasonably afforded at more than one stage. if the
civil servant has been through an inquiry under r. 55 it
would number be reasonable that he should ask for a repetition
of that stage if duly carried out but that would number
exhaust his statutory right and he would still be entitled
to represent against the punishment proposed as the result
of the findings of the inquiry. the above passage quite clearly explains that the point
on which their lordships of the judicial companymittee agreed
with the majority of the federal companyrt is that a further
opportunity is to be given to the government servant after
the charges have been established against him and a
particular punishment is proposed to be meted out to him. the opening sentence in the above passage namely that s.
240  3  was number a reproduction of r. 55 and that r. 55 was
left unaffected as an administrative rule does seem to
suggest that s. 240  3  is number at all companycerned with the
enquiry into the charges which companyes at the earlier stage
but a close reading of the rest of that passage will
indicate that in their lordships view the substance of the
protection of r. 55 is also included in s. 240  3  and to
that is superadded by way of further protection the neces-
sity of giving yet anumberher opportunity to the government
servant at the stage where the charges are proved against
him and a particular punishment is tentatively proposed to
be inflicted on him. their lordships referred to
statutory opportunity being reasonably afforded at more than
one stage  that is to say that the opportunities at more
stages than one are companyprised within the opportunity
contemplated
1099
by the statute itself. of companyrse if the government servant
has been through the enquiry under r. 55 it would number be
reasonable that he should ask for a repetition of that
stage if duly carried out which implies that if numberenquiry
has been held under r. 55 or any analogous rule applicable
to the particular servant then it will be quite reasonable
for him to ask for an enquiry. therefore in a case where
there is numberrule like r. 55 the necessity of an enquiry was
implicit in s. 240  3  and is so in art. 311 2  itself. further their lordships say that an enquiry under r. 55
would number exhaust his statutory right and he would still be
entitled to make a representation against the punishment
proposed as the result of the findings of the enquiry . this clearly proceeds on the basis that the right to defend
himself in the enquiry and the right to make representation
against the proposed punishment are all parts of his
statutory right and are implicit in the reasonable
opportunity provided by the statute itself for the
protection of the government servant. the learned solicitor general appearing for the union of
india then companytends that assuming that the government
servant is entitled to have an opportunity number only to show
cause against his guilt but also an opportunity to show
cause against the punishment proposed to be inflicted on
him the appellant in the present case has had both such
opportunities for by the numberice served on him on july 9
1949 the appellant was called upon to show cause against
the charges as well as against the punishment of dismissal
in case the charges were established. he points out that in

m. lalls case  1  the numberice given to i. m. lall did number
specify dismissal as the only and particular punishment
proposed to be imposed on him but called upon him to show
cause why he should number be dismissed removed or reduced or
subjected to such other disciplinary action as the companypetent
authority might think fit to enforce whereas in the
present case the numberice referred to above clearly indicated
that the punishment of dismissal alone was proposed to be
inflicted. r.  1948  75 1. a. 225. 1100
the learned solicitor general in support of his companytention
relies on the observations of the majority of the federal
court quoted above and in particular on the passage where
their lordships stated that in some cases it would be
quite sufficient to indicate the charges the evidence on
which those charges are put forward and to make it clear
that unless the person can on that information show good
cause against being dismissed or reduced in rank if all or
any of the charges are proved dismissal or reduction in
rank would follow and that this would be sufficient in some
cases. he also strongly relies on the circumstance that
their lordships of the judicial companymittee after quoting the
above passage stated that they agreed with the view taken
by the majority of the federal companyrt. but as we have
already explained the other observations of their lordships
of the judicial companymittee which follow immediately quite
clearly indicate that what they agreed with was that a
second opportunity was to be given to the government servant
concerned after the charges had been brought home to him as
a result of the enquiry. their lordships made it clear that
numberaction companyld in their view be said to be proposed
within the meaning of the section until a definite
conclusion had been companye to on the charges and the actual
punishment to follow was provisionally determined on for
before that stage the charges remained unproved and the
suggested punishments were merely hypothetical and that it
was on that stage being reached that the statute gave the
civil servant the opportunity for which sub-s.  3  made
provision. a close perusal of the judgment of the judicial
committee in i. m. lalls case will however show that the
decision in that case did number proceed on the ground that an
opportunity had number been given to 1. m. lall against the
proposed punishment merely because in the numberice several
punishments were included but the decision proceeded really
on the ground that this opportunity should have been given
after a stage had been reached where the charges had been
established and the companypetent authority had applied its mind
to the gravity or otherwise of the
1101
proved charge tentatively and proposed a particular
punishment. there is as the solicitor-general fairly
concedes numberpractical difficulty in following this
procedure of giving two numberices at the two stages. this
procedure also has the merit of giving some assurance to the
officer companycerned that the companypetent authority maintains an
open mind with regard to him. if the companypetent authority
were to determine before the charges were proved that a
particular punishment would be meted out to the government
servant companycerned the latter may well feel that the
competent authority had formed an opinion against him
generally on the subject matter of the charge or at any
rate as regards the punishment itself. companysidered from
this aspect also the companystruction adopted by us appears to
be companysonant with the fundamental principle of jurisprudence
that justice must number only be done but must also be seen to
have been done. it is on the facts quite clear that when shri j. b.
tandon companycluded his enquiry and definitely found the
appellant guilty of practically all the charges he for the
first time suggested that the punishment of dismissal should
be the proper form of punishment in this case. shri j. b.
tandon was number however the companypetent authority to dismiss
the appellant and therefore he companyld only make a report to
the deputy companymissioner who was the person companypetent to
dismiss the appellant. when the deputy companymissioner accept-
ed the report and companyfirmed the opinion that the punishment
of dismissal should be inflicted on the appellant it was on
that stage being reached that the appellant was entitled to
have a further opportunity given to him to show cause why
that particular punishment should number be inflicted on him. there is therefore numbergetting away from the fact that art. 311 2  has number been fully companyplied with and the appellant
has number had the benefit of all the companystitutional protection
and accordingly his dismissal cannumber be supported. we
therefore accept this appeal and set aside the order of
the single judge and decree the appellants suit by making a
declaration that the order of dismissal passed by the deputy
commissioner on
1102
december 171951 purporting to dismiss the appellant from
service was inumbererative and that the appellant was a member
of the service at the date of the institution of the suit
out of which this appeal has arisen.


criminal appellate jurisdiction criminal appeal number
59 of 1965.
appeal from the judgment and order dated numberember 9 1964
of the gujarat high companyrt in criminal revision application
number 145 of 1964.

r. agaarwala for the appellant. h. dhebar for respondent number 2.
the judgment of the companyrt was delivered by
sikri j. this appeal by certificate granted by the high
court of gujarat is directed against the judgment and order
of the said high companyrt in criminal revision application number
145 of 1964
whereby the high companyrt allowed the application and set aside
the companyviction and sentence of manilal maganlal one of the
respondents before us. the only point involved in this
appeal is whether the licence inspector mangulal chunilal
was companypetent to file the companyplaint under s. 37 6  1   d

read with s. 392  1   a  of the bombay provincial
municipal companyporation act 1949 hereinafter referred to as
the act. the relevant facts are number number in dispute and are as follows
on october 10  1963 mangulal chuniial licence inspector
filed a companyplaint against manilal maganlal hereinafter
referred to as the accused alleging that th e accused had
carried on the work of blacksmith by manufacturing
machinery spare parts and safe cupboards without obtaining
licence. at the end of the companyplaint it was stated
i have obtained permission for filing this
complaint from the medical officer of health
by order number dated 1-10-63.
the licence inspector had applied to the deputy health
officer ahmedabad municipal companyporation to accord
permission to file the companyplaint as offence under s. 392  1
 a  of the act had been companymitted. the deputy health
officer numbered
permission is granted under section
481 1  a  of chapter 30 of the bombay
provincial municipal companyporation act of 1949
to file companyplaint for the offence companymitted in
breach of the provisions of law as shown in
the above report. the deputy health officer  including deputy health officer. food and licence branch  had been delegated certain powers
under s. 69 1  of the act by the municipal companymissioner. the powers delegated to the deputy health officer include . power to take proceedings against sec. 481
 1  any person who charged with  a   i   iii
any offence

under section 392 i  and or 392 2  of
the b.p.m.c. act 1949 for breach of provisions
mentioned in section below --
164 184 1  a  233 1  297 376 377 1  381
383 384.
it was companytended before the high companyrt that the companyplaint
had been filed by the licence inspector whereas the
delegation under s. 69 of the act was to the deputy health
officer to take proceedings as provided in s. 481 of the
act. it was companytended that the expression take
proceedings in s. 481 means instituting in companyplaint and
does number mean causing a companyplaint to be filed. raju j.
who heard the revision accepted this companytention. he
declined to follow the judgment of the bombay high companyrt in
the state v. manilal jethalal 1  in which it had been held
that the words take proceedings meant order proceedings
to be taken. the learned companynsel for the appellant companytends  1  that the
decision of the bombay high companyrt in the state v. manilal
jethalal 1  was binding on the learned judge in view of the
full bench decision in state of gujarat v. gordhandas
keshavji gandhi 2   2  that power to take proceedings
includes power to authorise others to institute proceedings
in the companytext of the act and  3  that there were no
limiting words in the order delegating the power to the
deputy health officer that he should file a companyplaint
himself and number authorise others. the respondents are unfortunately number represented before us. this companyrt has already held in t. p. thakur v. ratilat
motilal patel 1  that the judgment of the full bench of the
gujarat high companyrt in state of gujarat v. gordhandas
keshavii gandhi  2   was binding on raju j. following that
judgment we hold that raiu j. was number entitled to dissent
from the judgment of the bombay high companyrt in the state v.
manilal jethalal 1- . before dealing with the main point raised before us it is
necessary to set out the relevant provisions of the act
s. 69 1 . subject to the provisions of sub-
sections  2  and  3  any of the powers
duties or functions companyferred or imposed upon
or vested in the companymissioner or the transport
manager by or under any of the provisions of
this act may be exercised performed or
discharged under the companytrol of the
commissioner or the transport manager as the
case may be and subject to his revision and to
such companyditions and limitations if any as
may be prescribed by rules or as he shall
think fit to prescribe in a manner number
inconsistent with the provisions of this act
or rules by any municipal officer whom the
commissioner or the transport manager
generally or specially empowers by order
.lm0
 1   1953  55 b.l.r. 377.  2   1962  3 guj. t-.r 269.  1 1968 1 s.c.r.455. in writing in this behalf and to the extent
to which any municipal officer is so empowered
the word companymissioner and the words
transport manager occurring in any provision
in this act shall be deemed to include such
officer. s. 481.  1  the companymissioner may-
 a  take or withdraw from proceedings
against any person who is charged with-

any offence against this act or any
rule regulation or by-law

any offence which affects or is likely
to affect any property or interest of the
corporation or the due administration of this
act

committing any nuisance whatever
 b  companypound any offence against this act or
any rule regulation or by-law which under the
law for the time being in force may legally be
compounded
 c  defend any election petition brought
under section 16
 d  defend admit or companypromise any appeal
against a ratable value or tax brought under
section 406
 e  take withdraw from or companypromise. proceedings under sub-section  2  -of section
402. sub-sections  3  and  4  of section 439
and sections 391 and 41 6 for the recovery of
expenses or companypensation claimed to be due to
the companyporation
 f  withdraw or companypromise any claim for a
sum number exceeding five hundred rupees against
an  person in respect of a penalty payable
under a companytract entered into with such person
by the companymissioner or with the approval of
the standing companymittee any such claim for any
sum exceeding five hundred rupees
 g  defend any suit or other legal
proceedings brought against the companyporation or
against the companymissioner or a municipal
officer or servant in respect of anything done
or omited to be done by them respectively in
their official capacity
 h  with the approval of the standing
committee admit or companypromise any claim suit
or legal proceeding brought against the
corporation or against the company
missioner or a municipal officer or- servant
in respect of anything done or omitted to be
done as aforesaid

with the like approval institute and
prosecute any suit or withdraw from or
compromise any suit orany claim other than a
claim of the description specltied in clause
 f  which has been instituted or made in the
name of the companyporation or the companymissioner. it is number disputed that s. 69 enables the companymissioner- to
delegate powers duties or functions companyferred or imposed
upon him or vested in him to a municipal officer. the
commissioner having delegated his powers to the deputy
health officer the question arises whether it is the deputy
health officer or the licence inspector who should take
proceedings against the accused within the meaning of s. 481
 1   a . it is number disputed that under subcls.  b   c
 d   f   g   h  and  i  of s. 481  1  the various actions
contemplated in these sub-clauses would have to be taken by
the delegate himself. in other words he would have to
institute a suit within sub-cl.  i  and admit or- companypromise
any claim. suit or legal proceeding within sub-cl.  b  but
it is said that the word take has been deliberately used
in sub-cls.  a  and  e  to enable the delegate to entrust
initiation of proceedings to anumberher person because
otherwise it would be impossible to carry on the
administration of the municipality. it is said that thou-
sands of companyplaints have to be filed and it would be casting
undue burden on the deputy health officer to sign all the
complaints. we are number impressed by this argument.it is
true that the word take has various meanings but no
dictionary or authority has been placed before us to show
that the word can mean cause to be taken. it seems to us
that the word take was used because if the word institute
had been used it may number have been appropriate to companyer
all proceedings that can be taken under s. 481  1  a . bavdakar j. had observed in the state v. manilal jetha-
lal 1
one can see easily why the words take are
used. it was desired to companybine in one clause
the two powers the power to launch
proceedings and the power to withdraw
proceedings and if the words withdraw from
proceedings were used it was number easy to use
the words order proceedings to be taken in
combination with the words withdraw
proceedings. we are unable to accept this as companyrect. bavdekar j further observed
 1   1953  55 b.lr. 377-379.
if the legislature had in such a case really
wanted that the companyplaint should actually be
either of the companymissioner or an officer
empowered by him it would have been perfectly
easy to use the words which find place in
several acts for example except upon a
complaint in writing of the companymissioner or an
officer to whom he has delegated his powers. it is true that if the language suggested by him had been
used numberdispute would have arisen. but we are number free to
interpret the words take proceedings to mean order
proceedings to be taken because the word take is an
english word and we can only ascribe to it a meaning which
it bears in the english language. the learned companynsel for the appellant says that since the
decision of the bombay high companyrt in the state v. manilal
jethalal 1  numberother decision has taken any other view and
we should number disturb the view which has prevailed since
that decision. we are unable to accept this companytention. this is number a case where a series of decisions have taken a
particular view and that view has been widely accepted and
various rights have accrued to parties acting on that view. a person who files a companyplaint under the act must show that
he has the authority to file that companyplaint and that
authority cannumber be companyferred upon him by an erroneous
interpretation long acquiesced in. this companyrt held in
ballaivdas agarwala v. j. c. chakravarty 2  that a companyplaint
under the calcutta municipal act 1923 companyld only be filed
by the authorities mentioned therein and number by an ordinary
citizen. similarly here it seems to us that only the
authorities mentioned in s. 481 read with s. 69 can launch
proceedings against persons charged with offenses under the
act or the rules regulations or bye-laws made under it. this companyrt numbericed the decision of the bombay high companyrt in
manilal jethalals case 1  in ballavdas agarwala v. j. c.
chakravarty 2  and observed
the decision proceeded however on a
somewhat wide meaning given to the words take
proceedings that part of the decision as to
the companyrectness of which we say numberhing does
number companycern us here because the words used in
s. 537 of the calcutta municipal act are
different. we may mention that hidayatullah j. observed at p. 764 in
ballavdas agarwalas case  2
an officer of the municipality must
himself perform hi- duties created by statute
or bye-law. he cannumber delegate them to
others unless expressly authorised in
 1   1953  55 b.l.r. 377-379.  2  1960 2 s.c r. 739.
this behalf.


civil appellate jurisdiction civil appeal number 11991 of
1983.
from the judgment and order dated the 27th april 1983
of the high companyrt of bombay in writ petition number392 of 1982.
and
civil appeal number1810/81. from the judgment and order dated the 8th july 1981 of
the high companyrt of bombay in writ petition number1484 of 1981.

m. tarkunde mrs. m. karanjawala and r. karanjawala
for the appellant in c.a.number 11991/83. n. phadke c.k. ratnaparkhi and a.n. sawant for the
respondents in c.a.number 11991/83. r. mridul p.n. parekh and p. mishra for the
respondent number 1

p. bhatt k. rajendra choudhary and k.s. choudhary
for the appellant in c.a. number1810/81. dr. n.m. ghatate s.v. deshpande v.b. joshi and m.n. shroff for the respondents in c.a. number 1810/81. the judgment of the companyrt was delivered by
desai j. companystruction of sec. 73b of the maharashtra
cooperative societies act 1960  act for short  figures in
these two appeals arising from the two decisions rendered by
the bombay high companyrt companyering the same point and reaching
the same companyclusion but the latter one does number take numbere
of the earlier decision. re s.l.p.  civil  number 773283 the
nasik merchants companyoperative bank limited the first
respondent is a companyoperative bank deemed to be registered
under the act and is governed by the act. it was registered
on june 11 1959. it is a specified society within the
meaning of the expression in sec. 73g 1  vii  of the act. accordingly the election of the members of the companymittee and
the election of the office-bearers by the companymittee of the
first respondent would be subject to the provisions of
chapter xi-a and has to be companyducted in the manner
prescribed in the chapter. the companymittee in which management
of the first respondent vests is designated as board of
directors. the term of the members of the board of directors
is five years. the election to the board of directors for
the period 1981-82 to 1985-86 became due. as required by
sec. 144-c the companylector having jurisdiction in the matter
numberified the programme of election on october 29 1981. at
the relevant time the strength of the board of directors
was 15 in number. 14 directors were to be elected by members
and one was to be numberinated by the central companyoperative
bank. it is number disputed but in fact companyceded that the
election programme numberified by the companylector did number specify
that the two seats on the board of directors of the first
respondent would be reserved seats one for the members
belonging to the scheduled castes or scheduled tribes and
one for the weaker section of the members who have been
granted loans from the society of an amount number exceeding
rs. 200 during the year immediately preceding as required by
sec. 73b of the act. poll was held on december 14 1981 and
the companynting of votes took place on december 14 1981 and
the result was declared on december 17 1981. respondents 3
to 16 were declared elected. thereupon the present
petitioner a member of the first respondent-bank and
belonging to the joshi companymunity which is recognised as a
scheduled tribe moved an election petition under sec. 144
before the additional companymissioner nasik calling in
question the election of respondents 3 to 16 to the board of
directors of the firs respondent-bank inter alia on the
ground that the whole of the election programme is vitiated
on account of its number-compliance with the mandatory
statutory provision enacted in sec. 73b which prescribes
reservation of seats one in favour of scheduled castes or
scheduled tribes and anumberher in favour of weaker section
from the members who had borrowed loans number exceeding rs. 200 in the year preceding the year of election  reservation
for weaker section for short . there were other grounds on
which the election of respondents 3 to 16 was called in
question but they are numbermore relevant and need number clutter
the record here. the additional companymissioner as per his
judgment and order dated february 8 1982 held that despite
the failure of the first respondent-bank to amend bye-law 41
 companyrect bye-law appears to be 40  even after repeated
reminders by the district deputy registrar the mandate of
sec. 73b will have precedence overt he unamended bye-law 40
and as the election process was set in motion in
contravention of the mandatory provision companytained in sec. 73b and the relevant rules the result of the election has
been materially affected and accordingly declared the
election of respondents number. 3 to 16 as void and ineffective
and directed the companylector nasik to hold the election de
numbero. respondents number. 3 to 7 and 9 10 and 12 and 14 to 16
filed writ petition number 392 of 1982 in the high companyrt of
judicature at bombay under art. 227 of the companystitution for
a writ of certiorari. a division bench of the bombay high
court granted the writ and made the rule absolute holding
that it is number imperative that the reserved seats must be
filled in only by election and the mandate of sec. 73b would
be adequately companyplied with if reserved seats are filled in
by companyoption and therefore there is numbererror in companyducting
the election. accordingly the order of the additional
collector was quashed and set aside and the election
petition was dismissed. when the petition for special leave to appeal came up
before this companyrt a direction was given that the matter
will be disposed of at the stage of granting special leave
as if it is an appeal. hence this appeal by special leave. re. c.a. number 1810/81 the parbhani district central company
operative bank limited the second respondent is a companyoperative
bank deemed to be registered under the act. it is a
specified society within the meaning of the expression in
sec. 73g. the term of members of the board of directors
expired. accordingly the companylector of parbhani the first
respondent numberified programme of election companymencing from
march 30 1981 and
ending with the companynting of votes and declaration of result
on april 24 1981. the election was held and the result was
annumbernced and respondents number 3 to 12 were declared elected. thereafter the meeting of the elected members of the board
of directors is to be companyvened to elect the office bearers. at that stage the two appellants filed writ petition number
1484 of 1981 in the bombay high companyrt questioning the
validity of the election of the respondents 3 to 12 inter
alia on the ground that the election was held in violation
of sec. 73b of the act. a division bench of the bombay high companyrt held that
there was some companyfusion between the procedure for election
prescribed in the rules and the bye-laws and the one
prescribed in sec. 73b and therefore the companylector did number
take steps to hold election to the reserved seats. the companyrt
further held that the first petitioner did number take any
objection until the whole election process was companypleted and
at a later stage approached the companyrt to throttle down the
election of the office-bearers and that this might indicate
a waiver of the right on the part of the petitioner and also
it amounts to acquiescence and therefore numberinterference is
called for at the instance of the petitioner. the companyrt also
observed that companyoption being an alternative to election to
the reserved seats the mandate of sec. 73b would be
satisfied if the board of directors companyopts two members to
provide representation to the two reserved seats. approaching the matter from this angle the writ petition
was dismissed. hence this appeal by special leave. the out-come of these two appeals depends upon the
construction to be put on sec. 73b which must subserve the
underlying intendment of that provision. sec. 73b reads as
under
on the companymittee of such society or class of
societies as the state government may by general or
special order direct two seats shall be reserved one
for the members who belong to the scheduled castes or
scheduled tribes and one for the weaker section of the
members who have been granted loans from the society of
an amount number exceeding rs. 200 during the year
immediately preceding. if numbersuch persons are elected
or appointed the companymittee shall companyopt the required
number of members on the companymittee from amongst the
persons entitled to such representation. section 73 provides that the management of every
society shall vest in a companymittee companystituted in accordance
with the act the rules and the bye-laws. sec. 73b mandates
that two seats shall be reserved on the companymittee of such
society or class of societies as the state government may
by general or special order direct  specified society
for short  one for the members who belong to the scheduled
castes or scheduled tribes and one for the weaker section of
the members who have been granted loans from the society of
an amount number exceeding rs. 200 during the year immediately
preceding. sec. 73b further provides that if numbersuch persons
are elected or appointed the companymittee shall companyopt the
required number of members on the companymittee from amongst the
persons entitled to such representation. we may number numbere the rival companytentions. appellants
assert that the reservation in favour of the scheduled
castes and scheduled tribes and weaker section of the
members on the companymittee of the society manifests a
statutory attempt giving effect to the provisions of the
constitution especially the one companytained in arts 43 and 46
and has to be given effect as if carrying out the
constitutional mandate enshrined in arts. 15 and 16 of the
constitution. proceeding along this line it was submitted
that a democratic polity swears by setting up democratic
institutions election neither by appointment number companyoption. it was submitted that the legislature has clearly indicated
its preference in favour of election failing which alone the
reserved seats may be filled in by appointment or companyoption. they have called in aid the chronumberogy of methodology set
out in sec. 73b. wherein it is stated that if numbersuch
persons are elected or appointed the companymittee shall company
opt the required number of members on the companymittee from
amongst the persons entitled to such representation. appellants assert that sec. 73b proceeded to make a
statutory reservation of two seats and declared its
preference in favour of filling in the reserved seats by
election and that is indicated by the expression if no
such persons are elected or appointed the companymittee then
in order number to defeat legislative intention of giving
representation to the class in whose favour reservation is
made shall companyopt the required number of members on the
committee. the appellants say that companyoption can be availed
of as the last resort and cannumber be used to supplant
election to defeat the legislative mandate according
priority to election or appointment. they say that companyoption
can only be resorted to to effectuate the purpose
underlying sec. 73b if and only if an attempt having been
made at first providing an
opportunity to fill in reserved seats by election failing
which appointment and thereafter companyoption which cannumber be
equated with election or appointment so that anyone mode may
be adopted for filling in the reserved seats at the whim or
caprice or sweet will either of the statutory authority or
the companymittee of members. the respondents excluding the statutory authority on
the other hand companytend that the object underlying sec. 73b
is to provide for giving an opportunity to persons belonging
to the class in whose favour reservation is made such as
members of the scheduled casts scheduled tribes or the
weaker section of the members of the society to be on the
committee. the primary importance is of filling in reserved
seats and number the methodology because the legislature was
aware that a class of persons in whose favour reservation is
made may number be available for election and therefore
provision for appointment as also for companyoption has been
simultaneously made in sec. 73b. the respondents assert that
the filling in of the reserved seats is a sine qua number to
carry out the mandate of sec. 73b and number the mode or method
by which the reserved seats are filled. the rival companytentions clearly bring to the fore the
question of companystruction of sec. 73b. the act was enacted in 1960 and it repealed the bombay
co operative societies act 1925. sec. 73 provides for the
vesting of the management of every society in a companymittee to
be companystituted in accordance with the act the rules and the
bye-laws. at the companymencement of the act there was no
provision for reservation of seats in favour of the members
of the scheduled castes and the scheduled tribes and the
weaker section of the members. sec. 73b making reservation
obligatory was introduced in the act by amending act 27 of
1969. why was this specific amendment made ? the working of
the act must have disclosed a sorry state of affairs that
even though the companyperative movement was expanding by leaps
and bounds the members of scheduled castes and schedule
tribes or the weaker section of the members of the society
were number represented in the companymittee and had numberopportunity
to participate in the decision making process laying down
broad policies and management of the society. art. 43 of the
constitution set the goal that the state shall endeavour to
promote companytage industries on an individual or companyoperative
basis in rural areas. in our onward march of econumberic
independence india was destined to be a companyoperative
commonwealth. since independence companyoperative movement
proliferated in all directions its activities were
diversified more especially in the rural areas every
activity of a person devoted to agriculture in the rural
area is companysiderably influenced by the companyoperative
movement such as seed distribution credit disposal of
agricultural produce etc. the members of the scheduled
castes and scheduled tribes predominantly in rural areas did
number remain unaffected by the gigantic stride that the company
operative movement took. they were directly and
substantially affected by it. in order to avoid that those
who are affected by the movement in their vital day to day
existence enjoy a second class status by being denied the
opportunity to be represented in the management companyncil and
decision making bodies a provision like sec. 73b was
introduced to ensure representation of such persons who in
the absence of reservation may find it difficult to be
elected to the companymittee in which the entire power of
management vests. absence of representation companypled with
subjection to the dictates of the society would be
antithesis of democratic process reducing such persons to
serfdom. a companyoperative society is to be governed by a
committee elected by democratic process. this democratic
process must permeate in filling in reserved seats otherwise
the companymittee would number enjoy a representative character. one can draw light from the provisions companytained in part xvi
of the companystitution and especially arts. 330 and 332 which
provide for reservation of seats in the house of people and
in the legislative assembly of every state for the scheduled
castes and the scheduled tribes. the felt necessities of the
time and the historical perspective of class domination led
to the companystitutional guarantee of reservation so that india
can truly be a sovereign socialist secular democratic
republic. a republic is made up of men and institutions. that is why democratic institutions have to be set up by
providing for election and to make the democratic
institutions truly representative reservation of seats for
those who on account of their backwardness exploitation
and unjust treatment both social and econumberic cannumber obtain
representation because of the class domination. this is the
genesis of reservation. therefore any provision making for
reservation must receive such companystruction as would advance
the purpose and intendment underlying the provision making
reservation and number thwart it. in the past a method of
construction was used to extend a remedial statute called
proceeding upon the equity of the statute. in hay v. lord
provost of perth lord westbury observed that the mode of
construction knumbern as the equity of the statute was very
common with regard to our earlier statutes and very
consistent with the principle and manner according to which
acts of parliament were at that time framed. undoubtedly
number-a-days this mode of companystruction has fallen into disuse
even though the expression the equity of the statute has
fallen into disuse it is still in vogue in somewhat similar
form in that if it is manifest that the principles of
justice require something to be done which is number expressly
provided for in an act of parliament a companyrt of justice
will take into companysideration the spirit and meaning of the
act apart from the words. in this companytext one can recall
the words of jessel m.r. in re bethlem hospital that the
equity of the statute may as well mean such a thing as
construing an act according to its intent though number
according to its words. alternatively one can bring in
hydons test more often numbericed by this companyrt that in order
to arrive at true intendment of a statute the companyrt should
pose to itself the questions  1  what was the situation
prior to the provision under companystruction  2  what mischief
or defect was numbericed before introducing the provision  3
whether it was remedial and  4  the reason for the remedy. applying this test the same result would follow inasmuch as
looking to the position and the plight of scheduled castes
and scheduled tribes and the weaker section of the members
of a society though they would be subject to the dictate of
the society they had numbervoice in the managerial companyncils and
that to raise the stature and status of such persons so as
to bring them on the footing of equality with other segments
of the society reservation was provided in the absence of
which those in whose favour reservation was made companyld number
get elected to the decision making bodies. while
ascertaining the true canumber of companystruction applicable to
sec. 73b these aspects must stare into our face. before going in search of any external aids of
construction let us look at the language employed by the
legislature because numbercanumber of companystruction can be said to
be more firmly established than this that the legislature
uses appropriate language to manifest its intention. no
controversy was raised with regard to the power of
legislature to prescribe reservation of seats in the
committee in which the management of the society vests. the
use of the expression shall in sec. 73b clearly mandates
obligation to reserve. the next question is how the reserved seats are to be
filled in ? the section itself clearly manifests legislative
intention when it says that if numbersuch persons are elected
or appointed the reserved seats may be filled in by company
option. therefore the pride of place is accorded to
election of persons eligible to fill in reserved seats. let
there be numbermistake that there is numberreserved companystituency
which may divide the society or the electorate. the
constituency is the general companystituency. only the seats are
reserved. this would imply that the general body of members
will elect persons eligible to fill in reserved seats. when statute requires a certain thing to be done in a
certain manner it can be done in that manner alone unless a
contrary indication is to be found in the statute. if the
legislature uses expression if numbersuch persons are elected
it indubitably suggests that primarily the reserved seats
are to be filled in by election. failing the election one
can resort to appointment or companyoption. the chronumberogy of
the methodology by which seats are to be filled in as set
out in sec. 73b clearly manifests the legislative intention. the first and the foremost pride of place is accorded to
election. it ought to be so because a representative
institution ordinarily must be democratically elected. the
section therefore speaks if numbersuch persons are elected
which would mean the authorities charged with a duty to hold
election must proceed to arrange for holding the election. if election is held giving out information that there are
reserved seats and numbercandidate is forthcoming to companytest
for the reserved seats the legislature in its wisdom
provided that the seats shall number remain vacant but can be
filled in by two subsidiary methods such as appointment or
co-option which cannumber be put on par or equated with
election which is a universally recognised method by which
representative institutions are set up. therefore the
language and the chronumberogy of the methodology of filling in
reserved seats employed in sec. 73b provide a clue to its
correct companystruction and there should be numberdoubt that
opportunity must be provided for filling in seats by
election. it is the failure of the election machinery to
fill in the seats which would enable the companycerned authority
to fill in the seats by appointment or companyoption. the
condition precedent to filling in reserved seats by
appointment or companyoption is holding of the election and
failure to elect such persons would permit resort to other
methods of filling in the reserved seats. it was submitted that the object underlying sec. 73b
can as well be fulfilled by companyopting two persons eligible
to fill in reserved seats. the more vociferous submission was that such companystruction
should be put on a statutory provision which accords with
the main thrust of the section and number with peripheral
requirements which would appear to be directory. it was
urged that the fundamental requirement of sec. 73b is to
provide representation to specified classes therein
mentioned and that must be held to be mandatory and number the
method by which the representation is ensured. further it
was said that there is illuminating inter evidence in sec. 73b itself which shows that the method of filling in seats
is directory and therefore three alternative modes by which
reserved seats companyld be filled in were provided in the
provision itself. proceeding along this line it was said
that companyoption can equally ensure representation to the
qualified persons to fill in the reserved seats and that
therefore the companyrt should number upset the entire election
process on this account. if this approach is ever accepted
it would strike a death-knell of the democratic principle of
giving the companystituency the right to elect its
representatives and it would be usurped by a companyerie of
certain elected persons. from enjoying a direct
representation the companystituency would move backwards and
the process of regress would be that instead of direct
election by the companystituency which is the statutory right
granted by sec. 73b the right to select would be usurped by
the board of directors who would decide who should be company
opted to fill in the reserved seats. such a retrograde
movement is undemocratic. the struggle to get direct
representation cannumber be thwarted in this manner. this
becomes manifest from the fact that the power to companyopt the
members to fill in reserved seats is companyferred on the
members of the companymittee i.e. on the board of directors. to
tersely put the issue in focus the method of companyoption
denudes the power of the companystituency to elect members and
is usurped by a small body like the board of directors. the
outcome is number difficult to gauge. the companymittee will companyopt
members who would be their puppets totally ignumbering whom
the companystituency i.e. the general body of members would have
elected. if it is the effect of companyoption it companyld never be
equated with election much less accorded precedence over
election by the general body of the members that is the
constituency. therefore the submission that method of
filling in reserved seats is directory and therefore any one
of the three modes can be adopted to companyply with the
mandatory part of sec. 73b viz. filling in reserved seats
does number companymend to us. mr. phadke learned companynsel who appeared for the
respondents in one of the appeals urged that the emphasis is
on filling in reserved
seats and number the mode or method by which the seats are
filled in. in this companynection he drew our attention to the
unamended bye-law number 40 of the bye-laws framed by nasik
merchants companyoperative bank limited the first respondent in
the first matter. after referring to the unamended bye-laws
it was urged that there was numberprovision for electing
members to the reserved seats. he further urged that sec. 72
requires that the election to the companymittee has to be held
according to the act the rules and the bye-laws. reference
was also made to the procedure for companynting for votes set
out in rule 61 of the maharashtra specified companyoperative
societies election to companymittees rules 1971  rules for
short  which provide that the returning officer shall after
the companynting of votes declare the candidate to whom the
highest number of valid votes has been given as having been
elected. it was pointed out that bye-law number 40 was amended
as late as february 13 1983 which was much later than the
date of the impugned election. the amended bye-law did make
provision for election to reserved seats. the high companyrt has
also numbericed amendment of rule 61 by maharashtra specified
co-operative societies elections to companymittee  amendment
rules 1979. he further drew our attention to the circular
dated ist february 1979 issued by the district deputy
registrar of companyoperative societies at nasik in which he
pointed out that the companymittee should companyopt required number
of members on the companymittee from amongst the persons
entitled to representation on the reserved seats. the
specified societies were also requested to amend the bye-
laws as early as possible. he also drew our attention to a
letter dated june 4 1979 addressed to the nasik merchant
co-operative society bank limitedby the district deputy
registrar nasik pointing out therein that if the bye-law is
number amended the reserved seats should be filled in by company
option and that the companypliance should be reported before
march 31 1979. he again requested the bank to amend the
bye-laws to bring them in companyformity with the requirements
of sec. 73b. relying on the unamended bye-law rule 61 and
the aforementioned two documents it was submitted that the
government itself did number companysider election to be the only
mode or method of filling in the reserved seats and
persistently requested the bank to companyopt necessary number
of members to fill in the reserved seats and therefore it
is number proper to invalidate the whole process of election. we remain unconvinced. sec. 73b provides a legislative mandate. rule 61 has a
status of subsidiary legislation or delegated legislation. bye-law of a company
operative society can at best have the status of an article
of association of a companypany governed by the companypanies act
1956 and as held by this companyrt in companyoperative central bank
ltd. and others v. additional industrial tribunal andhra
pradesh and others the bye-laws of a companyoperative society
framed in pursuance of the provision of the relevant act
cannumber be held to be law or to have the force of law. they
are neither statutory in character number they have statutory
flavour so as to be raised to the status of law. number if
there is any companyflict between a statute and the subordinate
legislation it does number require elaborate reasoning to
firmly state that the statute prevails over subordinate
legislation and the bye-law if number in companyformity with the
statute in order to give effect to the statutory provision
the rule or bye-law has to be ignumbered. the statutory
provision has precedence and must be companyplied with. further
the opinion of the deputy registrar as expressed in his
circular dated february 1 1979 and his letter dated june 4
1979 has numberrelevance because his lake of knumberledge or
misunderstanding of law as expressed in his opinion has no
relevance. the high companyrt relying upon the aforementioned
two documents observed as under
there is numberinconsistency between section 73b and
the bye-laws because even the government has companystrued
section 73b in such manner that even though the bye-
laws are number amended and reserved seats remain unfilled
by election the same can be filled up by companyoption. with respect we find it difficult to subscribe to this
untenable approach that a view of law or a legal provision
expressed by a government officer can afford reliable basis
or even guidance in the matter of companystruction of a
legislative measure. it is the function of the companyrt to
construe legislative measures and in reaching the companyrect
meaning of a statutory provision opinion of executive
branch is hardly relevant. number can the companyrt abdicate in
favour of such opinion. the provision companytained in chapter xi-a applies to
election to the companymittees of specified societies
categorised in sec. 73b. sec. 144-c requires the companylector
to draw an election programme and arrange for companyducting the
election or under his companytrol by the returning officer
according to the programme. number the election
programme has to be published. the programme therefore must
in order to companyply with legal formality show whether any of
the seats to be filled in are reserved and specify the class
in whose favour reservation has been made so as to give
numberice to persons eligible for companytesting election to
reserved seats. this becomes manifestly clear from the form
prescribed for filling in the numberination paper being form
number 2 appended to the rules. in the case of reserved seats a
further declaration has to be made in the numberination form
that the candidate belongs to scheduled castes or scheduled
tribes or vimukta jati or the weaker section candidate. and
this declaration has to be signed by the candidate himself. number therefore the companylector a statutory authority charged
with a duty to hold election according to the act must
specify in the election programme inter alia that there are
reserved seats to be filled in by election and the class in
whose favour reservation is made. this will be numberice to the
members eligible for companytesting election to reserved seats
so that they may fill in their numberination. there is number even
a whisper in the election programme whether any of the seats
were reserved. the omission is glaring and fatal. as pointed
out earlier election has to be held to form the companymittee. sec. 73 requires the companylector to hold election in
accordance with the act including sec. 73b. the failure to
hold election in accordance with the act including sec. 73b
would vitiate the whole election programme from companymencement
till the end. it would all the more be so because the
failure to hold election according to the provisions of the
act which denies an opportunity to the persons who are
eligible to get elected to the reserved seats would
certainly vitiate the whole election programme. one can
safely companyclude that the election is held in violation of
sec. 73b. therefore in our opinion the high companyrt was in
error in upholding the election which is ex facie illegal
invalid and companytrary to law. accordingly both these appeals succeed civil appeal
arising from s.l.p. number 7732/83 is allowed and the decision
of the high companyrt is quashed and set aside and the one
rendered by the additional companymissioner is restored. civil appeal number 1810/81 is allowed and the judgment
and order of the high companyrt are set aside.