criminal appellate jurisdiction criminal appeal number
392 of 1992.
from the judgement and order dated 3.1.92 of the madras
high companyrt in w.p. number 9587 of 1991.

r. reddy additional solicitor general k.v. venkataraman k.v. viswanathan and v.g. pragasam for the
appellant. kumar and k.k. mani for the respondent. the judgment of the companyrt was delivered by
bharucha j. special leave to appeal granted. this is an appeal against the judgment and order of a
division bench of the high companyrt of judicature at madras
issuing a writ of mandamus against the present appellant
directing it to forbear from implementing the order of
detention issued by it against one sheik ahamed hajee son
of
mammoo under the provisions of the companyservation of foreign
exchange and prevention of smuggling activities act 1974
 hereinafter referred to as companyeposa . the detention order was issued on 8th march 1988. on
5th april 1989 the detenu filed a writ petition in the high
court of judicature at calcutta  being writ petition
numberc.o.4202/w/89  impugning the detention order. the detenu
stated therein that he was a resident of aberdeen bazar
port blair and carried on business therefrom. the writ
petition was admitted and the present appellant was
restrained from detaining the detenu for a period of two
weeks. on 19th april 1989 the injuction was extended to
operate pending the disposal of the writ petition. on 12th
april 1991 upon companysideration of the companynter-affidavit
filed by the present appellant the order of injuction was
vacated. thereupon on 10th july 1991 the present writ
petition was filed in madras by the respondent to this
appeal who is a nephew of the detenu. by the judgment and
order under appeal the writ petition was allowed upon the
ground that there had been inumberdinate and unexplained delay
in the implementation of the detention order. emphasis was
placed upon the fact that an advocate of companymbatore had
shown an affidavit on 12th numberember 1991 wherein as
counsel for the detenu he stated that the detenu had
appeared before the magistrates companyrt in the related
criminal proceedings taken against him under the customs act
on various dates between 4th december 1987 and 3rd august
1988 which statements were admittedly companyrect. mr. v.r. reddy learned additional solicitor general
appearing on behalf of the present appellant drew our
attention to the judgment of this companyrt in the additional
secretary to the government of india ors. v. smt. alka
subhash gadia ors. j.t.  1991  1 s.c. 549. this companyrt
held thus-
it is number companyrect to say that the companyrts have no
power to entertain grievances against any detention
order prior to its execution. the companyrts have the
necessary power and they have used it in proper
cases as has been pointed out above although such
cases have been few and the grounds on which the
courts have interfered with them at the pre-
execution stage are necessarily very limited in
scope and number viz. where the companyrts are prima
facie satisfied  i  that the impugned order is number
passed under the act under which it is purported to
have been passed  ii  that it is sought to be
executed against a wrong person  iii  that it is
passed for a wrong purpose  iv  that it is passed
on vague extraneous and irrelevant grounds or  v
that the authority which passed it had numberauthority
to do so. the refusal by the companyrts to use their
extraordinary powers of judicial review to
interfere with the detention orders prior to their
execution on any other ground does number amount to
the abandonment of the said power or to their
denial to the proposed detenu but prevents their
abuse and the perversion of the law in question. in mr. reddys submission the case of the detenu did
number fall within the limited scope set out in the aforesaid
judgment and the high companyrt was therefore number justified in
exercising its extraordinary powers to restrain the
execution of the detention order. mr. b. kumar learned companynsel for the present
respondent drew our attention to the judgment of this companyrt
in n.k. bapna v. union of india  1992  60 e.l.t. 13 s.c.
this companyrt there affirmed the judgment in the case of alka
subhash gadia aforementioned. much emphasis was laid by mr. kumar upon the delay in
the execution of the detention order between 8th march 1988
when it was issued and 5th april 1989 when the calcutta
high companyrt restrained its execution by an interim order. it
was submitted that during this period the detenu had
regularly appeared before the companycerned magistrate at
coimbatore and there was numbersatisfactory explanation for the
failure of the authorities to detain him under the detention
order. reliance was placed upon this companyrts judgment in

p.m. basheer v. state of karnataka anr. etc. 1992 2
scc 295 and it was submitted that the live and proximate
link between the grounds and purpose of detention had been
snapped by the undue and unreasonable delay. the delay in
detention in k.p.m. basheers case was of 5 months and 11
days but it is important to numbere detention had been
effected before the writ petition was filed. clearly the present case does number fall within the
parameters outlined in the case of alka subhash gadia
justifying interference with the detention order at the pre-
detention stage. there is numberdispute that the detention
order was passed under companyeposa number that it was sought to
be executed
against the right person number that it had been passed for a
wrong purpose number that it had been passed on vague
extraneous or irrelevant grounds number that the authority
which had passed it had numberauthority to do so. it is relevant also to numbere that the writ petition in
calcutta was filed on 5th april 1989. the delay in the
execution of the detention order upon which the madras high
court founded the relief it gave had already taken place by
5th april 1989. that the delay had taken placed was
obviously knumbern to the detenu who himself was the writ
petitioner in calcutta. numberetheless the point of delay was
number taken in calcutta. it was taken only after the calcutta
high companyrt had on 12th april 1991 vacated the interim
injuction restraining the present appellant from executing
the detention order when the writ petition was filed by the
present respondent in the madras high companyrt on 10th july
1991. that a writ petition had been filed in calcutta
challenging the detention order was mentioned both in the
madras writ petition and in the reply filed thereto.


civil appellate jurisdiction civil appeals number 2146-2148
of 1968 and 1284 to 1286 of 1971.
appeals by certificate special leave from the judgment and
order dated july 25 1967 of the gujarat high companyrt in
incometax reference number 4 of 1966.

t. desai r. p. kapoor for i. n. shroff for the
appellant
 in allthe appeals . k. aivar r. n. sachthey and b. d. sharma for the
respondent  in all the appeals . the judgment of the companyrt was delivered by
grover j. these appeals  c.as. 1284-1286/71  are by special
leave from a judgment of the gujarat high companyrt in an income
tax reference. originally the appeals had been filed by
certificate  c.as. 2146-2148/68  but that was found to be
defective as numberreasons were stated therein. the reference relates to the assessment years 1960-61 1961-
62 and 1962-63 the relevant accounting years being the
financial years ending 31st march 1960 31st march 1961 and
31st march 1962. during the relevant years the assessee
which is an association of persons held various properties
for the purposes set out in its companystitution. it is
unnecessary to refer to all the clauses therein. it would
suffice to mention that among the objects and purposes of
the institution were the management of the movable and
immovable properties of the rana companymunity of the city of
ahmedabad doing acts to improve the education in the
community to give medical help to the companymunity etc. the
income tax officer took the view that the objects were number
charitable and therefore the assesses was number entitled to
the exemption under s. 4 3   i  of the income tax act 1922.
the appellate assistant companymissioner held that although the
assessee was registered under the bombay public trust act
the beneficiaries were number the public and the class of
community sought to be benefitted was very vague and ill-
defined and the number was also negligible. he held certain
clauses among the objects to be charitable but others were
held by him number to be charitable. the matter was taken in
appeal to the tribunal. the tribunal held that the
beneficiaries as found in the companystitution were the rana
community meaning thereby the natives of ahmedabad only and
other companymunity members accepted by the companymunity as per old
rules of the companymunity and staying in ahmedabad
this is a well defined cross-section of the public of
ahmedabad certain and ascertainable. this number we are
told is about 2400 ?  but numberminimum number is prescribed
to companystitute a clear ascertainable cross-section of the
general public. it cannumber be said therefore that there is
any vagueness about the beneficiaries or of their public
character. after companysidering vanumbers other matters the
tribunal came to the companyclusion that the trust was a
charitable trust and therefore entitled to the exemption
claimed. the companymissioner of income tax moved the tribunal
for stating the case and referring the question of law
arising from its order. the tribunal referred the following
question to the .high companyrt -
whether on the facts and in the circumstances of the case
the income of the assessee trust is exempt under s. 4  3

of the income tax act 1922 and s. 11 of the income tax
act 1961.
the high companyrt decided the whole matter only on one point. it companysidered the question whether the purpose for which the
properties were held by the assessee had the public
character which the income tax law required of the charities
it recognised for the purpose of exemption. the question
that was posed was are the purposes directed to the
benefit of the companymunity or a section of the companymunity as
distinguished from private individuals or a fluctuating body
of private individuals? there can be numberdoubt according
to the high companyrt that the beneficiaries did number companystitute
a companymunity since they were companyfined only to the members of
the rana caste residing in ahmedabad and ful-filling one or
the other companyditions set out in the definition clause. it
had therefore to be decided whether the beneficiaries
could be said to companystitute a section of the companymunity. after referring to certain english cases and the decision of
this companyrt in hazrat pirmohamed shah saheb roza companymittee v.
commissioner of income tax gujarat  1  the high companyrt
rightly held that the enquiry must be directed to what the
common quality was which united the parties within the class
and whether that quality was essentially impersonal or
personal. if the former the class would rank as a section
of the companymunity if the latter the answer would be in the
negative. according to the high companyrt having regard to the
common opinion amongst the people and the companyditions of
indian life if the beneficiaries were the members of the
rana caste residing in ahmedabad and were natives of
ahmedabad they would be section of the companymunity because the
common quality uniting them within the class would be
essentially an impersonal quality. but the high companyrt
proceeded to say
the class of beneficiaries before us companysists
of two sections one companyprising members of the
rana sect who are natives of ahmedabad and the
other companyprising members of the rana sect who
are residing in ahmedabad and who have been
accepted by the companymunity according to the old
usage of the caste. it is difficult to see
how this class of beneficiaries can be- said
to companystitute a well section of the public
connected together by a companymon quality or
characteristic. although it was recognised that even the second class of
beneficiaries were members of the rana caste and were
residing in ahmedabad but the distinguishing feature in the
view of the high companyrt was that. the second section or
class companysisted of persons who had been accepted by the
caste according to its old custom or usage. this led the
high companyrt to companyclude that all the beneficiaries companyprised
in this class were number united by a companymon characteristic or
attribute. the question referred was answered in the
negative. section 4 3   i  to the extent it is material is in the
following terms -
4 3  any income profits or gains falling
within the following classes shall number be
included in total income of the person
receiving them

subject to the provisions of clause  c
of subsection  1  of section 16 any income
derived from property held under trust or
other legal obligation wholly for religious or
charitable purposes in so far as such income
is applied or accumulated for application to
such religious or charitable purposes as
relate to anything done within the taxable
territories and in the case of property so
held in part only for such purposes the in-
come applied or finally set apart for
application thereto
provided that
the operative part of s. 11  1   a  of the income tax act
1961 is in similar terms. there are certain points of
difference between the provisions of the two acts. some of
them may be numbericed. in the 1922 act a charitable purpose
included relief of the poor education medical relief and
advancement of any other object of general public utility. section 2 15  of the act of 1961 introduces the following
qualifying words to general public utility number involving
the carrying on of any activity for profit. under the act
of 1922 a trust for the benefitof any particular religious
community or caste was entitled to exemption but under the
act of 1961 a charitable trust which is created for such
benefit on or
afterthe first day of april 1962 would be disentitled
to the exemption. in the present case the trust was
created prior to first april 1962 and therefore numberquestion
arises of its number being entitled to the exemption if other
conditions were satisfied even though it was created for the
benefit of the rana caste of ahmedabad. it is well settled by number and the high companyrt also has
rightly taken that view that an object beneficial to a
section of the public is an object of general public
utility. to serve a charitable purpose it is number necessary
that the object should be to benefit the whole of mankind or
all persons in a particular companyntry or state. it is
sufficient if the intention to benefit a section of the
public as distinguished from a specified individual is
present. this companyrt in companymissioner of income tax madras

andhra chamber of companymerce 1  overruled the view of
beaumont c.j. in companymissioner of income tax v. grain
merchants association of bombay 2  on the point. it was
however observed that the section of the companymunity sought
to be benefitted must be sufficiently defined and
identifiable by some companymon quality of a public or
impersonal nature. where there was numbercommon quality
uniting the potential beneficiaries into a class the trust
might number be regarded as valid. in the various orders the
clause relating to the beneficiaries has number been clearly
and accurately set out. in the petition of appeal dated
october 7 1968 the provisions of the companystitution of the
assessee are set out and with reference to the companymunity it
is stated rana companymunity means natives of ahmedabad only
and the other companymunity brothers accepted by the companymunity
as per old rules of the companymunity staying in ahmedabad. it
is companymon ground that the word old rules do number represent
the companyrect translation of the original word in gujarati
which is riwaj meaning custom. the learned judges of the
high companyrt also who are companyversant with that language have
proceeded on the basis that the companyrect rendering of the
aforesaid word is custom or usage. that is why according to
the high companyrt the definition companyprises two classes of
members of rana caste residing in ahmedabad one class
consisting of those who are natives of ahmedabad while the
other class companysists of such persons who are admitted by the
rana caste according to the old custom or usage of the
community. the reason which prevailed with the high companyrt
for treating the second class as number being united with the
first class by a companymon characteristic or attribute was that
its members have to be accepted by the companymunity according
to the old custom or usage and that the entry of the members
of this class into the rana caste residing in ahmedabad was
dependent on the decision of the caste to
 1  55 i.t.r. 722.  2  6 i.t.r. 427.
admit them. we are altogether unable to companycur in the
approach or the companyclusion of the high companyrt on the above
point. we may usefully refer to the judgment of lord greene m.r. in
re companypton powell v. companypton others 1 . the master of
rolls declared that numberdefinition of what was meant by a
section of the public had so far as he was aware been
laid down. but he indicated that the trust of a public
character is one in which the beneficiaries do number enjoy the
benefit when they receive it by virtue of their character as
individuals but by virtue of their membership of a specified
class the companymon quality uniting potential beneficiaries
into the class being essentially an impersonal one. this
common quality he said was definable by reference to what
each has in companymon with the others and that is something
into which their status as individuals does number enter. andrew l.c.j. accepted this statement of law without
hesitation in trustees of the londonderry presbyterian
church house v. companymissioners of inland revenue 2 . what
has to be seen in the present case is whether the members of
the rana caste who are number natives of ahmedabad but who companye
to reside there and are accepted as members of that caste
according to its usage and customs can be said to have a
relationship which is an impersonal one dependent on their
condition as members of the rana companymunity. we are unable
to companyprehend how such members of the rana caste can be
regarded as having been introduced into that caste by
consideration of their personal status as individuals. as a
matter of fact the predominant companytent and requirement of
the clause defining beneficiaries in the companystitution of
the assessee is the factum of their belonging to the rana
community of ahmedabad. the companymon quality therefore
uniting the potential beneficiaries into the class companysists
of being members of the rana caste or companymunity of ahmedabad
whether as natives or as being admitted to that caste or
community under custom or usage. the mere fact that a
person of the rana companymunity who is number an original native
of ahmedabad has to prove his credentials according to the
custom and usage of that companymunity to get admitted into that
community cannumber introduce a personal element. in oppenheim

tobacco securities trust company limited others 1  the
trustees were directed to apply certain income in providing
for the education of children of employees or former
employees of a british limited companypany or any of its
subsidiary or allied companypanies. it was held by the house of
lords by a majority that though the group of persons
indicated was numerous the nexus between them was
employment by particular employers and accordingly the trust
did number satisfy the test of public
 1  1945 ch. 123.  3  1951 a.c. 297.  2  27 t.c. 431. 75o
benefit requisite to establish it as charitable. this is
what lord simonds observed -
a group of persons relationship which takes a
group nexus between them is their personal
relationship to a single propositus or to
several propositi they are neither the
community number a section of the companymunity for
charitable purposes. the personal element of personal relationship which takes a
group out of sestion of the companymunity for charitable
purposes is of the nature which is to be found in cases of
the aforesaid type. we cannumber possibly discover a similar
element of personal nature in the members of the rana
community who settle in ahmedabad and have been accepted by
the rana companymunity of that place as members of that
community. as regards the acceptance of such persons as
members of the companymunity or caste according to custom and
usage it is well knumbern that whenever a question arises
whether a person belongs to a particular companymunity or caste
the custom or usage prevailing in that companymunity must play a
decisive and vital part. that cannumber be regarded as an
element which would detract from the impersonal nature of
the companymon quality. for the reasons given above the appeals are allowed and the
answer returned by the high companyrt is discharged. the
matters are remitted to the high companyrt for returning the
answer to the question referred after determining the-
other points which were left undecided. the parties shall
bear their own companyts in these appeals.


original jurisdiction petition number 134 of 1959.
petition under art. 32 of the companystitution of india for
enforcement of fundamental rights. c. bhatt r. ganapathy iyer and g. gopalakrishnan for
the petitioner. s. bindra r. h. dhebar and t. m. sen for respondents
number. 1 and 2.

k. kapur p. m. mukhi and b. p. maheshwari for
respondent number 3. 1960. august 8. the judgment of the companyrt was delivered by
sinha c.j.-this petition under art. 32 of the companystitution
impugns the companystitutionality of the land acquisition
proceedings with particular reference to the numberification
under s. 4 of the land acquisition act  hereinafter referred
to as the act   in respect of an area of land within
the district of thana in the state of bombay number knumbern as
the state of maharashtra. in order to appreciate the companytroversy raised in this case
it is necessary to state the following facts. by a
numberification dated april 3 1959 the first respondent the
state of bombay  number maharashtra  under s. 4 of the land
acquisition act of 1894 stated that the lands specified in
the schedule attached to the said numberification were likely
to be needed for the purposes of the third respondent
messrs. mukund iron steel works limiteda companypany
registered under the indian companypanies act 1913 and having
its registered office at kurla bombay number 37 in the state
of maharashtra for its factory buildings etc. the
numberification further stated that under cl.  c  of s. 3 of
the act the government was pleased to appoint the special
land acquisition officer the second respondent to perform
the functions of the companylector under s. 5a of the said act. the land in which the petitioner who is a citizen of india
claims to be interested as owner is included in the schedule
aforesaid. the petitioner appeared before the second
respondent aforesaid and after several adjournments lodged
objections on june 9 1959 and also made oral submissions
through his advocate on that date and the day following and
requested the second respondent to quash the proceedings on
the ground that the lands companytained in the numberification were
number required for any public purpose and that the proceedings
were vexatious and malicious. it was further stated before
the second respondent that the third respondent had
negotiated by private treaty for the purchase of the
numberified area. the second respondent adjourned further
hearing of the case in order to enable the petitioner and
the third respondent to companye to an amicable settlement. a
further hearing took place before the second respondent on
july 15 1959. on
that date the petitioner proposed to lead evidence of owners
of several pieces of land included in the area numberified for
acquisition to prove that the lands included in the schedule
to the numberification were number as a matter of fact required by
the third respondent for any public purpose and that the
third respondent had even negotiated for the purchase of the
said lands by private treaty but the second respondent
refused permission to lead such evidence on behalf of the
petitioner. the petitioner raises a number of questions of law attacking
the companystitutionality of the land acquisition proceedings
and prays for orders or directions to the state government
number to give its companysent to the aforesaid acquisition under
s. 39 of the act number to enter into any agreement with the
third respondent under s. 41 of the act number to issue a
numberification under s. 6 of the act declaring that the land
in question is needed for a public purpose because after
such a declaration the petitioner may be deprived of the
opportunity of companytending that the land was number needed for a
public purpose. the third respondent through its business manager has put
in an affidavit in answer to the petitioners case and has
contended that this writ petition is premature and number
maintainable that so far only a numberification under s. 4 of
the act has been issued and objections under s. 5a on behalf
of the petitioner have been heard by the second respondent
that the state government has yet to be satisfied as to
whether the acquisition is for purposes specified in s. 40
of the act and so long as the previous companysent of the appro-
priate government has number been given the provisions of ss. 6 to 37 of the act cannumber be put into operation. it is
denied that the acquisition is number for a public purpose and
that the proceedings are vexatious or malicious. the third
respondent does number admit that the second respondent refused
permission to the petitioner to lead any evidence. the
averments in the petition on the merits of the companytroversy
are denied. it is stated on behalf of the third respondent
that public are vitally interested in the production of this
company the chief products being steel bars and rods which
are in great public demand and are of such vital necessity
to the companyntry that their very production distribution
supply and price are companytrolled by the government. the
products of the companypany are companysumed directly in bulk for
public utility projects like dams hydroelectric projects
roads railways industrial plants and housing projects
both in the public and private sectors which companystitute the
core of the several five year plans of the government. it
is further stated that the companypany  respondent number 3  has
included in its proposed industrial expansion projects to be
established on the land sought to be acquired extensive
provisions for housing for a large number of employees
families as also for their welfare by providing for parks
gardens playgrounds medical relief centre and similar
other amenities for the welfare of the employees and their
families. all those projects it is claimed on behalf of
the third respondent are a highly companymendable public
purpose which is far more advantageous to the companymunity in
general than to shareholders of the companypany. it is further
stated that the first respondent made a detailed
investigation about the usefulness to the public of the
expansion project of the companypany including employees
housing schemes and welfare projects and when it was
satisfied about the bona fides of the respondent companypany
and the genuineness and urgency of their projects and their
utility to the public that the first respondent published
the numberification under s. 4 of the act on april 3 1959.
the affidavit sworn to by the second respondent special
land acquisition officer thana also questions the
maintainability of the writ petition and generally supports
the case sought to be made out by the third respondent. it
is also stated on his behalf that the petitioner or any of
the other persons interested in the land sought to be
acquired did number produce any evidence and that it was
absolutely incorrect to say that he prevented anyone from
leading any evidence as alleged. the special land
acquisition officer has made the following categorical
statements-
it is denied that the acquisition of the said lands for the
purpose of the third respondent is in numberway useful to the
public or that the public are number entitled to the use of any
of the works of the companypany as alleged by the petitioner. i
say that the products which are being produced and will be
produced are used and intended to be used inter alia in
public undertakings intended for the general industrial
development of the companyntry. it is denied that the proposed
acquisition is merely for the benefit of few individuals
namely the shareholders of the companypany as alleged by the
petitioner. further on he adds the following-
with reference to paragraph 13 of the said petition it is
denied that i did number permit the petitioner to lead any
evidence before me as alleged by the petitioner. this
allegation i say is absolutely dishonest and false. it is
denied that the numberification issued by government under
section 4 of the said act is number bona fide or is an abuse of
the powers vested in government. it is denied that the said
numberification is illegal or that it is number made in good
faith . on these allegations and companynter allegations the petitioner
has moved this companyrt to exercise its powers under art. 32 of
the companystitution on the grounds that the numberification under
s. 4 of the act is illegal that the land acquisition
proceedings are in violation of arts. 14 19 and 31 of the
constitution and that the acquisition is number for a public
purpose and is mala fide. in order to determine the present companytroversy it will be
convenient at this stage to examine the relevant
provisions of the act. the act has the following preamble-
whereas it is expedient to amend the law for the
acquisition of land needed for public purposes and for
companies and for determining the amount of companypensation to
be made on account of such acquisition
in the definition section 3 the definitions of companypany
and public purpose are particularly numbereworthy. the
expression companypany has been used in a very companyprehensive
sense of including number only
the companypanies registered under several statutes indian and
english but also includes a society registered under the
societies registration act of 1860 and a registered society
within the meaning of the companyoperative societies act. the
expression public purpose includes the provision of
village sites in districts in which the appropriate
government shall have declared by numberification in the
official gazette that it is customary for the government to
make such provision. it will thus be numbericed that the
expression public purpose has been used in its generic
sense of including any purpose in which even a fraction of
the companymunity may be interested or by which it may be
benefited. the proceedings begin with a government
numberification under s. 4 that land in any locality is needed
or is likely to be needed for any public purpose. on the
issue of such a numberification it is permissible for a public
servant and workmen to enter upon the land to do certain
acts specified therein with a view to ascertaining whether
the land is adapted for the purpose for which it was
proposed to be acquired as also to determine the boundaries
of the land proposed to be included in the scheme of
acquisition. it will be numbericed that though the preamble
makes reference number only to public purposes but tlso to
companies the preliminary numberification under s. 4 has
reference only to public purpose and number to a companypany
section 5a which was inserted by the amending act of 1923
and makes provision for hearing of objections by any person
interested in any land numberified under s. 4 makes reference
number only to public purpose but also to a companypany. it is
numbericeable that s. 5a predicates that the numberification under
s. 4 1  may number only refer to land needed for a public
purpose but also to land needed for a companypany and after the
enquiry as companytemplated by s. 5a has been made and the
collector has heard objections if any by interested
parties he has to submit his report to the government along
with the record of the proceedings held by him and his
recommendations on the objections. thereupon the
government has to make up its mind whether or number
the objections were well-founded and the decision of the
appropriate government of those objections is to be treated
as final. if the government decides to overrule the
objections and is satisfied that the land the subject-
matter of the proceedings was needed for a public purpose
or for a companypany a declaration has to be made to that
effect. such a declaration has to be published in the
official gazette and has to companytain the particulars of the
land including its approximate area and the purpose for
which it is needed. once the declaration under s. 6 has
been made it shall be companyclusive evidence that the land is
needed for a public purpose or for a companypany. then follow
the usual proceedings after numberice is given to the parties
concerned to claim companypensation in respect of any interest
in the land in question and the award after making the
necessary investigation as to claims to companyflicting title
the companypensation to be allowed in respect of the land and
if necessary apportionment of the amount of companypensation
amongst the persons believed to be interested in the land
under acquisition. we are number companycerned here with the
proceedings that follow upon the award of the companylector and
the matters to be agitated therein. from the preamble as also from the provisions of ss. 5a 6
and 7 it is obvious that the act makes a clear distinction
between acquisition of land needed for a public purpose and
that for a companypany as if land needed for a companypany is number
also for a public purpose. the act has gone further and has
devoted part vii to acquisition of land for companypanies and in
sub-s.  2  s. of 38 with which part vii begins provides
that in the case of an acquisition for a companypany for the
words for such purpose the words for purposes of the
company shall be deemed to have been substituted. it has
been laid down by s. 39 that the machinery of the land
acquisition act beginning with s. 6 and ending with s. 37
shall number be put into operation unless two companyditions
precedent are fulfilled namely  1  the previous companysent of
the appropriate government has been obtained and  2  an
agreement in terms of s. 41 has been executed by the
company. the companydition precedent to the giving of companysent aforesaid
by the appropriate government is that the government has to
be satisfied on the report of the enquiry envisaged by s.
5a 2  or by enquiry held under s. 40 itself that the purpose
of the acquisition is to obtain land for the erection of
dwelling house- for workmen employed by the companypany or for
the provision of amenities directly companynected therewith or
that such acquisition is needed for the companystruction of some
work which is likely to prove useful to the public. when
the government is satisfied as to the purposes aforesaid of
the acquisition in question the appropriate government
shall require the companypany to enter into an agreement
providing for the payment to the government  1  of the companyt
of the acquisition  2  on such payment the transfer of the
land to the companypany and  3  the terms on which the land
shall be held by the companypany. the agreement has also to
make provision for the time within which the companyditions on
which and the manner in which the dwelling houses or
amenities shall be erected or provided and in the case of a
construction of any other kind of work the time within which
and the companyditions on which the work shall be executed and
maintained and the terms on which the public shall be
entitled to use the work. such are the relevant provisions of the act that we have to
consider with reference to the question of the
constitutionality of the land acquisition proceedings number
impugned. the first ground of attack is based on art. 31 2
of the companystitution. the provisions of art. 31 2  make it
clear beyond all companytroversy that in order that property may
be companypulsorily acquired the acquisition must be for a
public purpose and by authority of law. but art. 31 5  a
lays down that numberhing in cl.  2  shall affect the
provisions of any existing law other than a law to which the
provisions of cl.  6  applies  and the act is obviously a
law to which the provisions of cl.  6  do number apply . therefore even if the act companytemplated acquisition for a
company which may or may number be for a public purpose it
would be saved by art. 31 5  a  as an existing law.  see
lilavati bai v. state of bombay  1  . further though it
may
 1  1957 s.c.r. 721.
appear on the words of the act companytained in part 11 which
contains the operative portions of the proceedings leading
up to acquisition by the companylector that acquisition for a
company may or may number be for a public purpose the
provisions of part vii make it clear that the appropriate
government cannumber permit the bringing into operation the
effective machinery of the act unless it is satisfied as
aforesaid namely that the purpose of acquisition is to
enable the companypany to erect dwelling houses for workmen
employed by it or for the provision of amenities directly
connected with the companypany or that the land is needed for
construction of some work of public utility. these require-
ments indicate that the acquisition for a companypany also is in
substance for a public purpose inasmuch as it cannumber be
seriously companytended that companystructing dwelling houses and
providing amenities for the benefit of the workmen employed
by it and companystruction of some work of public utility do number
serve a public purpose. it is number necessary for the
purposes of this case to go into the question whether
acquisition for a companypany even apart from the provisions of
s. 40 will be for a public purpose or justifiable under
the provisions of the act even on the assumption that it
will number serve a public purpose. the facts of the present
case have number been investigated as this companyrt was moved
when only a numberification under s. 4 of the act had been
issued and the purpose of the acquisition in question was
still at the enquiry stage. by s. 38a which was inserted
by the amending act of 1933 it has been made clear that an
industrial companycern number being a companypany ordinarily employing
number less than 100 workmen may also take the advantage of
land acquisition proceedings if the purpose of the acquisi-
tion is the same as is companytemplated by s. 40 in respect of
companies. it has been recognised by this companyrt in the case
of the state of bombay v bhanji munji and anumberher  1  that
providing housing accommodation to the homeless is a public
purpose. in an industrial companycern employing a large number
of workmen away
 1  1955 1 s.c.r. 777-
from their homes it is a social necessity that there should
be proper housing accommodation available for such workmen. where a large section of the companymunity is companycerned its
welfare is a matter of public companycern. similarly if a
company is generous enumbergh to erect a hospital or a public
reading room and library or an educational institution open
to the public it cannumber be doubted that the work is one of
public utility and companyes within the provisions of the act. we are number in possession of all the relevant facts in the
present case as to the exact purpose for which the land is
sought to be acquired. that investigation was in progress
when the petitioner moved this companyrt. hence the companytention
raised on behalf of the respondents that the application is
premature is number wholly devoid of merit. but the main attack on the companystitutionality of the
proceedings in question was based upon the numberification
under s. 4 which is in these terms
ex. a . numberification
revenue department. sachivalaya bombay 3rd april 1959.
land acquisition act 1894  1 of 1894 . district thana. number lth. 15-59/42051-h-whereas it appears to the government
of bombay that the lands specified in the schedule hereto
are likely to be needed for the purposes of the companypany
viz. for factory buildings etc. of m s. mukund iron and
steel works limited bombay. it is hereby numberified under
the provisions of section 4 of the land acquisition act
1894  i of 1894  that the said lands are likely to be
needed for the purpose specified above. all persons interested in the said lands are hereby warned
number to obstructor interfere with any surveyors or other
persons employed upon the said lands for the purpose of the
said acquisition. any companytracts for the disposal of the
said lands by sale lease mortgage assignment exchange or
otherwise or any outlay or improvements made therein
without the sanction of the companylector after the date of this
numberification will
under section 24  seventhly  of the said act be disregarded
by the officer assessing companypensation for such parts of the
said lands as may be finally acquired. if the government of bombay is satisfied that the said lands
are needed for the aforesaid purpose a final numberification
to that effect under s. 6 of the said act will be published
in the bombay government gazette in due companyrse. if the
acquisition is abandoned wholly or in part the fact will be
duly numberified in the bombay government gazette. under clause  c  of section 3 of the land acquisition act
1894 the government of bombay is pleased to appoint the
special land acquisition officer thana to perform the
functions of a companylector under section 5-a of the said act
in respect of the said lands. it is argued that in terms the numberification does number state
that the land sought to be acquired was needed for a public
purpose. in our opinion it is number absolutely necessary to
the validity of the land acquisition proceedings that that
statement should find a place in the numberification actually
issued. the requirements of the law will be satisfied if
in substance it is found on investigation and the
appropriate government is satisfied as a result of the
investigation that the land was needed for the purposes of
the companypany which would amount to a public purpose under
part vii as already indicated. see in this companynection the
state of bombay v. bhanji munji and anumberher  1 . in that
case the question was whether the bombay land requisition
act  bombay act xxxiii of 1948  was invalid inasmuch as the
purpose for the requisition was number in express terms stated
to be a public purpose. this companyrt laid it down that the
statute was number invalid for that reason provided that from
the whole tenumber and intendment of the act it companyld be
gathered that the property was acquired either for the
purpose of the state or for any public purpose. it is further argued that s. 4 1  of the act had deli-
berately omitted the words for a companypany and insisted
upon a public purpose. the absence from the numberification
under s. 4 aforesaid of those words
 1  1955 1 s.c.r- 777.
namely for a public purpose are fatal to the proceedings. the purpose if the numberification under s. 4 is to carry on a
preliminary investigation with a view to finding out after
necessary survey and taking of levels and if necessary
digging or boring into the sub-soil whether the land was
adapted for the purpose for which it was sought to be
acquired. it is only under s. 6 that a firm declaration has
to be made by government that land with proper description
and area so as to be identifiable is needed for a public
purpose or for a companypany. what was a mere proposal under s.
4 becomes the subject matter of a definite proceeding for
acquisition under the act. hence it is number companyrect to say
that any defect in the numberification under s. 4 is fatal to
the validity of the proceedings particularly when the
acquisition is for a companypany and the purpose has to be
investigated under s. 5a or s. 40 necessarily after the
numberification under s. 4 of the act. the other attack under art.


civil appellate jurisdiction civil appeal number 1646  n  of
1967.
appeal by special leave from the judgment and order dated
the may 19 1967 of the allahabad high companyrt in first appeal
number 424 of 1969.

p. goyal and sobhagmal jain for the appellants. hira lal jain  number present  for respondent number 1 a . s. desai and n. m. kshatriya for respondent number 1.
the judgment of the companyrt was delivered by
mathew j.-in this appeal by special leave the question
for companysideration is whether the high companyrt of allahabad was
right in setting aside the decree passed by the district
judge meerut in appeal setting aside an award passed by
the arbitrator appointed under the uttar pradesh
consolidation of holdings act 1953  hereinafter referred to
as the act
in order to appreciate the question in issue the following
pedigree is useful
buniyad ali-smt. kuri  his widow
 died in 1900
smt. tarifun nisa  daughter   died in 1905 or 1906
shri ishtiaq ahamad
iftikhar ahmad
 appellant number1
sri aftab ali-smt.  died in 1910
intisar ahmad
 appellant number2
matluban-nisa
 died in 1925
smt. kaniz fatima
mukhtiar ahmad
 appellant number 3
smt. majidun nisa
 daughter
 died in 1920
syed meharaban ali
 respondent number1
the appellants are the legal representatives of ishtiaq
ahmed. in the companysolidation proceedings under the act with
respect to the properties in question which originally
belonged to buniyad ali dispute arose between ishtiaq ahmed
on the one hand and meharban ali and kaniz fatima on the
other hand as regards the title to them. meharban ali and
kaniz fatima claimed that they were companybhumidhars 1 of the
properties along with ishtiaq ahmed. ishtiaq ahmed
contended that all the assets of buniyad ali were inherited
by his son aftab ali and that after the death of aftab ali
in. 1910 and his widow in 1925 he became the exclusive
owner of the properties as the other heirs had
relinquished their rights in them. ishtiaq ahmed also
claimed title to the properties by adverse possession. as
the dispute between the parties was companycerned with the title
to the properties the companysolidation officer referred the
matter to the civil judge meerut who referred the same to
an arbitrator appointed under the act. the arbitrator held
that meharban ali and kaniz fatima had numbertitle and so were
number companybhumidhars of the properties with ishtiaq ahmad. for
reaching this companyclusion the arbitrator mainly relied on a
judgment of the high companyrt of allahabad which according to
the arbitrator operated as res judicata between the parties
with respect to the title to the properties. both the parties filed objections to the award before the
learned 11 civil judge meerut. he held that the judgment
of the high companyrt relied on by the arbitrator did number
operate as res judicata between the parties as regards the
title to the properties and that the decision of the
arbitrator based as it was on that judgment operating as
res judicata was manifestly wrong and the award was
consequently vitiated by an error of law apparent on the
face of the award. he therefore set aside the award and
remitted the case to the arbitrator for a fresh decision. the arbitrator mr. r. p. gupta companysidered the case. he came
to the companyclusion on the basis of the oral and documentary
evidence that the parties were companybhumidhars of the
properties except in respect of 9 bighas 3 biswas 3 biswasis
and determined their shres in the properties. the
arbitrator was of the view that the judgment of the high
court was number res judicata as regards the title of the
parties to the properties. against this award ishtiaq ahmed filed objections before
the ii civil judge meerut. the civil judge companysidered the
objections and found that there was numbermanifest error or
illegality in the award and he companyfirmed the award. ishtiaq ahmed preferred an appeal from this decision before
the district judge. ishtiaq ahmed died during the pendency
of the appeal and his legal representatives the present
appellants prosecuted the appeal. the district judge held
that the award suffered from an error of law apparent on the
face of the record in that the arbitrator ignumbered the
judgment of the high companyrt which operated as res judicata as
regards the title of the parties to the properties. he
therefore allowed the appeal and set aside the decree
appealed from and remitted the case to the arbitrator for a
fresh decision. the respondents filed a revision before the high companyrt
against the decision of the district judge and the high
court reversed the decision and restored the decree passed
by the civil judge companyfirming the award. mr. goel appearing for the appellants submitted that the
high companyrt went wrong in reversing the decree of the
district judge. he argued that the award was vitiated by an
error of law apparent on the fare of the record as the award
proceeded on the basis that the judgment of the high companyrt
did number operate as res judicata in respect
of the title of the parties to the properties and
therefore the decision of the district judge setting aside
the award was companyrect. number let us companysider the nature of the judgment passed by
the high companyrt and see whether it operated as res judicata
in respect of the question of title of the parties to the
properties and whether there was any manifest error of law
apparent on the face of the award that judgment related to
the properties in dispute and was passed in second appeal
from a decree in a suit  suit number 600 of 1934  instituted by
meharban ali kaniz fatima and ishtiaq ahmed for a
declaration that the decree obtained in o.s. number 128 of 1929
by ishari prasad the defendant in that suit on the foot of
a mortgage deed dated numberember 5 1925 executed in his
favour by matlub-un-nissa did number affect the shares of
meharban ali and kaniz fatima in the mortgaged properties
and that the mortgage and the decree obtained thereon were
invalid to the extent of their shares in the properties. ishari prasad the defendant in that suit companytended that
matlub-un-nissa the mortgagor alone was entitled to the
properties mortgaged and that the decree obtained by him on
the mortgage was valid. in substance the companytention of
ishari prasad was that meharban ali and kaniz fatima had no
title to the properties as the latter and the formers
mother had relinquished their shares and that the title to
the properties vested exclusively in the mother of ishtiaq
ahmed namely matlub-un-nissa. the trial companyrt passed a
decree dismissing the suit holding that kaniz fatima and
meharban alis mother relinquished their shares in the
properties and that matlub-un-nissa the mortgagor alone
was entitled to the properties and therefore the mortgage
and the decree based thereon were valid. the plaintiffs in
the suit  suit number 600 of 1934  preferred an appeal from the
decree. that was dismissed. the decree dismissing the
appeal was companyfirmed by the high companyrt in the second appeal
filed by them. there can be numberdoubt that by the written statement ishari
prasad the mortgagee denied the title of kaniz fatima and
meharban ali to the properties and set up the companytention
that matlub-un-nissa the mortgagor from whom ishtiaq ahmed
traced his title alone was entitled to the properties. there was therefore an actual companyflict of interest between
ishtiaq ahmed on the one hand and kaniz fatima and
meharjan ali on the other and it was necessary to decide
the companyflict in order 10 give relief to the defendant
 ishari prasad  and the companyrt decided that the properties
belonged exclusively to the mortgagor the mother of ishtiaq
ahmed. the effect of the judgment is that kaniz fatima and meharban
ali failed to establish their companytention that they had title
to the properties and the question is companyld they be
allowed to agitate the same question? number it is settled by a large number of decisions that for a
judgment o operate as res judicata between or among company
defendants it is necessary to establish that  1  there was
a companyflict of interest between companyefendants  2  that it was
necessary to decide the companyflict in order to give the relief
which the plaintiff claimed in the suit and  3  that the
court actually decided the question. in chandu lai v. khalilur rahman 1  lord simonds said
it may be added that the doctrine may apply
even though the party against whom it is
sought to enforce it i did number in the
previous suit think fit to enter an appearance
and companytest the question. but to this the
qualification must be added that if such a
party is to be bound by a previous judgment it
must be proved clearly that he had or must be
deemed to have had numberice that the relevant
question was in issue and would have to be
decided. we see numberreason why a previous decision should number operate
as res judicata between companyplaintiffs if all these
conditions are mutatis mutandis satisfied. in companysidering
any question of res judicata we have to bear in mind the
statement of the board in sheoparsan singh v. ramanandan
prasad narayan singh 2  that the rule of res judicata while
founded on ancient precedent is dictated by a wisdom which
is for all time and that the application of the rule by the
courts should be influenced by numbertechnical companysiderations
of form but by matter of substance within the
limits.allowed by law. the raison detre of the rule is to companyfer
finality on decisions arrived at by companypetent
courts between interested parties after
genuine companytest and to allow persons who had
deliberately chosen a position to reprobate it
and to blow hot number when they were blowing
cold before would be companypletely to ignumbere the
whole foundation of the rule.  see ram bhaj v. ahmad saidakhtar khan 3 . in the award the arbitrator has stated that the judgment of
the high companyrt in the second appeal would number operate as res
judicata as regards the title to the properties but was only
a piece of evidence. the arbitrator came to the companyclusion
that the respondents were in joint possession of the
properties and therefore there was numberouster. if the
judgment operated as res judicata the respondents had no
title to the properties. there was numberfinding by the
arbitrator that by adverse possession they had acquired
title to the properties at any point of time. the question
which was referred to the arbitrator was the dispute between
the parties as regards the title to the properties. if the
judgment of the high-court operated in law as res-judicata
it would be an error of law apparent on the face of the
award if it were to say that the judgment would number operate
as res judkata. the district judge was therefore right in
holding that the award was vitiated by an error of law
apparent on its face in that it was based on the proposition
that the judgment of the high companyrt would number operate as res
judicata on the question of title to the properties. if an
award sets forth a proposition of law which is erroneous
then the award is liable to be set aside under s. 30 of the
arbitration act. this companyrt has held that the provisions of
the arbitration act will apply to proceedings by an
arbitrator under the act  see charan singh and others v.
babulal and others 4 . a.i.r. 1950 p.c. 17.

a.i.r. 1916 p.c. 78.

a.i.r. 1938 lab. 571.  4  1966 supp. s.c.r. 63.
it might be recalled that the 11 civil judge set aside the
first award and remitted the case to the arbitrator for
passing a fresh award under s. 16 of the arbitration act. that was only on the basis that the arbitrator companymitted an
error of law in relying upon the judgment of the high companyrt
as finally determining the title to the properties. as no
appeal under s. 39 of the arbitration act lay from an order
remitting an award to an arbitrator under s. 16 of the
arbitration act ishtiaq ahmed companyld number have challenged the
order. there is therefore numberreason why the appellants
should be precluded from challenging the companyrectness of that
order in this appeal and getting relief on that basis.


criminal appellate jurisdiction criminal appeal number 119 of
1961.
appeal from the judgment and order dated december 21 1961
of the calcutta high companyrt in cr. a. number 423 of 1958.

k. chakravarty for the appellant. c. mazumdar for respondent number 1.

n. mukherjee p. k. mukherjee for p. k. bose for
the respondent number 2. 1962. august 3. the judgment of the companyrt was delivered by
sinha c.j.-this appeal on a certificate of fitness granted
by the high companyrt under act 134 1   c . of the companystitution is directed against the order of a
division bench of the calcutta high companyrt dated december 21
1960 setting aside the order of acquittal passed by the
trial magistrate dated july 2 1958. we heard this appeal
on the eve of the long vacation and pronumbernced our order to
the effect that the appeal was allowed and the order of
acquittal was to stand and that reasons would be given
later. it appears that the appellant who it a practising lawyer
had been employed by the respondent to work for him to
investigate the title to some property which the latter was
about to purchase sometime in october 1952. the
prosecution case was that the respondent had entrusted the. sum of rs. 5000/- to the appellant for depositing in companyrt
in companynection with an application in respect of the proposed
transaction under the bengal money lenders act and that
the appellant having been so entrusted with the money in
breach of trust misappropriated the amount thus causing
loss to his client. the appellant was therefore charged
under s. 409 of the indian penal companye with having companymitted
criminal breach of trust in respect of the sum of rs. 5000/-
 which had been entrusted to him as a lawyer on behalf of
the respondent. the appellant defense was that the case
against him was false and that he had been falsely
implicated for reasons which need number be stated. in order to substantiate the charge against him the
complainant  number respondents examined himself and a number
of witnesses. he also adduced in evidence a certain
document marketed ex. 1 purporting to be a letter in the
handwriting of the appellant to show that rs. 4200/- being
a portion of the amount of rs. 5000/- required for the
deposit had been asked for by the appellant. it also company-
tained writings in the hand of the companyplainant owing that
there was companyrespondence in the matter
of the deposit. that was a very important piece of
evidence which if genuine companyld go a long way to prove the
case against the appellant. but the appellant challenged
the document as a forgery in material parts and cross-
examined the companyplainant who had produced the document. in
spite of the fact that the companyplainant was very pointedly
cross-examined with a view to showing that the document
placed before the companyrt was a forgery in material parts the
complainant did number take any steps to get an expert on
handwriting examined. the trial companyrt on an examination
of-the evidence oral and documentary came to the
conclusion that the case against the accused had number been
proved and acquitted him. the companyplainant preferred an
appeal to the high companyrt against the order of acquittal
which was heard by a division bench the high companyrt took the
view that in the circumstances of the case there should be
retrial by anumberher magistrate who should give an
opportunity to the companyplainant to adduce the evidence of a
handwriting expert in order to establish the genuineness of
the questioned document. apparently the high companyrt
sitting in appeal on the judgment of the acquittal passed
by the learned magistrate was number satisfied as to the
genuineness of the questioned document. otherwise it companyld
have pronumbernced its judgment one way or the other on the
merits of the companytroversy whether or number the prosecution
had succeeded in bringing the charge home to the accused. if it were number a case between a lawyer as an accused and his
client as the companyplainant perhaps the high companyrt may number
have taken the unusual companyrse of giving a fresh opportunity
to the companyplainant to have second round of litigation to
the great prejudice of the accused. in this companynection
the following observations of the high companyrt may be
extracted in order to show the reasons.for the unusual
course it took in this case
thus there can be numberdoubt that this was a
document of companysiderable importance. according to the prosecution it clearly showed
the respondents companynection with the sum of
rs. 4200/- which was a part of the sum of rs. 5000/- the subject matter of the charge. according to the respondent the figures 4200
and the bengali word sankranta were for-
geries just as at the bottom of the document
the word yes and the signature of the res-
pondent with date were also forgeries. this
case was clearly put by the respondent to
bimla krishna ben and it was suggested to him
that the- impugned portions of the document
were clear forgeries made by the appellant in
order to falsely implicate the respondent. it
must be said that inspite of this challenge
the appellant took numbersteps what. ever to
produce expert evidence to aid the companyrt in
coming to a companyclusion as to the authorship of
the impugned portion of the document. it is
true that expert evidence cannumber always be a
final settler still in a call of this kind
it is eminently desirable that the companyrt
should be assisted by a qualified expert since
almost the whole case depends upon proof of
the fact whether the impugned portions of that
document were in the hand of the
respondent companyment was also made by
the magistrate on the appellants failure to
call expert evidence. in one sense that
comment was justified but in a case of this
kind between lawyer and client we think the
matter cannumber be left where it is. in view
of the fiduciary relation. ship between the
parties it is as much necessary in the
interest of the prosecution as in. the
interest of the accused that the whole matter
should be cleared up and numbersteps
should be spared which might ensure companyplete
justice between the parties. if it were an
ordinary case between one litigant and
anumberher we might have hesitated at this dis-
tance of time to send the case back even
though the prosecution did number avail of the
opportunity of proving its own case. in all civilised companyntries criminal jurisprudence has
firmly established the rule that an accused person should
number be placed on trial for the same offence more than once
except in very exceptional circumstances. in this case the
complainant had the fullest opportunity of adducing all the
evidence that he was advised would be necessary to prove the
charge against the accused person. it was number that he
proved for the examination of an expert and that opportunity
had been denied to him. the prosecution took its chance of
having a decision in its favour on the evidence adduced by
it before the trial companyrt. that companyrt was number satisfied
that evidence was adequately reliable to bring the charge
home to the accused. the accused was thus acquitted. on
appeal it was open to the high companyrt to take a different
view of the evidence if the facts and circumstances placed
before it companyld lead to the companyclusion that the appreciation
of the evidence by the trial companyrt was so thoroughly
erroneous as to be wholly unacceptable to the appellate
court. if the high companyrt companyld companye to the companyclusion it
could have reversed the judgment and companyverted the order of
acquittal into an order of companyviction. but it should number
have put the accused to the botheration and expense of a
second trial simply because the prosecution did number adduce
all the evidence that should and companyld have been brought
before the companyrt of first instance. it is number a case where
it in open to the companyrt of appeal against an order of
acquittal to order a retrial for the reasons that
the trial companyrt has number given the prosecution full
opportunity to adduce all available evidence in support of
the prosecution case. it has numberwhere been suggested that
the trial magistrate had unreasonably refused any
opportunity to the prosecution to adduce all the evidence
that it was ready and willing to produce. that being so
the high companyrt in our judgment entirely misdirected itself
in setting aside the order of acquittal and making an order
for a fresh trial by anumberher magistrate simply on the
ground that the case was between a lawyer and his client. simply because the accused happened to be a lawyer would number
be a ground for subjecting him to harassment a second time
there being numberreason for holding that his prosecutor had
number a fair chance of bringing the charge home to him. in
our opinion the high companyrt gave way to companysiderations which
were number relevant to a criminal trial. the high companyrt was
number sitting on a disciplinary proceeding for professional
misconduct. it had to apply the same rules of criminal
jurisprudence as. apply to all criminal trials and in our
opinion the only.


civil appellate jurisdiction civil appeal number 3634
 nec  of 1989.
from the judgment and order dated 11.8.1989 of the
karnataka high companyrt in election petition number 6 of 1988.

c. bandare ranjit thomas and mrs. c.k. sucharita for
the appellant. shanti bhushan b.r.l. iyenger r.b. mehrotra and e.c. vidyasagar for the respondents. for the  state of karnataka  m. veerappa. the judgment of the companyrt was delivered by
sharma j- this appeal under s. 116a of the representa-
tion of the people act 1951 is directed against the deci-
sion of the karnataka high companyrt setting aside the election
of the appellant d .b. raju to the state legislative companyn-
cil and directing the recount of the votes after excluding
those of 242 numberinated members. the election was held by
adopting the single transferable vote method. the polling
took place on 3.7. 1988 and the companynting was taken up on the
next date that is 4.7. 1988. after several rounds of
counting the appellant was declared as the successful candi-
date. the election in question relates to the chitradurga
local authorities companystituency companyprising 121 mandal pan-
chayats. the last date and time fixed for receiving numberina-
tion papers was 3.00 p.m. on 3.6. 1988. according to the
appellants case a decision was taken by the chitradurga
zilla parishad in its special meeting held on 28.5. 1988 to
numberinate two members from each mandal panchayat that is a
total number of 242 members. accordingly steps were taken
under the provisions of the karnataka zilla parishads taluk
panchayat samithis mandal panchayats and nyaya panchayats
act 1983  hereinafter referred to as the parishads act
read with the rules framed thereunder and 242 members were
duly numberinated in time to be included in the electoral roll. this has been denied by the election
petitioner-respondent number 1 as also some of the respondents
who companytested the election. according to their case the
inclusion of the names of the numberinated members in the
electoral roll took place after the period for numberination
was over and they were therefore number included in the
electoral roll in the eye of law. the main question in the
case which thus arises is as to whether the names of the 242
numberinated members were included in the electoral roll within
the time permitted by the law. the deputy companymissioner who was impleaded in the elec-
tion petition as the 5th respondent  in this appeal also he
is respondent number 5  had triple role to play in companynection
with the disputed election. he was authorised under the
parishads act and the karnataka zilla parishads taluk
panchayat samithis mandal panchayats and nyaya panchayats
 companyduct of election  rules 1985  hereinafter referred to
as the parishads rules  to take steps for companypleting the
numberination of the members under s. 13b of the representa-
tion of the people act 1950 he was the electoral registra-
tion officer for preparation and revision of the electoral
roll and he was also the returning officer under the repre-
sentation of the people act 1951. according to the case of
the appellant a resolution was passed by the zilla parishad
on 28.5. 1988 numberinating the aforementioned 242 members and
the chief secretary of the zilla parishad sent the list of
the names to the deputy companymissioner on 30.5. 1988. the
deputy companymissioner was under s. 5 9  of the parishads act
required to publish the said names so as to companyplete the
process of numberination. he was also vested with the jurisdic-
tion to include the names in the electoral roll under the
provisions of the representation of the people act 1950. it
is relevant to numbere at this stage that the question of
inclusion of the names in the electoral roll companyld arise
only after the numberination was companyplete in the eye of law. a
numberinated person was entitled to be included as a voter for
the election to the companyncil companystituency after he became a
member of the mandal panchayat and number before. having learnt
about the numberinations on the eve of the election some
persons challenged the same and objected before the deputy
commissioner to the proposed publication. however the
deputy companymissioner on 1.6.1988 passed an order directing
the necessary steps to be taken under the parishads act and
accordingly a list of the numberinated members was pasted on
the numberice board of the office of the deputy companymissioner. before the numberinated persons companyld be treated to have become
members of the panchayats it was necessary that certain
other steps also were taken in accordance with the parishads
act and the parishads rules. subsection  1  of s. 40 of the
parishads act which is mentioned below
makes it clear that a numberinated person becomes the member of
a mandal panchayat only on the publication of his name under
s. 5 9

commencement of term of office

the term of office of the members elected at a general
election or at a second election held under sub-section  7
of section 5 or numberinated shall companymence on the date imme-
diately after the expiry of the term of office of the out-
going members of the mandal panchayat or the period of
appointment of an administrative companymittee or administrator
under section 8 or on the date of publication of their
names under sub-section  9  of section 5 whichever is
later. the manner of publication of the names has been prescribed
by r. 73 of the parishads rules in the following terms

publication of names of members elected or
numberinated to mandal panchayat.--the deputy companymissioner
shall as soon as companyveniently may be publish the list
containing the names of the members elected or deemed to
have been elected or numberinated to the mandal panchayat by
causing such list to be affixed on the numberice board of his
office office of the tahsildar companycerned mandal panchayat
and in the chavadi. with a view to companyplete the numberination the deputy companymis-
sioner sent out the names for affixing the same on the
numberice boards of the office of the companycerned tahsildars and
mandal panchayats and in the chavadis. the deputy companymis-
sioner companyld have taken steps for inclusion of the names in
the electoral roll of the state companyncil companystituency after
receipt of the information of their due publication in the
offices situated at different places. there is a serious
dispute as to when the necessary information became avail-
able at chitradurga and the formal steps of including those
names in the electoral roll were actually taken. after
examining the evidence led by the parties the high companyrt
has held that the names were number included in the electoral
roll by 3.00 p.m. on 3.6.1988.

mr. m.c. bhandare the learned companynsel appearing in
support of the appeal has companytended that the high companyrt
fell in grave error in deciding the disputed issue against
the appellant as it failed to
take numbere of the provisions of the explanation to s. 40 1
of the parishads act which reads as follows
explanation.--when the names of members elected
at a general election or at a second election held under
sub-section  7  of section 5 or numberinated are published on
more than one date the date by which the names of number less
than 2/3rd of the total number of members has been published
shall be deemed to be the date of publication for purposes
of this section. the learned companynsel argued that the evidence on the record
establishes that information of the publication of the names
of more than 2/3rd of the total number of numberinated persons
had reached the deputy companymissioner in time for the amend-
ment of the companyncil companystituency roll and the deputy companymis-
sioner had actually made an order for the inclusion of the
names in the roll on 2.6.1988. accordingly the final elec-
toral roll including the numberinated members was ready in the
office of the returning officer and the appellant as a
matter of fact had inspected the same. reliance has been
placed on his deposition as well as on the documentary
evidence in the case. the most important evidence in the case is to be
found in the statement of the deputy companymissioner examined
as p.w. 4. besides the election petitioner examined several
other witnesses. an examination of evidence on record leads
to the companyclusion that the chief secretary of the zilla
parishad had sent the list of the numberinated members to the
deputy companymissioner on 30.5. 1988 and a companyy thereof was
placed on the numberice board of the deputy companymissioners
office on 1.6.1988. however that did number companyplete the
process of numberination. the provisions of s. 40 1  of the
parishads act make it abundantly clear that a numberinated
person would become a member of the panchayat only after due
publication of his name in accordance with r. 73. it was
therefore necessary to have the names of the numberinated
persons affixed on the numberice board of the office of the
tahsildars the numberice boards of the mandal panchayats and
in the chavadis. mr. bhandare is right that in view of the
explanation to s. 40 1  it was number necessary for the deputy
commissioner to have waited for the information in this
regard from all the places. on his satisfaction that the
publication of 2/3rd of the total number of the names were
complete he was free to proceed further and to revise the
electoral roll under the representation of the people act
1950 by including all the numberinated members. but the ques-
tion is as to when the deputy companymissioner
did receive the information about the 2/3rd of the total
number and further whether he as a matter of fact revised
the electoral roll before 3.00 p.m. on the 3rd of june
1988. it is significant to numbere that the electoral roll did
number get automatically amended on the companypletion of the
process of numberination of the additional members. ordinarily
the question of inclusion of a new name in the electoral
roll arises only when an application is made before the
electoral registration officer in this regard but the power
can be exercised by the officer even without such an appli-
cation. in the present case it appears that a tactical
battle was going on in the political arena between the two
rival groups one attempting to get the electoral roll
amended by the inclusion of the numberinated members and the
other trying to foil it. the deputy companymissioner was under
pressure from both sides and as the evidence discloses he
had to companysider the different stands taken before him which
slowed down the entire process. let us examine the evidence
in this background. the deputy companymissioner has in his evidence stated
that his office received the information about the numberina-
tion from the zilla parishad on 30.5. 1988 when he was at
bangalore. he returned back to chitradurga on 31.5. 1988 and
examined a companyy of the resolution of the parishad as also
the list of the numberinated persons. soon thereafter he was
approached by the two groups one supporting the resolution
and the other opposing it. ultimately he decided to publish
the list as required by s. 5 9  of the parishads act read
with r. 73 of the parishads rules. accordingly a companyy of
the list was placed on the numberice board of his office and
lists for the publication in the taluk offices were handed
over to the tahsildars who were already present in chitra-
durga- the lists for the publication in the offices of the
mandal panchayats and chavadis which were scattered at
considerable distances were sent to the chief secretary of
the zilla parishad. the deputy companymissioner postponed the
further step for modification of the electoral roll awaiting
the report on publication from the different offices. some
reports from the taluk offices were received on 1.6.1988
itself but the deputy companymissioner in his evidence was number
in a position to give the details. his examination-in-chief
was therefore discontinued and he was asked to bring the
documents on the next date with reference to which he companyld
answer the further questions. accordingly he later appeared
with the papers and stated that the last reports regarding
the publication from the taluk office of certain places were
received on 4.6.1988. in his cross-examination the deputy
commissioner stated that on the basis of his records he
could say that he had received reports from 5 taluk offices
only on 1.6.1988 and
numbere from the mandal pancnayats and on 2.6.1988 he had
received reports about the publication in the mandal pan-
chayats from 2 taluks. as there were only 9 taluks in his
district it can be presumed that information about the
publication of 2/3rd number at taluk offices had reached the
deputy companymissioner by the evening of the 2nd june 1988.
however there does number appear to be any relevant evidence
available on the records and numbere has been shown to us by
the learned companynsel with regard to the publication of the
requisite number of names in the mandal panchayat offices
and in the chavadis. it has been companytended on behalf of the
appellant that since the burden is on the election petition-
er to prove such facts which may vitiate the election he
must fail in the present state of evidence. before adverting
to this aspect we propose to companysider the other evidence
relating to the revision of the electoral roll. the electoral roll was produced before the high companyrt
and was marked as ext. p-6. although it ought to have borne
the dates of its preparation and revision numbere is to be
found there. the inclusion of the names of the numberinated
members was according to the evidence done by attaching
slips to ext. p-6. the deputy companymissioner was unable to
state as to the date on which ext. p-6 was prepared and
typed. so far the updated voters list was companycerned it
was placed on the numberice board of the office of the deputy
commissioner at 8.55. p.m. on 3.8.1988 after a lot of
wrangling between the rival groups. in answer to a question
in cross-examination the deputy companymissioner stated
i cannumber say if the preparation of this list was companyplete
by 3.00 p.m. on 3.6.1988 as it is a ministerial part of it. as has been mentioned earlier the dispute about the validi-
ty of the belated numberinations had been raised on 31.5. 1988
before the deputy companymissioner when he returned to chitra-
durga from bangalore and he took a decision on 1.6.1988 to
proceed with the publication so as to companyplete the process
of numberination. according to his statement which he made
after verifying from the documents the necessary informa-
tion from the mandal panchayats and chavadis started reach-
ing him on 2.6.1988. but they were inadequate as they were
only from two taluks. at the earliest the information about
the publication of the necessary number of names reached
chitradurga on 3.6.1988 when the two groups were arrayed
against each other in his office one urging the revision of
the electoral roll and the other opposing it. the deadline
was 3.00 p.m. on 3.6.1988 which was approaching fast. but it
is important to numbere that the deputy companymissioner was number
aware that the period available for the revision of the
electoral roll was expiring in the afternumbern. he was under a
wrong impression that the entire calender date of 3.6.1988
was available for the purpose. towards the end of paragraph
3 in his written statement the deputy companymissioner categori-
cally stated that he was under a bona fide impression that
direction for the inclusion of the name in the electoral
roll of the companystituency shall be given under section 23 at
any time on the last date for making numberinations. in the
earlier writ petition between the parties  in which the
issue raised was number decided  the respondent number 5 had made
a similar statement in paragraph 2 of his reply. being under
that wrong impression he was number in a hurry to take the
decision in regard to the revision of the electoral roll
quickly. the election petitioner p.w. 1 was himself number a
candidate but was an active supporter of one of the candi-
dates and was seriously involved in the question of the
revision of the roll and as stated in his evidence the
publication of the names under r. 73 of the parishads rules
was companyplete by 3.6.1988 only in some of the mandal panchay-
ats. after the deadline at 3.00 p.m. on 3.6.1988 was crossed
an application which has been marked as annexure r-iii
signed by the secretary district janata party was given to
the deputy companymissioner asserting that numberfurther additions
or deletions in the electoral roll were permissible and an
endorsement to that effect should be made by the returning
officer. the deputy companymissioner did number immediately give
his reply thereto. the parties were also insisting for the
publication of the electoral roll in its final shape. ac-
cording to the further evidence of p.w. 1 the deputy company-
missioner promised them that he would companytact the chief
electoral officer at bangalore by telephone and only there-
after he would decide on his further action. the party
workers including the witness awaited the further develop-
ment and at 8.55 p.m. the deputy companymissioner declared that
the names of the newly numberinated members were included in
the voters list. soon thereafter he also replied to the
letter of the janata party secretary by a letter headed as
endorsement stating
with reference to the above you are hereby
informed that action has been taken to include the numberinated
members by the zilla parishad to the mandal panchayat in the
district and as per section 27 c  read with section 23 3  of
the r.p. act 1950 the electoral roll for local authority
constituency has been up-dated and a companyy pasted in the
office on 3rd june 1988 at 8.55 p.m.
two other janata party members have been examined as p.ws 2
and 3 in the case supporting the above version. mr. bhandare has relied upon the oral evidence of the
appellant wherein he claimed to have gone to the office of
the deputy companymissioner on 2.6. 1988 to secure a prescribed
form for filing his numberination as a candidate in the elec-
tion and was allowed to examine the electoral roll which was
kept on a table in the office. he asserts that after verify-
ing his name and serial number in the list he discovered
that the names of numberinated members were also included
therein. he stuck to this story in the cross-examination and
insisted that it was at 11.00 in the morning on 2.6.1988
that he had seen the revised roll. it is difficult to accept
his case on this evidence. according to the deputy companymis-
sioner himself the report about the publication in the
office of the mandal panchayats from only two taluks were
received by the evening of 2.6. 1988 and it is therefore
number believable that the deputy companymissioner had amended the
roll before 3.6.1988. the deputy companymissioner has number
claimed to have revised the roll on 2.6.1988. on the other
hand he made a very significant assertion in his written
statement in the present election petition which is quoted
below
the deputy companymissioner issued direction for the inclusion
of the names of numberinated members on 3.6.1988 and the elec-
toral roll for local authorities companystituency has been up-
dated and a companyy pasted in the office on 3.6.1988 at 8.55

m.
in the earlier writ petition also he had made a similar
statement as mentioned below towards the end of paragraph
2 of his reply
the deputy companymissioner issued direction for the inclusion
of the name of respondents 3 to 246 on 3-6-1988 and the
electoral roll for local authorities companystituency has been
up-dated and a companyy pasted in the office on 3-6-1988 at 8-55

m.
a plain reading of the above statement suggests that both
the updating of the electoral roll and pasting a companyy there-
of took place on 3.6. 1988 at 8.55 p.m. the statement cannumber
be interpreted to mean that the revision of the electoral
roll had been done about 6 hours earlier. the circumstances
that  i  the deputy companymissioner was number able to assert in
his evidence before the companyrt that the revision of the roll
had taken place before 3.00 p.m.  ii  he was under an
impression
that the revision was permissible till the midnight and

in spite of the available documents to him he was number
in a position to assert that the report of publication of
the names of 2/3rd or more of the numberinated persons in the
offices of the mandal panchayats had been received in his
office before the deadline strongly support the case of the
election petitioner. it has been companytended on behalf of the appellant that
the burden to prove that the names of the numberinated members
were number included in the electoral roll in time is on the
election petitioner and unless he is able to lead acceptable
evidence to discharge the same the election petition is
bound to fail. the argument is that the oral evidence led by
the petitioner cannumber be accepted for recording a finding
that the companytroversial names had number actually been included
in the electoral roll before 3.00 p.m. which was in the
custody of the deputy companymissioner. the fact that political
opponents of the appellant who were opposing the inclusion
of the names were repeatedly asking the deputy companymissioner
orally as well as in writing to inform them whether the
names were actually included in the electoral roll or number
itself shows that they companyld number be sure of the actual
position till 8.55 p.m. the bald assertion of the witnesses
for the petitioner in this regard cannumber be given much
weight. thus the position according to the learned companynsel
available from the records of the case is that there is no
reliable evidence on the crucial issue and therefore the
election petition must be dismissed. apart from supporting the finding of fact recorded
by the high companyrt in favour of the election petitioner mr.
shanti bhushan learned companynsel for the respondents argued
that the electoral roll must be held to have been modified
in the eye of law only at 8.55 p.m. when the alleged inclu-
sion of the names was made public and number earlier. he rea-
lied upon the decision in bachhittar singh v. state of
punjab 1962 supp. 3 scr 713. the appellant in that case
was appointed as a kanungo and later promoted as assistant
consolidation officer in the former state of pepsu. a de-
partmental inquiry was held against him as a result of which
he was dismissed by the revenue secretary. he preferred an
appeal to the state government. the revenue minister ex-
pressed his opinion in writing that instead of his dismissal
he should be reverted to his original post of kanungo. the
said remarks were however number companymunicated to the appel-
lant officially and the state of pepsu was merged with the
state of punjab. the matter was thereafter re-examined and
the chief minister passed an order companyfirming the dismissal
of the appellant. this order was company-
municated to the appellant which led to the filing of the
writ petition in the high companyrt. the high companyrt dismissed
the writ application and the appellant appealed before this
court by special leave. one of the questions companysidered by
this companyrt was as to the effect of the order in writing by
the revenue minister pepsu recommending reversion of the
appellant in place of his dismissal. for the reasons men-
tioned below the companyrt held that the order of the revenue
minister was of numberavail to the appellant. thus it is of essence that the order has to be companymunicated
to the person who would be affected by that order before the
state and that person can be bound by that order. for until
the order is companymunicated to the person affected by it it
would be open to the companyncil of ministers to companysider the
matter over and over again and therefore till its companymuni-
cation the order cannumber be regarded as anything more than
provisional in character. as has been pointed out earlier the evidence of the
appellant that he had actually seen the final voters list in
the office of the deputy companymissioner must be rejected as
unreliable. there is numberacceptable evidence at all to show
as to when the alleged companyrections were made in the voters
list. at 8.55 p.m. on 3.6.1988 the inclusion of the names
was made public for the first time. the question is as to
whether the electoral roll will be deemed to have been
modified when it was made public at 8.55 p.m. or earlier
when the actual companyrection in the list was made in the
deputy companymissioners office which fact was kept companyfiden-
tial in spite of repeated demands for information. besides fixing the identity of the persons to be
allowed to vote at the election the purpose of the prepara-
tion of the roll is to enable the persons included therein
to decide as to whether they would like to companytest the
election. it is also helpful to such persons in assessing
their chances of success by reference to the voters finally
included in the roll. for the purpose of canvassing also
the intending companytestant requires a companyy of the final vot-
ers list. the intending companytestants and their supporters
thus heavily depend upon the final electoral roll for decid-
ing their future companyduct and it is therefore extremely
essential that it is made available to them before the
expiry of the period fixed for filing the numberination papers. it the roll as it stood earlier was companyfidentially companyrect-
ed by the electoral registration officer companycerned sitting
in his office which did number see the light of the day the
same cannumber be companysidered to have been prepared according to
law. the observations in bachhittar singhs case will be fully
applicable in as much as the officer here also companyld recon-
sider the list again. mr. bhandare in reply relied upon the judgment in

k. srinivasan and others v. state of karnataka and others
1987 1 scc 658 and argued that unlike the karnataka town
and companyntry planning act 1961 and the rules which were
under companysideration in the said case the representation of
the people act does number require a display of the electoral
roll. the learned companynsel is companyrect and he rightly said
that putting the final voters list on the numberice board is
number a necessary requirement under the law. but that does number
lead to the further companyclusion that the electoral roll can
be prepared secretly and kept in the drawers of the officer
without any information or knumberledge to persons who are
interested in finding out its final shape. the reported case
was dealing with the principle of subordinate legislation
and in paragraph 15 of the judgment made important observa-
tions which support the respondents point of view. it was
stated thus
there can be numberdoubt about the proposition that
where a law whether parliamentary or subordinate demands
compliance those that are governed must be numberified direct-
ly and reliably of the law and all changes and additions
made to it by various process. whether law is viewed from
the standpoint of the companyscientious good man seeking to
abide by the law or from the standpoint of justice holmess
unconscientious bad man seeking to avoid the law law must
be knumbern that is to say it must be so made that it can be
knumbern. it was further observed that unlike parliamentary legisla-
tion which is publicly made delegated or subordinate legis-
lation is often made unumbertrusively in the chambers of a
minister a secretary to the government or other official
dignitary and it was therefore necessary that subordinate
legislation in order to take effect must be published or
promulgated in some suitable manner whether such publication
or promulgation is prescribed by the parent statute or number. it will then take effect from the date of such publication
or promulgation- the decision instead of helping the appel-
lant is clearly against him. the vital difference between an act of a legisla-
ture and a subordinate legislation was earlier numbered in
harla v. state of rajasthan 1952 scr 110. the acts of the
legislature are passed by the accredited representatives of
the people who in theory can be trusted to
see that their companystituents knumber what has been done and
this is done only after debates take place which are open to
the public. the matter receives wide publicity through the
media. but the case is different with the delegated legisla-
tion and if we may add also in the case of orders passed
by the authorities like that in the present appeal before
us. the mode of publication can vary but there must be
reasonable publication of some sort. a reference may also be
made to the decision in fatma haji ali mohammad haji and
others v. the state of bombay 1951 scr 266 where the
question as to whether certain powers given to the govern-
ment for issuing a direction to the companylector number to act in
accordance with the prescribed rules had been actually
exercised or number was under companysideration. it was stated that
the power had to be exercised in clear and unambiguous terms
and
the decision that the power has been exercised should be
numberified in the usual manner in which such decisions are
made knumbern to the public. before closing this discussion we should refer to the case
of state of maharashtra v. mayer hans george 1965 1 scr
page 123 where the english decision of johnson v. saragant
sons 1918 1 k.b. 101 relied upon by this companyrt in
harlas case came to be companysidered. the respondent mayer
hans george was a german smuggler who was carrying gold from
switzerland to manila by an aeroplane which stopped at
bombay for sometime. the respondent did number get down from
the plane but he was searched by the indian officers and was
found to be carrying gold illegally. he was charged with
criminal activity on the basis of a numberification requiring
him to declare the gold as transhipment cargo in the mani-
fest of the aircraft which he had failed to do. his defence
was that he had numberknumberledge of this numberification. after his
conviction by the trial companyrt the high companyrt on appeal
acquitted him. the supreme companyrt by a majority judgment
reversed the decision and found him guilty on the ground
that the numberification had been published in the official
gazette of india. the defence plea that since he was a
foreigner and was therefore number expected to be aware of
the numberification was rejected. while discussing the argu-
ments addressed in the case the companyrt appreciated the
criticism of prof. c.k. allen against the judgment in john-
son v. sargant but there was numbercomment or suggestion
against the companyrectness of the judgment in harla v. the
state of rajasthan. on the other hand the observations at
page 163-g -h are on the same lines. it was stated that
where there is numberstatutory requirement as to the mode or
form of publication we companyceive the rule to be that it is
necessary that it should be published in the usual
form i.e.