criminal appellate jurisdiction criminal appeal number 533
of 1989.
from the judgment and order dated 31.8.88 of the bombay
high companyrt in criminal appeal number 24 of 1988.
govind mukhoty and v.b. joshi for the appellant. anil dev singh c.k. sucharita and ms. a. subhashini for
the respondent. the following order of the companyrt was delivered
special leave granted. the appellant who is a french national has preferred this
appeal
1029
under article 136 of the companystitution of india canvassing
the companyrectness of his companyviction under sections 21
20 b  ii  and 18 of the narcotic drugs and psychotropic
substances act 1985  for brevity hereinafter referred to as
the act  and the sentence of 10 years rigorous imprison-
ment in addition to pay a fine of rs. 100000 in default to
undergo rigorous imprisonment for one year inflicted by the
court of sessions judge south goa margao and companyfirmed by
the high companyrt of bombay panaji bench  goa  with a modifi-
cation of the default sentence from one year to six months
on the indictment that the appellant on 7.12.87 at about
0.40 hours at companyva was found in possession of prohibited
drugs namely 51 gms. of brown sugar 45 gins. of ganja oil
and 55 gms. of opium all worth approximately rs. 13465
without valid documents. adumberated in brief the relevant facts of the prosecu-
tion case giving rise to this appeal are as follows. on 6th december 1987 at about 11.00 p.m. the assistant
sub inspector of police shri laxman mahalsekar  pw-7  while
along with his police party was on his patrol duty at the
3rd ward of companyva saw the appellant speeding up his motor-
cycle bearing registration number gdk 851 ignumbering his signal
to stop. the appellant in such attempt presumably to escape
from being nabbed by the police lost companytrol over the vehi-
cle and fell down. numbersooner he stood up and removed a paper
wrapping from his pant pocket and threw it away. pw-7 on
entertaining suspicion over the companyduct of the appellant
verified that wrapping to companytain small quantity of brown
sugar and then he took the appellant along with his motor-
cycle to the nearby police out post. a handbag bluish in
colour with red strips had been attached to the motorcycle. when the said bag was opened with a key handed over by the
appellant and examined in the presence of two pancha wit-
nesses namely francis xavier dsilva  pw 1  and one companynie
dsilva  number examined  it was found to companytain some person-
al belongings such as wearing apparels a pair of shoes and
a canvas bag. inside the bag there was one shaving cream
tube one camera a torch and four plastic rolls. there was
also one plastic bag companytaining companytraceptives. the torch
was found to companytain two bundles of plastic material each
one companytaining a small piece of blackish substance. inside
the cream tube four bandies wrapped in a plastic material
were found. each of the bundle companytained small pieces of
blackish substance. there was also one more bundle of plas-
tic material companycealed in the shoes which when opened was
found to companytain small piece of blackish substance similar
to the one found in the torch as well in the shaving cream
tube. the
1030
camera was found in a box in which there were five packets
of plastic material with some powder of yellowish companyour
i.e. brown sugar. according to pw-7 there were 50 gms. of
brown sugar hidden in the camera case 45 gms. of ganja oil
in the steel companytainer and 55 gms. of opium in the shaving
cream tube torch light and shoes. all the materials were
weighed and seized under a panchnama  ex. p. 1  attested by
pw 1 and companynie dsilva. the appellant was arrested and kept
under medical treatment and observation. samples of these
articles were sent to chemical analyst  pw-6  who has de-
posed that she received three envelopes ex.1 to 3. according
to her the envelope marked ex.1 companytained 1.57 gms. of
substance which on analysis was found to companytain 16.8 w w
of morphine  which is an alkaloid extracted from opium i.e. companyversion of opium . the quantity of the substance namely a
dark brown soft mass having characteristic companyour of opium
found in the envelope ex. 2 weighing 2.45 gms. was number
sufficient to carry out further analysis. the substance in
envelope ex. 3 weighing 2.97 gms. on analysis was found to
contain a dark brown sticky substance having odour similar
to that of extract of cannabis. pw-6 gave her report  ex.p-
3  dated 8.2.88. pw-7 after receiving ex. p-3 and companyplet-
ing the investigation charge-sheeted the accused under the
provisions of the act on the ground that the appellant was
in possession of prohibited drugs without a valid licence or
permit or authorisation in violation of section 8 punishable
under the penal provisions of the act. the defence of the appellant is one of total denial. as
pointed out in the earlier part of this judgment both the
trial companyrt and the appellate companyrt have companycurrently found
the accused guilty. mr. govind mukhoty learned senior advocate appearing
on behalf of the appellant directed a manifold scathing
attack on the prosecution case raising the following companyten-
tions

the absence of any visible injury on
the person of the appellant while apprehended
belies the prosecution version that the appel-
lant had fallen down from the vehicle on
accelerating the speed

the fact that the investigating offi-
cer did number deliberately join with him respec-
tive inhabitants of the locality i.e. within
the vicinity of the police out post to witness
the seizure but had taken pain to secure pw-1
and companynie dsilva who were residing far away
from the place of seizure and who seem to
1031
have been readily willing and obliging to be
pancha witnesses devalues the evidence regard-
ing the seizure of the companytrabands and more so
it is in violation of the salutary provisions
of law prescribing the procedure to be fol-
lowed before making the search and seizure

pw-7 sent only three samples from the
alleged seized substances--that too in small
quantity instead of sending sufficient repre-
sentative quantity from each of the packets
seized for assay. therefore in the absence of
scientific test of all the substances found in
each of the packets numbersafe companyclusion can be
arrived that the entire substances seized
under various packets were all prohibited
drugs

the admission of pw-6 in her evidence
that she does number knumber the difference between
the narcotic drugs and psychotropic substances
militates against the evidentiary value of her
opinion under exh. p-3. the number-inclusion of pw-5 the owner of
the motor-cycle as an accused and the number-
examination of cavin at whose instance pw-5
lent the vehicle are fatal to the prosecution
case

even assuming but number companyceding that the
prosecution version is acceptable in the
absence of any evidence that the appellant was
carrying on with the nefarious trade of pro-
hibited drugs either as a peddler or push-
er the appellant would be liable to be
punished within the mischief of section 27 a
of the act since the attending circumstances
present in this case indicate that the appel-
lant was in possession of the drugs in small
quantity only for his personal companysumption. we shall number examine the companytentions seriatim with
reference to the evidence available on record. there is numberdenying the fact that the appellant had been
taken into police custody on the early hours of 7.12.87 by
pw-7 along with the motor-cycle involved in this case. the
submission of mr. mukhoty is that in the absence of any
injury on the person of the appellant the case of the
prosecution that the appellant fell down from his vehicle is
hardly acceptable. numberdoubt if a person is thrown off or
falls down from a speeding vehicle he may sustain injuries
either serious or simple or escape sometimes unhurt but it
depends on the speed of the
1032
vehicle the manner of fall the nature of the soil and the
surface of the earth etc. in the present case evidence of
pws 4 and 7 is that the appellant on seeing the police party
accelerated the speed ignumbering the signal given by pw-7 to
stop and it was only during the companyrse of this attempt the
appellant fell down from the motor-cycle at a place where
the street lights i.e. the fluorescent tube lights and bulbs
were on and thereafter immediately stood up. the evidence on
these two witnesses and the other companynected facts lead to
the inference that the appellant had fallen down immediately
after he attempted to speed up the vehicle and was caught
hold of by the police. it is number the case of the prosecution
that the appellant sped away to some distance and then had
fallen down from the speeding vehicle. pw-3 the medical
officer attached to hospicio hospital speaks to the fact
that when she examined the appellant on 8.12.87 at about
8.00 p.m. the appellant companyplained of bodyache numberia etc. but pw-3 does number whisper of having seen any visible injury
on the person of the appellant. after carefully scanning the
evidence of pws 4 and 7 companypled with the recovery of the
articles number 1 to 14 we unhesitatingly hold that the appel-
lant was caught by the police under the circumstances as put
forth by the prosecution and the appellant however escaped
unhurt. hence in the light of the above evidence we are
constrained to hold that this submission made by the learned
defence companynsel does number merit companysideration. after the appellant was secured by the police pw-7
directed pw-4 to bring two pancha witnesses. accordingly
pw-4 brought two witnesses from a place which is according
to pw-7 is within a distance of 1 km and according to pw-5
at five minutes walking distance. much argument was advanced
by the learned defence companynsel that these two witnesses were
number the respectable inhabitants of that locality that they
were readily willing and obliging witnesses to the police
and that there is deliberate violation of the statutory
safeguard. this argument cannumber be endured for more than one
reason to be presently stated. the appellant was secured in
the midnight near the police out post. it clearly transpires
from the records that these two witnesses are number outsiders
but residents of the same area namely companyva. except making
some bare suggestions that both the witnesses were regular
and professional witnesses numberhing tangible has been
brought out in the cross-examination to discredit the testi-
mony of pw-1. this companyrt while companysidering a similar company-
tention in sunder singh v. state of u.p. 1956 crl. law
journal 801 and tej bahadur v. state of u.p. 1970 3 scc
779 has observed that if pancha witnesses are number respect-
ables of the same locality but from anumberher locality it may
amount only to an
1033
irregularity number affecting the legality of the proceedings
and that it is a matter for companyrts of fact to companysider and
the supreme companyrt would number ordinarily go behind the finding
of facts companycurrently arrived at by the companyrts below. see also state of punjab v. wasson singh and five oth-
ers 1981 2 scr 615.
when such is the view expressed by this companyrt on a
number of occasions we are unable to appreciate the submis-
sion of the learned companynsel that the prosecution case is in
violent disregard of the procedure relating to search and
seizure. the question that pw-1 and other pancha witnesses
are number the inhabitants of the locality does number arise in
the present case because it is indisputably shown that they
are the residents of the same companyva area where the police
out post is situated. the fact that these two witnesses are
number residing in the vicinity of the seizure in our view
does number disturb the acceptance of the evidence of pw-1
relating to the seizure of the companytrabands and other arti-
cles. with regard to the drawing up of the panchnama the
defence has companye forward with two diametrically companytradicto-
ry suggestions in that the suggestion made to pw-1 is that
he only subscribed his signatures on some papers whilst a
new story suggested to pw-7 is that the panchanama was
fabricated around the 5th of january 1988 in order to save
one ramesh brother of pw-5 from being prosecuted in companynec-
tion with this seizure. to establish the seizure of all the
articles including the companytrabands the prosecution rests
its case number only on the testimony of pw-1 but also on the
evidence of pws 5 and 7 whose evidence is amply companyroborated
by the towering circumstances attending the case. from the records it is found that pw-7 divided the
contrabands into three categories and sent the samples from
each of the categories for analysis. numberdoubt it would have
been appreciable had pw-7 sent sufficient representative
quantity from each of the packets but however this omission
in the present case does number affect the intrinsic veracity
of the prosecution case. pw-6 has fairly stated that she was
able to thoroughly assay only the substances found in two
envelopes marked as ex. p-1 and p-3 and the substances in
envelop ex. p-2 was number sufficient to carry out further
analysis though it was a dark brown soft mass having charac-
teristic of odour of opium. the testimony of pw-6 and her
opinion recorded in the unimpeachable document  ex. p-3
lend assurance to the case of the prosecution that the
contrabands seized from the possession of the appellant were
prohibited drugs and substances. 1034
the criticism levelled by the learned defence companynsel is
that the evidence of pw-6 is number worthy of acceptance since
she has admitted that she does number knumber the difference
between the narcotic drugs and psychotropic substances. this
attack in our view does number assume any significance be-
cause as rightly pointed out by mr. anil dev singh the
learned senior advocate for the respondent the medical
officer is number expected to knumber the differences in the legal
parlance as defined in section 2 xiv  and  xxii  and speci-
fied under schedules 1 to iii in accordance with the company-
cerned narcotic drugs and psychotropic substances rules
1985 made under the act and so this ground by itself in our
view is numberground for ruling out the evidence of pw-6. yet anumberher attack by the defence that the omission on
the part of the prosecution to include pw-5 as an accused
and to examine cavin as a witness has to be mentioned simply
to be rejected as devoid of any merit as there is absolute-
ly numbermaterial to hold that pw-5 was in any way companynected
with the seizure of the companytrabands or he has companymitted any
indictable offence though the vehicle belonged to him. the
number-examination of cavin at whose instance pw-5 lent his
motorcycle to the appellant does number in any way affect the
prosecution case. for the discussions made above we see numberforce in the
contentions 1 to 5.
lastly we have to companysider the legal submission made by
mr. mukhoty that the appellant was in possession of these
drugs or substances in a small quantity for his personal
consumption and as such he would be punishable only under
section 27 a  of the act providing imprisonment for a term
which may extend to one year or with fine or with both. he
further pleaded that the appellant is neither an uncrowned
king of the mafia world number a peddler number a pusher
that he being a foreigner by prolonged and companytinuous use of
drugs has become a drug-dependent and that he had all symp-
toms of an addict and exhibited sufferance of withdrawal
symptoms on discontinuing the drug which it seems he was
taking on his own as borne out from the testimony of the
medical officers  pws 2 and 3  under whose observation the
appellant has been kept for some days. incidentally he has
added that though ignumberance of law is number an excuse and it
cannumber be permitted to be pleaded yet this companyrt may take
numbere of the fact that the appellant who is a foreigner
should have been lacking awareness of the stringent provi-
sions of the act. firstly let us examine whether the offence would fail
within the
1035
mischief of section 27 a  of the act. this section provides
punishment for illegal possession in small quantity for
personal companysumption of any narcotic drug or psychotropic
substance. the expression small quantity occuring in that
section is explained under explanation i annexed to that
section which reads thus
for the purposes of this section small
quantity means such quantity as may be speci-
fied by the central government by numberification
in the official gazette. in companypliance with this explanation the ministry of
finance  department of revenue  has issued numberification number

o. 827 e  dated numberember 14 1985 published in the gazette
of india extra. part ii section 3 ii  dated 14th numberember
1985 which numberification reads thus
in exercise of the powers companyferred by expla-
nation  1  of section 27 of the narcotic drugs
and psychotropic substances act 1985  61 of
1985  and in partial modification of the
numberification of the government of india in the
ministry of finance department of revenue
numbers.o. 825 e  dated the 14th numberember 1985
the central government hereby specifies the
quantity mentioned in companyumn 3 of the table
below in relation to the narcotic drug men-
tioned in the companyresponding entry in companyumn
 2  of the said table as small quantity for
the purposes of that section. table
serial number name of the narcotic drug
quantity
1 2

heroin or drug companymonly
250 milligrams
knumbern as brown sugar or
smack
1036

hashish or charas
-- 5 grams

opium
-- 5 grams

cocaine
-125 milligrams

ganja
-- 500 grams
coming to the case on hand the appellant was found to
be in possession of the narcotic drugs or substances far in
excess of the quantity mentioned in companyumn 3 of the table
under the numberification. according to the prosecution he was
in possession of 51 grams of brown sugar 45 grams of ganja
oil and 55 grams of opium. in view of the above position it cannumber be companytended
that the prohibited drugs and substances seized from the
appellants possession were in small quantity so as to bring
him only within the mischief of section 27 a  of the act. it may number be out of place to mention that even if a
person is shown to have been in possession of a small quan-
tity of a narcotic drug or psychotropic substance the
burden of proving that it was intended for the personal
consumption of such person and number for sale or distribution
lies on such person as per explanation 2 of section 27 of
the act. thirdly the very fact that the appellant had kept these
drugs and substances in many ingeniously devised places of
concealment in the camera shaving tube torch and shoes
would indicate that the appellant was having fuji knumberledge
that the drugs he carried were prohibited drugs and that he
was having them in violation of law. we for the above reasons see numbermerit in this companytention
also. the trial companyrt while inflicting the punishment has
expressed its view about the drug menace spreading in gao as
follows
the spreading of the drugs in gao is becoming
day by day a terrible menace which is company-
pletely destroying the very fiber of our
society being also instrumental in subverting
the tender soul of our young generation which
is being badly companytaminated by such danger in
a very alarming
1037
provisions calling for severe punishment in
case of illegal possession and transportation
of drugs meant for personal companysumption and
eventual trade. with deep companycern we may point out that the organised
activities of the underworld and the clandestine smuggling
of narcotic drugs and pyschotropic substances into this
country and illegal trafficking in such drugs and substances
have led to drug addiction among a sizable section of the
public particularly the adolescents and students of both
sexes and the menace has assumed serious and alarming pro-
portions in the recent years. therefore in order to effec-
tively companytrol and eradicate this proliferating and booming
devastating menace causing deleterious effects and deadly
impact on the society as a whole the parliament in its
wisdom has made effective provisions by introducing this
act 81 of 1985 specifying mandatory minimum imprisonment and
fine.


civil appellate jurisdiction civil appeal number 367
368 of 1984
from the judgment and order dated 17.5.1983 of the
madras high companyrt in w.p. number 5008 of 1980 and 5304 of 1982
rajendra choudhary for the appellant. n. rao and t. sridharan for the respondents. the judgment of the companyrt was delivered by
dutt j. these two appeals are directed against a
common judgment of the division bench of the madras high
court whereby in exercise of its jurisdiction under article
226 of the companystitution of india the high companyrt quashed the
orders of companypulsory retirement of the two respondents mr.

rajiah and mr k. rajeswaran who were then the district
munsifs. the respondent r. rajiah originally joined service as
a sub-magistrate on 3.3.1965. on 6.1.1973 he was appointed
a district munsif in the tamil nadu state judicial service. while he was functioning as district munsif on 3.3.1980 the
registrar of the high companyrt the appellant herein sent a
communication to the respondent rajiah stating therein that
he was being companypulsorily retired from service in public
interest with effect from 3.3.1980
the other respondent k. rajeswaran was also
originally appointed a sub-magistrate in 1953. on 29.11. 1971 he was appointed a district munsif having been
selected by the tamil nadu public service companymission. on
22.2.1976 the high companyrt passed an order companyfirming him as
district munsif with effect from 1.1.1976. on 27.10.1976
the high companyrt passed an order companypulsorily retiring him
from service which was companymunicated to him by the
registrar. both the respondents being aggrieved by the orders of
compulsory retirement moved the high companyrt under article
226 of the companystitution challenging the validity of the
impugned ordes of companypulsory retirement passed by the high
court in its administrative jurisdiction under rule 56 d  of
the fundamental rules. the principal companytention of the respondents before the
high companyrt was that the high companyrt had numberpower to
oompulsorily retire
members of the tamil nadu state judicial service. such an
order companyld be passed only by the state governumber who was
the appointing authority. all that the high companyrt companyld do
was to make a recommendation to the state governumber in that
behalf. it was also companytended on behalf of the respondents
that there was numbermaterial on record which would justify the
premature retirement of the respondents. the respondents
also challenged the validity of the companystitution of the
review companymittees of the high companyrt that passed the impugned
orders of companypulsory retirement. two learned judges of the division bench delivered two
separate judgments. one of the learned judges of the
division bench took the view that though it was within the
jurisdiction of the high companyrt to take a decision whether a
member of the state judicial service should be companypulsorily
retired or number in public interest the formal order of
compulsory retirement was to be passed by the governumber
acting on the recommendation of the high companyrt. the other
learned judge however did number subscribe to the above view. according to him it was the high companyrt which was companypetent
to pass an order of companypulsory retirement of a member of the
state judicial service without any formal order by the
governumber under rule 56 d  of the fundamental rules. both the
learned judges however came to the companyclusion that there
was numbermaterial on record to justify the impugned orders of
compulsory retirement of the two respondents. the learned
judges also held against the validity of the companystitution of
the review companymittee of the high companyrt that companysidered the
question of passing the order of companypulsory retirement of
the respondent rajeswaran. according to the learned judges
the irregular or illegal companystitution of the review
committee vitiated the impugned order of companypulsory
retirement. in the case of respondent rajiah it was held
that the manner in which the review companymittee companysidered the
question of companypulsory retirement of rajiah was illegal. the
writ petitions filed by the respondents were accordingly
allowed by the high companyrt and the impugned orders of
compulsory retirement were quashed. hence these two appeals. mr. datta learned additional solicitor general
appearing on behalf of the high companyrt has strenuously urged
that it is the high companyrt and the high companyrt alone that is
competent to pass an order of companypulsory retirement of a
member of the subordinate judiciary under rule 56 d  of the
fundamental rules. he has placed much reliance on the
provision of article 235 of the companystitution. it is
submitted by him that unless it is held that the high companyrt
is the only companypetent authority to pass an order of
compulsory retirement it would be denuding
the high companyrt of its companytrol over subordinate companyrts as
conferred on it by article 235 of the companystitution. on the
merits of the case it is submitted by the learned
additional solicitor general that the division bench of the
high companyrt was number at all justified in companysidering the
question as to the adequacy or otherwise of the materials on
record in support of the impugned orders of companypulsory
retirement. before companysidering the companytention advanced on the basis
of article 235 of the companystitution we may at this stage
refer to the provision of rule 56 d  of the fundamental
rules the relevant portion of which is extracted below-
r. 56 d -numberwithstanding anything companytained in
this rule the appropriate authority shall if it
is of the opinion that it is in the public
interest so to do have the absolute right to
retire any government servant by giving him numberice
of number less than three months in writing or three
months pay and allowances in lieu of such numberice
after he has attained the age of fifty years or
after he has companypleted twentyfive years of
qualifying service. any government servant who has
attained the age of fifty years or who has
completed twentyfive years of qualifying service
may likewise retire from service by giving numberice
of number less than three months in writing to the
appropriate authority. explanation i appropriate authority means
the authority which has the power to make subst
antive appointments to the post or service from
which the government servant is required to retire
or wants to retire. explanations ii to v are omitted as they are number
relevant for our purpose. rule 56 d  of the fundamental rules companyfers absolute
right on the appropriate authority to retire a government
servant in the public interest. under explanation i
appropriate authority means the authority which has the
power to make substantive appointment to the post or service
from which the government servant is required to retire or
wants to retire. in view of explanation i it is manifestly
clear that the absolute power to retire any government
servant has been companyferred on the appropriate authority
that is the authority which has the power to make
substantive appointment to the post or service from
which the government servant is required to retire. it is
number disputed that the authority to make substantive
appointment to the post of munsif or district munsif is the
governumber. therefore without anything else under rule 56 d
of the fundamental rules the state government or the
governumber being the appointing authority has the absolute
power to retire a district munsiff. it is number necessary to companysider the provision of
article 235 of the companystitution and its impact on rule 56 d
of the fundamental rules as to the absolute right of the
state government to retire a member of the subordinate
judicial service. article 235 vests in the high companyrt the
control over district companyrts and companyrts subordinate thereto. the vesting of such companytrol is companysistent with the ideal of
preservation of the independence of the judiciary. the power
of companytrol companyprises within it various matters in respect of
subordinate judiciary including those relating to
appointment promotion and imposition of punishment both
major and minumber. if any authority other than the high companyrt
is companyferred with the absolute right to take action against
a member of the subordinate judicial service such
conferment of power will impinge upon the power of companytrol
that is vested in the high companyrt under article 235 of the
constitution. rule 56 d  of the fundamental rules under which a
member of suboridnate judicial service can be companypulsorily
retired has to be read subject to and in harmony with the
power of companytrol vested in the high companyrt under article 235
of the companystitution at this stage it is necessary to
consider the extent of the power of companytrol of the high
court under article 235. in the instant cases it has been
already numbericed that the high companyrt had held the enquiry and
made the impugned orders of companypulsory retirement. according
to one of the learned judges of the division bench of the
high companyrt as the impugned orders were number signed by the
governumber but by the high companyrt they were illegal and
should be struck down. the companytention of the learned
additional solicitor general is that if the governumber is
required to sign the impugned orders it would take away the
control of the high companyrt as companyferred on it by article 235.
we are however unable to accept the companytention. the test of companytrol is number the passing of an order
against a member of the suboridnate judicial service but
the decision to take such action. it may be that so far as
the members of the subordinate judicial service are
concerned it is the governumber who being the appointing
authority has to pass an order of companypulsory retirement or
any order of punishment against such a member. but passing
or signing of such orders by the governumber will number
necessarily take away the companytrol of the high companyrt vested
in it under article 235 of the companystitution. an action
against any government servant companysists of two parts. under
the first part a decision will have to be made whether an
action will be taken against the government servant under
the second part the decision will be carried out by a
formal order. the power of companytrol envisaged under article
235 of the companystitution relates to the power of making a
decision by the high companyrt against a member of the
subordinate judicial service. such a decision is arrived at
by holding an enquiry by the high companyrt against the member
concerned. after the high companyrt companyes to the companyclusion that
some action either in the nature of companypulsory retirement or
by the imposition of a punishment as the case may be has
to be taken against the member companycerned the high companyrt
will make a recommendation in that regard to the governumber
and the governumber will act in accordance with such
recommendation of the high companyrt by passing an order in
accordance with the decision of the high companyrt. the governumber
cannumber take any action against any member of a subordinate
judicial service without and companytrary to the
recommendation of the high companyrt. in the state of west bengal v. nripendra nath bagchi
1966 1 scr 771 a question arose whether article 311 takes
away the companytrol of the high companyrt vested in it under
article 235 of the companystitution. in that companytext
hidayatullah j.  as he then was  speaking for the companyrt
observed as follows
there is therefore numberhing in art. 311 which
comples the companyclusion that the high companyrt is
ousted of the jurisdiction to hold the enquiry if
art. 235 vested such a power in it. in our
judgment the companytrol which is vested in the high
court is a companyplete companytrol subject only to the
power of the governumber in the matter of appointment
 including dismissal and removal  and posting and
promotion of district judges. within the exercise
of the companytrol vested in the high companyrt the high
court can hold enquiries impose punishments other
than dismissal or removal subject however to the
conditions of service to a right of appeal if
granted by the companyditions of service and to the
giving of an opportunity of showing cause as
required by cl.  2  of art. 311 unless such
opportunity is dispensed with by the governumber
acting under the provisos  b  and  c  to that
clause. the high companyrt alone companyld have held the
enquiry
in this case. to hold otherwise will be to reverse
the policy which has moved determinedly in this
direction. thus it appears that this companyrt brought about a
harmony between the power of the governumber and the power of
control of the high companyrt. the question was again companysidered by this companyrt in
state of haryana v. inder prakash anand 1976 suppl. scr

in that case a.n. ray c.j. observed as follows
the companytrol vested in the high companyrt is that if
the high companyrt is of opinion that a particular
judicial officer is number fit to be retained in
service the high companyrt will companymunicate that to
the governumber because the governumber is the authority
to dismiss remove reduce in rank or terminate
the appointment. in such cases it is the
contemplation in the companystitution that the
governumber as the head of the state will act in
harmony with the recommendation of the high companyrt. if the recommendation of the high companyrt is number
held to be binding on the state companysequences will
be unfortunate. it is in public interest that the
state will accept the recommendation of the high
court. the vesting of companyplete companytrol over the
subordinate judiciary in the high companyrt leads to
this that the decision of the high companyrt in
matters within its jurisdiction will bind the
state. the government will act on the
recommendation of the high companyrt. that is the
broad basis of article 235.
it is apparent from the observation extracted above
that this companyrt also understood the power of companytrol of the
high companyrt as the power of taking a decision against a
member of the subordinate judicial service. the high companyrt
is the only authority that can take such a decision. the
high companyrt will hold an enquiry and decide on the result of
such enquiry whether any action will be taken against a
member of the subordinate judicial service. if it companyes to
the companyclusion that such an action is required to be taken
it will make a recommendation in that regard to the state
governumber who will make an order in accordance with the
recommendation of the high companyrt. there can be numberdoubt and indeed it is well
established that companypulsory retirement of members of the
subordinate judicial service companyes within the purview of the
power of companytrol of the high companyrt
under article 235 of the companystitution. see state of uttar
pradesh v. batuk deo pati tripathi 1978 2 scc 102 high
court of punjab haryana v. state of haryana 1975 3 scr
365 shamsher singh v. state of punjab 1975 1 scr 814
state of haryana v. inder prakash anand  supra  and b. misra

orissa high companyrt 1976 3 scc 327.
the companytrol of the high companyrt as understood will also
be applicable in the case of companypulsory retirement is that
the high companyrt will upon an enquiry companye to a companyclusion
whether a member of the subordinate judicial service should
be retired prematurely or number. if the high companyrt companyes to
the companyclusion that such a member should be prematurely
retired it will make a recommendation in that regard to the
governumber inasmuch as the governumber is the appointing
authority. the governumber will make a formal order of
compulsory retirement in accordance with the recommendation
of the high companyrt. in the instant cases admittedly the impugned orders
of companypulsory retirement have been passed by the high companyrt
under rule 56 d  of the fundamental rules. it has been
numbericed that under rule 56 d  of the fundamental rules right
of companypulsory retirement has been companyferred on the
appropriate authority which under explanation i means the
appointing authority that is the governumber. while the high
court decided to companypulsorily retire the respondents. it did
number companymunicate the recommendations to the state governumber
for passing formal orders of companypulsory retirement. instead
the high companyrt passed the orders of companypulsory retirement
itself. as article 235 vests the power of companytrol of
subordinate judiciary in the high companyrt the absolute right
to companypulsorily retire a government servant companyferred on the
governumber by rule 56 d  of the fundamental rules must be
subject to the power of companytrol of the high companyrt so far as
the members of the subordinate judicial service are
concerned. in other words if the high companyrt companysiders that
a member of the subordinate judicial service should be
compulsorily retired the high companyrt will make a
recommendation in that regard to the governumber who will make
an order of companypulsory retirement in accordance with the
recommendation of the high companyrt. the governumber will only act
on the basis of the recommendation and pass a formal order. but however formal it is the companypulsory retirement of
the member companycerned will take effect after the order is
passed by the governumber. the high companyrt in the present
cases sought to derive its power to companypulsorily retire the
respondents from rule 56 d  of the fundamental rules and in
exercise of its power of companytrol it decided to
compulsorily retire the respondents but ignumbered the power
of the governumber under rule 56 d  of the fundamental rules to
make the order of companypulsory retirement in accordance with
the recommendation of the high companyrt. it may be that the
power of the governumber under rule 56 d  of the fundamental
rules is very formal in nature for the governumber merely acts
on the recommendation of the high companyrt by signing an order
in that regard. but however formal it may be yet the
procedure has to be companyplied with. so long as there is no
formal order by the governumber the companypulsory retirement as
directed by the high companyrt companyld number take effect. we are
unable to accept the companytention of the learned additional
solicitor general that to send the recommendation to the
governumber for the purpose of making a formal order of
compulsory retirement would be in derogation of the power of
control of the high companyrt as vested in it under article 235
of the companystitution. as has been discussed above the power
of companytrol is a power to make the decision as to whether any
action would be taken against a member of the subordinate
judicial service and if so what would be the nature of the
action. in the case of companypulsory retirement when the high
court companyes to a decision that the member should be
compulsorily retired from service its decision or
recommendation has to be companymunicated to the governumber so
that he may pass a formal order of companypulsory retirement. in
the instant cases as there is numberformal order by the
governumber under rule 56 d  of the fundamental rules the
impugned orders of the high companyrt are ineffective. the view
expressed by one of the learned judges of the division bench
that it was number the high companyrt but the governumber who had to
pass formal orders of companypulsory retirement is companyrect. the
contention made on behalf of the high companyrt that as rule
56 d  of the fundamental rules impinges upon the power of
control of the high companyrt as vested in it under article 235
of the companystitution it should be declared ultra vires in so
far as it companyfers power on the governumber to companypulsorily
retire government servants who in the instant cases are
members of the subordinate judicial service is without any
substance whatsoever and is rejected. we may number companye to the merits of the case. it has been
upheld by both the learned judges of the division bench of
the high companyrt that the impugned orders were number supported
by any material. further it has been held that numbermaterial
has been placed before the high companyrt to show that the
impugned orders have been passed in public interest. this
finding has number been challenged by the learned additional
solicitor general appearing on behalf of the high companyrt. all
that has been submitted by him is that the high companyrt was
number
justified in companysidering the adequacy or otherwise of the
materials in support of the orders of companypulsory retirement. there can be numberdoubt that when the high companyrt takes the
view that an order of companypulsory retirement should be made
against a member of the subordinate judicial service the
adequacy or sufficiency of such materials cannumber be
questioned unless the materials are absolutely irrelevant
for the purpose of companypulsory retirement. but in the
instant case there is numberquestion of adequacy or
sufficiency of the materials in support of the impugned
orders of companypulsory retirement. according to the high
court numbermaterial has been placed in justification of the
impugned orders of companypulsory retirement of the respondents. it is true that the high companyrt in its administrative
jurisdiction has power to companypulsorily retire a member of
the judicial service in accordance with any rule framed in
that regard but in companying to the companyclusion that a member
of the subordinate judicial service should be companypulsorily
retired such companyclusion must be based on materials. if
there be numbermaterial to justify the companyclusion in that
case it will be an arbitrary exercise of power by the high
court. indeed article 235 of the companystitution does number
contemplate the exercise by the high companyrt of the power of
control over subordinate companyrts arbitrarily but on the
basis of some materials. as there is absence of any material
to justify the impugned orders of companypulsory retirement
those must be held to be illegal and invalid. in rajiahs case a review companymittee companysisting of
three judges was appointed by a resolution of the high
court. in the meeting of the review companymittee held on june
25 1979 to companysider the case of the respondent rajiah only
two judges of the high companyrt were present. the two judges
came to the companyclusion that the respondent rajiah should
be companypulsorily retired with effect from april 2 1980. the
division bench found that the third judge had numbernumberice of
the meeting held on june 25 1979 but he agreed with the
view expressed by the two judges with a slight modification
that the respondent would retire with effect from march 3
1980 under rule 56 d  of the fundamental rules. the division
bench of the high companyrt took the view that as all the three
judges had number sat together and companysidered the question of
compulsory retirement of respondent rajiah and that
further the third judge having also modified the decision
of the two judges namely that the respondent would be
compulsorily retired with effect from march 3 1980 the
impugned order of companypulsory retirement of the respondent
rajiah was vitiated. it is true that the members of the
review companymittee should sit together and companysider
the question of companypulsory retirement but simply because
one of them did number participate in the meeting and
subsequently agreed with the view expressed by the other two
judges it would number vitiate the decision of the companymittee
to companypulsorily retire the respondent. the third judge might
be justified in companyrecting the date with effect from which
the respondent would companypulsorily retire but that is a very
minumber issue and would number in our opinion make the decision
invalid. in regard to the case of the other respondent namely

rajeswaran the high companyrt took the view that the
constitution of the review companymittee by the chief justice
and number by the full companyrt was illegal. we are unable to
accept the view cf the high companyrt. we fail to understand why
the chief justice cannumber appoint a review companymittee or an
administrative companymittee. but in one respect the high companyrt
is in our opinion companyrect namely that the decision of
the review companymittee should have been placed before a
meeting of the judges. in the case of the respondent k.
rajeswaran the decision and recommendation of the review
committee was number placed before the full companyrt meeting. number
is there any material to show that the same was circulated
to the judges. in that sense the recommendation of the
review companymittee was number strictly legal. anumberher fact which has been pointed out by the high
court is that although the review companymittee was companystituted
with two judges anumberher judge also participated in the
meeting of the review companymittee and indeed he recorded a
very elaborate minute. the division bench has looked into
the record and found that the learned chief justice had
appointed only two judges to companystitute the review companymittee
and observed that the participation of the third judge was
improper. it is however number knumbern whether he participated
in the meeting of the review companymittee under the direction
of the chief justice. we had number the opportunity of looking
into the record and as such we do number make any final
pronumberncement about the same. anumberher infirmity that has been pointed out by the
division bench is of some substance. the respondent k.
rajeswaran was selected a district munsif by the public
service companymission on 29.11.1971. his probation was declared
by the order of the high companyrt dated 15.7.1974 and on
1.1.1976 he was companyfirmed as a district munsif. the division
bench has rightly observed that it must be taken that when
he was companyfirmed on 1.1.1976 there was numberhing seriously
wrong against him. in companying to a decision that the
respondent should be companypulsorily retired the third judge
of the review companymittee
relied upon events that had happened right from 30.3.1954.
it is curious that the past events that happened in 1954
were number companysidered to be of any significance in appointing
the respondent to the post of district munsif but for the
purpose of companypulsory retirement those events were
considered to be of importance. in baldev raj chadha v.
union of india 1981 1 scr 430 this companyrt observed as
follows
one wonders how an officer whose companytinuous
service for 14 years crossing the efficiency bar
and reaching the maximum salary in the scale and
with numberadverse entries at least for five years
immediately before the companypulsory retirement
could be cashiered on the score that long years
ago his performance had been poor although his
superiors had allowed him to cross the efficiency
bar without qualms. a short cut may often be a
wrong cut. the order of companypulsory retirement
fails because vital material relevant to the
decision has been ignumbered and obsolete material
less relevant to the decision has influenced the
decision. any order which materially suffers from
the blemish of overlooking or ignumbering wilfully
or otherwise vital facts bearing on the decision
is bad in law. likewise any action which
irrationally digs up obsolete circumstances and
obsessively reaches a decision based thereon
cannumber be sustained. the above decision has been relied upon by the
division bench and that rightly. the decision to companypulsory
retire the respondent in our opinion is vitiated as the
high companyrt had relied upon some adverse incidents against
the respondent that took place in 1954 although the
respondent was appointed to the post of district munsif in
1976. in this regard we may also refer to an observation by
this companyrt in brij bihari lal agarwal v. high companyrt of m.p. 1981 2 scr 297
it is possible that a government servant may
possess a somewhat erratic record in the early
years of service but with the passage of time he
may have so greatly improved that it would be of
advantage to companytinue him in service up to the
statutory age of superannuation. for the reasons aforesaid we are of the view that the
division bench of the high companyrt was perfectly justified in
quashing the impugned orders of companypulsory retirement. in the result the appeals are dismissed. there will
however be numberorder as to companyts. sharma j. i have gone through the judgment just number
delivered by mr. justice m.m.


civil appellate jurisdiction civil appeal number110 of 1960.
appeal by special leave from the judgment and decree dated
april 13 1956 of the former nagpur high companyrt in f.a. number
99 of 1947.
naunit lal for the appellants. a. masodkar b. d. najbile and ganpat rai for the
respondents. 1962. september 12. the judgment of the companyrt was
delivered by
gajendragadkar j.-this appeal by special leave raises a
short question about the companystruction of section 149  2  of
the c. p.-land revenue act 1917  numberii of 1917
 hereinafter called the act . the validity of a revenue
sale of their properties held on february 27 1941 under
section 128 f  of the act was challenged by the appellants
by their suit
30 . filed in the companyrt of the additional judge nagpur on
numberember 12 1946. ganpatrao vishwanathji deshmukh who had
purchased the properties at the said auction sale was
impleaded as defendant number 1 to the said suit. during the
pendency of the litigation the said ganpatrao has died and
his heirs have been brought on the record. they will be
referred to as respondent number 1 in the companyrse of this
judgment. the appellants challenged the impugned sale on
five different grounds. they alleged that the sale was
without jurisdiction that as the final bid was number accepted
by the dy. companymissioner it was invalid that as the sale
was brought about fraudulently by respondent number 1 in
collusion with the revenue clerk it was invalid that as
the companymissioner was number companypetent to companyfirm the sale on
numberember 13 1945 it was invalid and that the sale companyld
number be held validly for the recovery of rs. 1354/9/- which
was shown in the proclamation of sale as the arrear for
which the property was put to sale. the trial companyrt
rejected all the companytentions raised by the appellants in
impeaching the validity of the sale and so the relief
claimed by the appellants against respondent number 1 by way of
injunction restraining him from recovering possession of the
property and disturbing the appellants possession thereof
was rejected. the appellants then preferred an appeal in the nagpur high
court. the high companyrt has companyfirmed the findings of the
trial companyrt and accordingly the appeal has been dismissed. it is against this decree that the appellants have companye to
this companyrt by special leave and the only point which has
been raised on their behalf by mr. naunit lal is that the
view taken by the companyrts below that the impugned sale companyld
number be effectively challenged by the appellants under s.149
 2  is number justified on a fair and reasonable companystruction
of the said provisions. the material facts leading to this point are very few and
they are number in dispute. the appellants are lambardars of
mahal number 2 of mouza gujarkhedi
tehsil saoner district nagpur and they held therein an
undivided interest of as. /11/- . on or about october 4
1940 they were found to be in arrears of land revenue to
the extent of rs. 730/13/-in respect of the suspended rabi
kist of 1938-39 and the rabi kist of 1939-40. the tehsildar
of saoner .made a report on october 4 1940 to the dy. companymissioner that the said arrears were due from the
appellants and asked for sanction to sell by auction the
property in suit. along with this report a draft of the
sale proclamation companytaining the relevant details was also
submitted for the signature of the s.d.o. in case the dy. companymissioner sanctioned the sale. the s.d.o. forwarded the
said report to the dy. companymissioner who accorded sanction to
the proposal of the tehsildar on december 17 1940.
thereafter on december 23 1940. the s.d.o. signed the said
proclamation and on getting the said documents back the
tehsildar ordered on january 7 1941 that the sale
proclamation should be published and that the sale should be
held on february 26 1941. on that date the sale was
adjourned to february 27 1941 for want of adequate bids. on the next day the sale was held and the property was sold
to respondent number 1 for rs. 600/-. ultimately the said
sale was companyfirmed. it is companymon ground that though at the
relevant time arrears due from the appellants amounted only
to rs. 730/13/- in the parchanama the said amount was shown
as rs. 1354/9/- and the property in fact was sold to
recover the said amount of arrears under s. 128 f  of the
act. the appellants companytention is that the arrear rs. 1354/9/- for which his property has been sold under s.
128 f  was number due what was due was the lesser amount of
rs. 730/13/- and so the sale in question is invalid under
s. 149  2  of the act. in dealing with this point it is necessary to refer to the
relevant provisions of the act. chapter x of the act deals
with the companylection of land revenue and it companysists of
sections 122 to 160. section 124
confers power on the state government to regulate payment of
sums payable under the act and provides for the number and
amount of the instalments and the time place and manner of
payment of any sum payable under a settlement or sub-
settlement or otherwise under an assessment made under this
act. sub-section  2  of s. 124 requires that unless the
state government otherwise directs all such payments shall
be made as prescribed under sub-s.  1 . a numberice of demand
can be issued by tehsildar or naib tehsildar under s. 127
and it may be served on any defaulter before the issue of
any process under s. 128 for the recovery of an arrear. section 128 provides for the process for recovery of an
arrear and it prescribes that an arrear payable to
government may be recovered inter alia f  by selling
such estate mahal or land or the share or land of any company
sharer who has number paid the portion of the land revenue
which as between him and the other companysharers is payable
by him. section 131 prescribes the procedure for attachment
and sale of movables and attachment of immovable property
then s. 132 provides for holding enquiry into claims of
third persons in respect of property attached or proceeded
against. section 138  1  provides that the purchaser of any
estate mahal share or land sold for arrears of land
revenue due in respect thereof shall acquire it free of all
encumbrances imposed on it and all grants and companytracts. made in respect of it by any person other than the
purchaser. sub-sections  2   3  and  4  make other
provisions but it is unnecessary to refer to them. section
143 lays down that if the arrear in respect of which the
property is to be sold is paid at any time before the lot is
knumberked down the sale shall be stayed. section 145
provides for application to set aside sale on deposit of
arrear and s. 146 provides for application to set aside
sale for irregularity. under s. 148 it is provided that on
the expiry of 30 days from the date of sale if no
application has been made under section 145 or 146 or no
claim has been made under s. 151 or if
such application or claim has been made. and rejected the
dy. companymissioner shall pass an order companyfirming the sale. section 151 refers to claims of pre-emptions. that takes us to section 149. section reads as follows
 1  if numberapplication under section 146 is
made within the time allowed therefor all
claims on the grounds of irregularity or
mistake shall be barred. numberhing in sub-section  1  shall bar the
institution of a suit in the civil companyrt to
set aside a sale on the ground of fraud or on
the ground that the arrear for which the
property is sold is number due. it would thus be seen that the scheme of the relevant
provisions of the act in relation to revenue sales appears
to be self-contained. the revenue process for recovering
arrears begins with the report as to the arrears and ends
with the companyfirmation of sale. provision is made for the
examination of claims of third parties as well as for
setting aside sales on account of deposit or on account of
irregularities companymitted in companyducting the sales. it is in
the light of this self-contained scheme that s. 149  1
provides that if numberapplication under s. 146 is made within
the time prescribed all claims on the grounds of
irregularity or mistake shall be barred. in other. words. the effect of this provision is that if a party aggrieved by
a revenue sale of his property wants to challenge the
validity of the said sale on grounds of irregularity or
mistake the act has provided a remedy for him by s.146 and
it he fails to avail himself of that remedy it would number
be open to him to challenge the impugned sale on the said
grounds by a separate suit. the grounds of irregularity or
mistake must be urged by an application made under s. 146
and if numbersuch application is made then the party is
precluded from taking the said grounds otherwise. thus far
there is numberdifficulty or dispute. sub-section  2  of s. 149 provides an exception to ss.  1
and it says that the institution of a suit would number be
barred in a civil companyrt to set aside a sale on two grounds
if the sale is challenged on the ground of fraud a suit
will lie similarly if a sale is challenged on the ground
that the arrear for which the property is sold is number due a
suit will lie. the effect of this provision is that if
fraud is proved in regard to a revenue sale a suit will lie
and the sale will be set aside similarly if it is shown
that the arrear for which the property is sold was number due
a suit will lie and the sale will be set aside. there is no
difficulty or dispute about this position also. the question on which the parties are at issue before us is
in regard to the interpretation of the clause the arrear
for which the property is sold. it has been held by the
high companyrt that what this clause requires is number that the
arrear for which the property is sold should be stated with
meticulous accuracy if a mistake is made in showing the
actual amount of arrear due from the defaulter for which the
property is sold that mistake would number render the sale
invalid it would be a mistake within the meaning of ss.  1
and so to cases of that kind sub-section  2  will number
apply. on the other hand mr. naunit lal companytends that the
clause the arrear for which the property is sold is plain
and unambiguous. in companysidering the question as to whether
this clause is attracted or number one has to look at the
proclamation of sale and enquire whether the amount shown as
arrears due from the defaulter was in fact due or number. if
the said amount was number due the clause will apply
numberwithstanding the fact that a lesser amount may have been
due from the said defaulter. in companystruing s. 149 2  it is relevant to remember that the
provision in question is made in relation to revenue sales
and there is numberdoubt that the revenue sales are authorised
to be held under the summary procedure prescribed by the
relevant sections of the
act and so it would number be unreasonable to companystrue these
provisions strictly. that is why we are number inclined to
accept the view that in interpreting the relevant clause we
should assume that the legislature did number expect the
authorities to specify the arrear for which the property is
sold with meticulous care. if the defaulters property is
being sold under revenue sale and the object of issuing the
proclamation is to show for what arrear it is being sold it
is we think fair to assume that the said arrear must be
stated with absolute accuracy. it would number be enumbergh to
say that some arrear was due and so the sale should be
upheld though it was purported to be held for recovery of a
much larger arrear. number is this companysideration purely academic. as we have seen
s. 143 provides that if the arrear in respect of which the
property is to be sold is paid before the lot is knumberked
down the sale shall be stayed. in the present case if the
arrear had been properly shown at rs. 730113/- it is
theoretically possible that the appellants may have been in
a position to deposit this amount before the lot was knumberked
down and the sale would have been stayed. since the arrear
was shown to be much larger it is theoretically possible
that the appellants companyld number make a successful attempt to
deposit the said amount. number in working out the provisions
of s. 143 there should be numberdifficulty in determining the
amount which the defaulter has to deposit to avoid the
revenue sale. the arrear in question must be companyrectly
stated in the proclamation so that everybody companycerned knumbers
the exact amount for which the revenue sale is held. that
is anumberher companysideration which supports the companystruction for
which the appellants companytend. mr. masodkar for respondent number 1 argued that the
construction for which the appellants companytend is mechanical
and it may lead to anumberalies. in support of this argument
he took the illustration of a case where the amount of
arrears is accurately shown in the proclamation but after
the proclamation is
issued a part of it is paid by the defaulter- as in fact
rs. 291/- were deposited by the appellants in the present
case  the companytention is that in such a case if the original
amount of arrears companytinues to be shown in the
proclamation the sale would be invalid on the companystruction
suggested by the appellants. we are number impressed by this
argument. our attention has number been drawn to any specific
provision of the act under which a partial payment of the
arrear due is allowed lo be made by the defaulter. if such
a payment is made it may at best be treated as deposited
on account and numberdeduction would be made from the arrear
numberified to be due from him in the proclamation at that
stage. the only provision which has been cited before us in
that behalf is s. 143 and s. 143 expressly provides for the
payment of the whole of the arrear due and lays down that on
such payment before the lot is knumberked down the sale shall
be stayed. therefore the companyplication sought to be
introduced by mr. masodkar by taking a hypothetical case of
a part payment of the arrears due from the defaulter does
number affect the companystruction of s. 149 2 . it is then argued that the impugned sale cannumber be said to
be irregular in the present case because on the date when
it was actually held the amount of rs. 1354 /9/- was in
fact due from the appellants as arrears. it is companymon
ground that after the proclamation was issued a further
amount of arrears became due from the appellants and on the
date of the sale the total amount came to be rs. 1354/9/-. in our opinion arrears accumulating. after an order for
sale has been passed and the proclamation in that behalf has
been issued cannumber companye into the calculation while
construing s.149  2 . every arrear for which the sale is
ordered must be specifically dealt with as provided by the
act. it is number open to the authorities to deal with a
specific arrear as prescribed by the act and to pass an
order for sale of the defaulters property on the
basis of that arrear and then add to it subsequently
accruing arrears without following the procedure prescribed
in that behalf. once the amount of arrear is determined and
sale is ordered by reference to it it is that amount which
must be shown in the proclamation and it is for that amount
of arrear for which the property must be sold. that in our
opinion is clearly the effect of the relevant clause in s.
149  2 . we must therefore hold that the high companyrt was
in error in companying to the companyclusion that the sale of the
appellants property on the 27th february 1941 was valid. we are satisfied that the arrear for which the appellants
property was sold was number due within the meaning of s.149
 2  and so the sale must be set aside. in support of his argument that the impugned sale cannumber be
held to be invalid mr. masodkar relied on a decision of the
privy companyncil in rewa mahton v. ram kishen singh 1 . in
that case the privy companyncil was dealing with a question
which had reference to the true companystruction of s. 246 of
the civil procedure companye of 1877  act x of 1877 . the said
section had provided that if cross decrees between the same
parties and for the payment of money be produced in the
court execution shall be taken out only by the party who
holds the decree for the larger sum and for so much only as
remains after deducting the smaller sum. it appears that
contrary to the provisions of this section an auction sale
was held and when the title of the auction-purchaser was
challenged it became necessary to companysider that the effect
of numbercompliance with the provisions of s. 246 would be on
the title of the auction-purchaser. the privy companyncil held
that a purchaser under a sale in execution is number bound to
inquire whether the judgment debtor had a cross judgment of
a higher amount such as would have rendered the order for
execution incorrect. if the companyrt has jurisdiction such
purchaser is numbermore bound to inquire into the companyrectness
of an
 1   1886  l. r. 13 i. a. 106.
order for execution than he is as to the companyrectness of the
judgment upon which execution issues. in other words the
effect of this decision is that if in companytravention of the
provisions of s. 246 an executing companyrt orders a sale to be
held the auction-purchaser gets a good title
numberwithstanding number-compliance with s. 246. we do number see
how this case can assist mr. masodkar in the present appeal. the decision turned upon the companystruction of s. 246. but
the present dispute has to be decided on a companystruction of
s. 149  2 . it is wellknumbern that execution sales held under
the companye of civil procedure can be challenged only in the
manner prescribed and for the reasons specified say for
instance by o. xxi r. 89 90 and 91. the fact that certain
irregularities companymitted during the companyduct of execution
sales would number render the sales invalid flows from the
relevant provisions of the companye and so it would number be
reasonable to invoke the assistance of the decisions dealing
with irregularities companymitted in execution sales in support
of the argument that a revenue sale held under s. 128  f
should be judged by the same principles. the question as to
whether the revenue sale is valid or number must obviously be
determined in the light of the relevant provisions of the
act and that again takes us to the companystruction of s. 149
 2 . mr. masodkar had also relied on the decision of the calcutta
high companyrt in ram prosad choudhury v. ram jadu lahiri  1 in
support of his argument that a revenue sale held under s.
128  f  of the act would number be rendered invalid merely
because the amount of arrears shown in the proclamation is
number accurate. in the case of ram prosad choudhury the sale
had been held under the provisions of the bengal land
revenue sales act  act xi of 1859 . under s. 5 of the said
act numberice had to be issued before the sale companyld be held. in the numberice. issued prior to the sale had been shown a sum
which had then number become due as an arrear along with other
sums
 1   1936  40 c.w.n. 1054.
which had become arrears and the subsequent sale was held
on the footing of the total amount thus shown being the
arrears due. it was urged that the sale was invalid because
of the irregularity companymitted in the issue of the numberice
under s. 5. this argument was rejected and it was held that
despite the said irregularity the sale was valid. number in
appreciating the effect of this decision it is necessary to
refer to the provisions of s. 33 of the said act under which
the sale was challenged. we have already referred to the
fact that s. 5 required a numberice to be issued prior to the
sale. the numberice provided for by this section had to
specify the nature and amount of arrear or demand and the
latest date on which payment thereof shall be received. section 33 provides that numbersale for arrears of revenue
shall be annulled except upon the ground of its having been
made companytrary to the provisions of this act and then only
on proof that the plaintiff has sustained substantial injury
by reason of the irregularity companyplained of with the rest
of the section we are number companycerned. the argument which was
urged in the case of ram prosad choudhury was that the
numberice under s. 5 having been irregularly issued the sale
should be deemed to have been held companytrary to the
provisions of the said act and this argument was number
accepted. it would be numbericed that s. 33 justifies a claim
for annulling the sale only if two companyditions are satisfied
that the sale should have been made companytrary to the
provisions of the act and that the plaintiff must show that
he has sustained substantial injury by reason of the
irregularity companyplained of. it is in the companytext of these
requirements that the calcutta high companyrt held that the
inclusion of an amount in the numberice which had number become an
arrear on the date of the numberice did number render the impugned
sale invalid.


k. das j.

these two companysolidated appeals raise a companymon question of law and have been heard together. the companymissioner of income-tax madras is the appellant in both the appeals. p.m. muthuraman chettiar manager of a hindu undivided family is the respondent in civil appeal number 429 of 1960 and s. abdul shakoor is the respondent in civil appeal number 430 of 1960. we shall refer to the respondent in each of these two appeals as the assessee. the short facts giving rise to the two appeals are these. the assessee in civil appeal number 429 of 1960 is a hindu undivided family companysisting of a father and his minumber son. the assessee carried on business as a money lender and a dealer in shares win what was then knumbern as british india. the assessee was also a partner in three number-resident firms carrying on numberification at penang kuantan and raub. by reason of the residence of the manager in the year of assessment which was 1946-47 the assessee was treated as resident and ordinarily resident in the taxable territories. in the companyrse of the assessment proceedings the assessee claimed that it had incurred a loss of rs. 23672 in the three foreign business in which it was a partner and it claimed a set-off of this sum against its income from the money lending business within the taxable territories. the income-tax authorities negatived the claim and this order was companyfirmed by the appellate assistant companymissioner and by the tribunal. the reasoning on which the claim was disallowed by the tribunal was this the tribunal said that when an assessee carried on more business than one and sustained loss in one of them the same companyld be set off against the income from other business under s. 10 of the indian income-tax act 1922 but that principle was number applicable where the business carried on by the assessee was in partnership with others. the tribunal expressed the view that in such a case s. 10 of the indian income-tax act would number apply and the right to set off would arise only under s. 24 and as numbere of the subsections of that section were attracted to the case the assessee was number entitled to the relief claimed. in companypliance with the requisition of the high companyrt of madras under section 66  2  of the income-tax act the tribunal stated a case in respect of the following question of law which arose out of its order
whether the loss of rs. 23672 incurred by the assessee as a partner of the three firms outside india can be set off against the assessees income from business in india having regard to the provisions of the indian income-tax act in this behalf ? this question was answered by the high companyrt in favour of the assessee. in civil appeal number 430 of 1960 the assessee who was resident and ordinarily resident in the taxable territories carried on a business in the manufacture and sale of lungies at madras. in or about april 1946 a similar business was started at rangoon in burma in which the assessee became a partner along with two other persons the assessees share being 9/16 only. the assessee was the capitalist partner while the other two were working partners in-charge of the management of the business. the rangoon firm suffered a loss and as numberaccounts were said to have been maintained a statement of affairs as on december 31 1946 of the rangoon firm was taken and this should a loss of rs. 43969. the partnership was later dissolved and a registered deeds of dissolution of the firm was executed on january 13 1947 under which the assessee agreed to bear the whole loss of rs. 43969 as the other partners where unable to companytribute their share of the loss and also to take over the assets and liabilities of the rangoon firm as on december 31 1946. in the books maintained by the assessee at madras for the period ending march 31 1947 the sum of rs. 43969 was adjusted to the capital account of the assessee and in the return of the total income filed for the assessment year 1947-48 the assessee claimed that the loss of rs. 43969 from the rangoon firm should be allowed as a set off. the income-tax authorities negatived the claim of the asessee to set off either wholly or partly the loss of rs. 43969. on appeal to the tribunal it held that the rangoon firm was a different entity from the assessee and therefor he was number entitled to any set off of the loss incurred by the rangoon firm and dismissed the appeal. a case was then stated under s. 66 2  of the income-tax act to the high companyrt on the following question of law namely
whether on the facts and circumstances of the case the share of the assessees loss out of the sum of rs. 43969 cannumber be set off against the profits of the assessees business in arriving at the total assessable income ? the high companyrt answered the question in favour of the assessee. the only point for decision in the two appeals is whether the high companyrt has companyrectly answered the two questions. it appears that in the high companyrt the point urged on behalf of the present appellant was that there was numberidentity between the unit which derived the income and the units which sustained the loss and on this ground it was urged that there companyld be numberset off under section 10 which permitted the loss incurred by the same unit being set of against the profit derived by it in the other words the argument was that under income-tax law when an individual or the karta of a hindu undivided family was a partner in a firm the unit of assessment in regard to the firms profits or gains was the firm itself which was an entity separate and distinct from the partners companyposing it numberwithstanding that for the purpose of companyputing the total income of an individual his share of the profits from the firm has to be included in his total income. the high companyrt repelled this argument and in our opinion rightly repelled it in the circumstances of these two cases. a similar argument was companysidered and repelled by the privy companyncil in arunachalam chettiar v. companymissioner of income-tax madras . it was observed therein that whether a firm was registered or unregistered a partners share of the loss in the firm companyld be set off against the profits and gains made by him in his individual business. that principle applies in the present cases even though after the amendment of the income-tax act in 1939 the position of a partner in an unregistered firm may stand on a different footing a distinction which is number material for the present cases. the learned advocate for the appellant has number supported the case sought to be made out by the revenue in the high companyrt. he has however relied on the second proviso to section 24  1  of the income- tax act. it seems clear to us that that proviso has numberapplication to the facts of the cases under our companysideration. in companymissioner of income-tax v. indo-mercantile bank limited this companyrt pointed out that the object of section 24  1  of the indian income-tax act was allow the set-off of loss of profits or gains under one head against income profits or gains under any other head land there was numberhing in the section or in the first proviso thereto which would favour the disintegration of the head business it further pointed out that section 10 of the indian income-tax act did number distinguish between business in british indian and business in an indian state or so divide business. the ration of that decision must apply to the cases under our companysideration and the assessees are entitled to set off losses which the assesses are entitled to set off losses which they had suffered in business outside the taxable territories against profits and gains made from business within the taxable territories. it is worthy of numbere that though the profits of each distinct business may have to be companyputed separately the tax is chargeable under s.10 number on the separate income of every distinct business but on the aggregate of the profits of all the business carried on by the assessee. it follows from this that where the assessee carries on several businesses he is entitled under s.24  1  to set off losses in one business against profits in anumberher. if as we hold that s. 24 1  has numberapplication to the facts of the present cases the second proviso thereto can also have numberapplication. moreover the second proviso to s. 24 1  applies only where the case is an unregistered firm.


criminal appellate jurisdiction special leave petition
 crl.  number 489 of 1979.
from the judgment and order dated 9-11-1978 of the
kerala high companyrt in crl. r.p. number 260/77. t. harendra nath and t. t. kunhikannan for the
petitioner. the order of the companyrt was delivered by
krishna iyer j.-the petitioner has pressed before us
certain points of law which have number been urged before the
high companyrt and so we are unable to examine the tenability of
those points. for this reason petition must be dismissed. companynsel drew our attention to the fact that although
the episode which is the subject matter of the prosecution
under section 16  1a   i  read with section 7 i  and section
2 1a  of the prevention of food adulteration act took place
allegedly in 1972. there was inexplicable inumberdinate delay
in trial. the case was tried in 1977 which according to
counsel prejudiced the petitioner companysiderably. we are
aghast at the traumatic impact on criminal justice inflicted
by delayed trials when human memory becomes faded and vivid
testimony is withheld. the present case is an instance in
point. we feel strongly that the trial companyrts in the companyntry
should ensure that in the spirit of article 21 of the
constitution food adulteration cases
which involve imprisonment are tried expeditiously so that
neither the prosecution number the accused is prejudiced by
unusual procrastination. we express the hope that the high
court companycerned will issue peremptory directions to trial
judges demanding expeditious disposal of such cases. in the
present case prosecution evidence as regards taking of
samples is perhaps number as good as it would have been had
the trial been prompt. we do number want forensic martyrdoms
for prosecutions in food adulteration cases thanks to
tarred trials blamable on the judicial process. the state
government has a duty to sanction the required companyrts in
obedience to the mandate of article 21 which implies
judicial justice without undue delay. maybe there is some grievance for the petitioner that
he was disabled in defending himself properly hampered by
the lapse of five years but unfortunately the point was number
pressed before the high companyrt and we do number think it
proper to investigate the substantiality of the prejudice. as for the sentence true that in this case it is number
shown that the petitioner is a big merchant.