JUDGMENT <NAME>, J.

(1) This reference concerns the income-tax assessment year 1979-80. The <ORG> referred the following questions of law for consideration of this court :

"1. Whether, on the facts and in the circumstances of the case, <ORG> is justified in holding that the Commissioner of Income-tax (Appeals) is not correct in directing the Income-tax Officer to revalue the opening stock also consistently along with the closing stock when it wants to adopt the method known as 'works cost' method for the assessment year 1979-80 ?

2. Whether, on the facts and in the circumstances of the case, <ORG> is justified in holding that the guarantee commission constitutes revenue expenditure ?"

(2) We may dispose of the second question first, since it is represented that it is covered by the decision of this court in favour of the assessee, viz., Addl. <CITATION> . Having regard to this representation, we answer the second question in the affirmative, i.e., in favour of the assessee and against the <ORG>.

(3) So far as the first question is concerned, a few facts may be noticed : The assessee was valuing its closing stock, in the past years, by what is known as the "total cost" method. In this method, proportionate overheads for administrative expenses, selling expenses and interest in stock valuation were taken into account. While valuing the closing stock for the assessment year under consideration, the assessee found the earlier system to be somewhat unscientific and problematic and, therefore, switched on to what is recognised as the "works cost" system where administrative overheads are not taken into account. While scrutinising the accounts for the assessment year under consideration, the Income-tax Officer went into the question of the closing stock valuation and found that the assessee adopted a different method for valuation of the closing stock. The assessee explained that the change was made for bona fide purposes and it was to replace a somewhat unscientific method of valuation by a more scientific and recognised method of closing stock valuation. The Income-tax Officer did not accept the explanation of the assessee. He valued the closing stock on the basis adopted in the past year and made an addition of the difference in the value of the closing stock. On appeal, the Commissioner of Income-tax (Appeals) examined the question at considerable length and was satisfied that the change in the method of valuation of closing stock was for bona fide purposes. He called for a report from the Income-tax Officer as to whether the closing stock was strictly valued on the basis of the "works cost" method. The Income-tax Officer replied in the affirmative. While thus recording a finding that the assessee did not change its method of valuation of closing stock for any ulterior purpose or for reducing income for income-tax purposes, the Commissioner directed that the opening stock of the relevant accounting year should also be valued on the same "works cost" basis and the difference reckoned after the opening stock was revalued should be added.

(4) The assessee objected to the direction of the Commissioner of Income-tax by filing an appeal before the <ORG>, and submitted that where, on an investigation and inquiry, the <ORG> authorities are satisfied that the change in the method of valuation of closing stock is brought about for bona fide purposes, the <ORG> has no right to interfere with the valuation of the closing stock. The assessee pointed out to the detailed enquiry made by the Commissioner and to the finding recorded by him that the change effected by the assessee was for bona fide purposes. It was also pointed out that the earlier system which was not at all scientific was replaced by the present system which is recognised as acceptable in commercial and accounting circles. In these circumstances, the assessee claims that the direction of the Commissioner of Income-tax to revalue the opening stock of the relevant year also on the "works cost" method is uncalled for.

(5) The <ORG> accepted the assessee's plea and, in particular, it had taken note of the fact that any disturbance in the valuation of the opening stock would have a snowballing effect in the sense that the closing stock of the immediately preceding year would be affected and the computation of profits of that year would have to undergo a change and this process would go on for a number of years. The <ORG> felt that such an exercise is uncalled for, where the <ORG> is satisfied that the assessee has brought about the change for bona fide purposes, and all that was required, the <ORG> decided, was to satisfy that the closing stock valuation was made strictly on the basis of the "works cost" method. In view of the Income-tax Officer's report in the affirmative, the <ORG> held that the direction of the Commissioner of Income-tax to revalue the opening stock also on the same basis was uncalled for. The Commissioner felt aggrieved by the decision of the <ORG> and sought for the present reference and that is how question No. 1 was referred to this court.

(6) We have not the slightest doubt that the view of the <ORG> was correct. In the face of the finding hat the change adopted by the assessee was for bona fide purposes and was not actuated by considerations of reducing the income for income-tax purposes, the <ORG> has no right to interfere with the change in the method of valuation of the closing stock. The <ORG> had referred to a long list of cases supporting the above view and we are in entire agreement with the proposition.

(7) Having regard to the above, the answer to the first question is in the affirmative, i.e., in favour of the assessee and against the <ORG>.

(8) No costs.


PETITIONER: BINOD SINGH Vs. RESPONDENT: DISTRICT MAGISTRATE DHANBAD BIHAR & OTHERS DATE OF JUDGMENT26/09/1986 BENCH: <NAME>, <NAME> (J) BENCH: <NAME>, <NAME> (J) PATHAK, R.S. CITATION: 1986 AIR 2090 1986 SCR (3) 906 1986 SCC (4) 416 JT 1986 561 1986 SCALE (2)531 CITATOR INFO : RF 1987 SC2098 (7,8) F 1988 SC 596 (11) R 1989 SC2027 (20) R 1989 SC2265 (19) R 1989 SC2274 (10) R 1990 SC 516 (9) RF 1990 SC1196 (14) RF 1990 SC1202 (5) D 1990 SC1597 (11) RF 1991 SC1640 (12) ACT: National Security Act , s. 3(2) - Detention order passed- Detenu already in custody in respect of criminal charge before actual service of detention order-Detention order held invalid. HEADNOTE: The respondent passed an order of detention in respect of the appellant under s. 3(2) of the National Security Act 1980, on the ground that the appellant's activities were prejudicial to the maintenance of public order. Several criminal cases were pending against the appellant when the aforesaid order was passed. The appellant had already surrendered in respect of a criminal charge against him before the order was served. He filed a writ petition in <ORG> challenging the detention order, but it was dismissed without any speaking order. Aggrieved by the order of <ORG>, the appellant filed the present criminal appeal by special leave as also a writ petition challenging the aforesaid order of detention on the ground that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail. The service of order of detention on the appellant/ petitioner while he was in jail was futile and useless since such an order had no application under s. 3(2) of the Act. Allowing the writ petition and the appeal in part, ^ HELD: 1. The continued detention of the detenu under the Act is not justified. The order of detention therefore is set aside. However, this will not affect detenu's detention under the criminal cases. If however, the detenu is released on bail in the criminal cases already pending against him, the matter of service of the detention order under the Act may be reconsidered by the appropriate authority in accordance with law. [912 E-F] 906 2. In our constitutional framework, the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. [911 F-G] In the instant case, when the actual order of detention was served upon the detenu the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release was taken into consideration by the detaining authority properly and seriously before the service of the order. If there were cogent materials for thinking that the detenu might be released, then these should have been made apparent. In the affidavits on behalf of the detaining authority though there are indications that transfer of detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of relevant factors. If that is the position then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid, and on relevant considerations the service of the order was not on proper consideration. The order of detention is, therefore set aside. [911 G-H; 912 <CITATION> .,  4 SCR 921 and <CITATION> . and others,  4 SCC 232, relied upon. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 317 of 1986 From the Judgment and order dated 27.2.1986 of <ORG> in C.W.J.C. No. 33 of 1986. With W.P. (Criminal)No. 316 of 1986.

<NAME> and Miss <NAME> for the Appellant/ Petitioner.

<NAME> for the Respondents.

The Judgment of the Court was delivered by <NAME>, J. Criminal Appeal No. 317 of 1986 arises out of the judgment and order of <ORG> and the Writ Petition No. 316 is in respect of the same detenu. Both these challenge the order of detention dated 2nd January, 1986 passed by the respondent no.1. The District Magistrate <NAME> in respect of the petitioner under section 3(2) of the National Security Act, 1980, hereinafter called the 'Act' on the ground that the petitioner's activities were prejudicial to the maintenance of public order. Several criminal cases had been filed against the petitioner between 3rd January, 1983 to 18th February, 1985. On or about 2nd January, 1985 the order of detention was passed on an incident relating to the exchange of fire between two rival groups. The order states the grounds as follows:

1. On 24.12.1985, between 10 and 10.30. A.M. the subject alongwith <NAME>, Gulam, Rambriksha armed with Rifle, gun etc. came in Car No. BHG-9372 on Katras Coal Dump and started indiscriminate firing to kill <NAME> a rival of his calendestine business of coal to establish his criminal superiority in full view of the shopkeepers customers and passers by of the area. <NAME> and his associates who were there also returned the firing in same manner. As a result of this firing one innocent namely <NAME> was killed. The exchange of indiscriminate firing in the main market area of Katras created great panic and alarm in the area. The normal tempo of life was completely disturbed. The people started running helter and skelter for their lives. Shopkeepers put down their shutters. Doors and windows were closed. The vehicular traffic came to halt. This refers to Katras P.S. Case No. 331/85 dated 24.12.85 u/s 149/307/32 IPC /27 Arms Act .

Besides the aforesaid ground the following cases are also referred hereunder as background to show the criminality of the subject.

1. KATRAS P.S. CASE No. 5/83 dated 3.1.83 u/s 147, 341/353/307 I.P.C .

In this case subject and his associates tried to set free the trucks and driver from the police custody by force and when he failed in his attempt he threatened the police officer and CISF Personnel to do away with their lives, C.S.No. 5/83 has already been submitted in this case.

2. <NAME> P.S. Case No. 303/83 u/s 147/148/452/323 IPC .

In this case subject and his associates went to the tailoring shop of <NAME> and asked him to keep his cloths ready by 9.10.83 and on his refusal, he assaulted him in presence of customers and others C.S.No. 196/83 has already been submitted in this case.

3. Jogta P.S. Case No. 22/84 dated 11.3.84 u/s 147/148, 307/326/353/333/324/325 I.P.C ./27 Arms Act .

In this case subject and his associates opened fire on police party who went to apprehend <NAME> absconder under <ORG>. As a result of this indiscriminate firing by him and his associates one <ORG> officer namely <NAME>, received serious head injury and is still incapable to work. Charge sheet No. 25/84 has already been submitted in this case.

4. Jogta P.S. Case No. 9/85 dated 18.2.85 u/s 369, 307/323/ 324/ 176/34 I.P.C ./27 Arms Act .

In this case <NAME>, who was coming in a religious procession on the eve of Shivratri and was dancing in the role of Shiva was compelled by his associates to dance before the marriage party of subject's sister. Sri <NAME>, however, acceded to their request and started dancing. When he was dancing some of the members opened fire on him as a result of which he fell down. The subject and his associates however put his body in his car and fled away. Neither <NAME> nor his body could be traced out till date.

Charge sheet No. 20/85 has already been submitted in this case. (Emphasis supplied)

5. Jogta P.S. Case No. 68/85 dated 1.12.85 u/s 341/34 IPC .

In this case subject threatened <NAME>, General Secretary, <ORG>, Sijua, to do away with his life if he takes out any procession or oppose him.

It is the case of the detenu that the order of detention was made on one incident relating to exchange of fire between two rival groups. A criminal case had been registered in relation to the said incident pursuant to which the petitioner was already in custody. The order of detention though dated 2nd January, 1986 was served on or about 11th January, 1986. It is the case of the appellant/petitioner that the detenu was not served with all the documents referred to and/or relied on. The detenu was served with order of approval of the said order of detention by <ORG>. The petitioner/appellant made representation on 22nd January, 1986 and the petitioner/ appellant was informed that the said representation was rejected. Thereafter the petitioner's appellant's matter was referred to <ORG>. The petitioner/appellant states that he desired that he should be heard in person by <ORG>. The petitioner/appellant submits that he was produced before <ORG> but he was not given any hearing. By letter dated 22nd February, 1986 the petitioner/appellant was informed that <ORG> had confirmed the order of detention. The petitioner/ appellant thereafter filed a writ petition in <ORG> which was dismissed without any speaking order.

The grounds of challenge are all stated in the writ petition as well as special leave petition. The petitioner/ appellant was in detention when the petitioner/appellant was served with the order of detention. There were criminal cases against the petitioner. There was a murder case in respect of Crime No. 331 of 1985. In the said case investigation was in progress and the defence of the petitioner in the murder case was that he was falsely implicated and was not at all concerned with the murder. When the order was passed, the petitioner had not surrendered but when the order was served, the petitioner had already surrendered in respect of the criminal charge against him. At the relevant time the petitioner was undertrial in the said criminal case.

It is the contention of the petitioner/appellant that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail. The service of order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under section 3(2) of the Act.

In the affidavit of the District Magistrate, the detaining authority, it has been stated that the activities of the petitioner's brother and the petitioner have disturbed the normal tempo of life in Katras and Jogta Police Stations in Dhanbad area. The series of offences against the detenu and the manner of their perpetuation, which have been noted before, indicate a calculated move to create panic and fear in the mind of the people. It further appears from the affidavit f f the District Magistrate filed before <ORG> Patna that the petitioner was absconding from the very day of the issuance of the detention order. There is a statement in the order as follows-D "Subject is already in jail. He is likely to be enlarged on bail. Hence detention order served in jail."

According to the District Magistrate when police pressure to apprehend him became heavy, the detenu opted to surrender before the Sub-Divisional Judicial Magistrate on 10th January, 1986 in substantive case to frustrate the service of the detention order. It has been further stated that the service of the detention order had been properly made. Grounds were all indicated. All the documents which formed the basis of detention were supplied to the detenu. His representation, was duly considered and rejected. The grounds stated that there was - indiscriminate firing on 24th December, 1985 on Katras Coal Dump and the petitioner started indiscriminate firing to kill <NAME> a rival of his calendestine business of coal to establish the criminal superiority in full view of the shopkeepers, customers and passers by of the area. The acts alleged created a terror and not only law and order problem but problem of public order. In those circumstances it appears that the grounds for forming the satisfaction for the need for the detention were there, and there was rational nexus between the object of the order as contemplated by the Act and the materials on record. The principles applicable in these types of preventive detention cases have been discussed in the decisions of <NAME> v. State of Maharasthra & Ors., W.P. (crl) No. 2 96/86 with SLP (crl) No. 1265/86 dt. 25.9.86 and <NAME> v. The State of Bihar & Ors. Crl A. 353/86 with W.P. (crl) 27/86 dt. 26.9.86. Judged on the basis of the said principles there is no ground for interference with the order of detention as passed. It, however, appears that after the order of detention was passed and before the actual service of the order of detention, the petitioner was taken into custody. From the affidavit of the District Magistrate it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decision and especially in the decisions, in <CITATION> .,  4 SCR 921 and <CITATION> ,  4 SCC 232 though there was a statement to the effect that the petitioner was in jail and was likely to be enlarged on bail. But on what consideration that opinion was expressed is not indicated especially in view of the fact that the detenu was detained in a murder charge in the background of the facts mentioned before. His application for bail could have been opposed on cogent materials before <ORG>.

In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody of that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified.

It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipso dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration.

It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority.

The order of detention, therefore, is set aside. The writ petition and the appeal are allowed to the extent indicated above. This, how ever, will not affect detenu's detention under the criminal cases. If, however, the detenu is released on bail in the aforesaid criminal cases, the matter of service of the detention order under the Act on the aforesaid materials may be reconsidered by the appropriate authority in accordance with the law. There is no statement in the petition that the detenu is on bail. There will, therefore, be no orders for release of the detenu.

M.L.A. Petition and Appeal allowed.


ORDER <NAME>, J.

1. This is an application filed by the respondent No. 1 seeking dismissal of the election petition asserting that the petitioner was required to present the election petition in English language only and since it has been filed in Hindi language, it was not in accordance with law, the election petition deserved to be dismissed.

2. On 5-2-1999, a learned single Judge of this Court to whom the election petition stood assigned under Section 86(2) of the Representation of the People Act ,1951, after hearing the counsel for the contesting respondent had granted time to the counsel for the petitioner as prayed for to file the objections.

3. A reply to the aforesaid application containing the objections was filed on 10-3-1999 asserting that there was no provision in the Representation of the People Act and the Rules framed thereunder requiring that an election petition should be filed in any particular language. It was further asserted that in the absence of any provision in the Act or rules, the non-compliance of Rule 2 (b) of the High Court Rules could not be a ground for the dismissal of the election petition. Reliance was placed in this connection on an. order passed in Election Petition No. 9 of 1980 (Devilal s/o <NAME> v. <NAME>) decided by a learned single Judge of this Court at <ORG> on 21-2-1981.

4. Since the learned single Judge who had passed the order dated 5-2-1999 has demitted the office, under a fresh order of assignment the election petition stands assigned to me.

5. The learned counsel for the parties were heard on this application before proceeding further with the petition on 30-7-1999.

6. The provisions contained in Section 87(1) of the Representation of the People Act, 1951, stipulate that subject to the provisions of the said Act and of any rules made thereunder, every election petition shall be tried by <ORG>, as nearly as maybe, in accordance with the procedure applicable under the Code of Civil Procedure, 1908.

7. However, Section 4 of the Civil Procedure Code, 1908, provides as follows;

"4. Savings.- (1) In the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."

(2) ... ... ..."

8. In exercise of the powers conferred by Article 225 of the Constitution of India and all other powers including those envisaged under the notification issued by the Chief Justice under Section 51 of the State Re-Organisation Act, 1956, <ORG> had framed the rules relating to the Election Petitions presented before it as provided under the provisions of the Representation of the People Act , 1951. These Rules were published in the Madhya Pradesh Gazette Extraordinary dated 22-2-1967. Rule 2 of the aforesaid Rules provides as under:

"2. Every Election petition shall be-

(a) typewritten or printed fairly and legibly on white foolscap size paper of reasonable quality, one side of the paper only being used, leaving a quarter margin on the left and at least 1/2 Inches open space on the top and bottom of each sheet;

(b) Written in the English language, numbering separately the paragraph thereof;

(c) Couched in proper language, and in conformity with Sections 81 , 82 and 83 of the Representation of the People Act, 1951."

9. Article 329 sub-clause (b) of the Constitution of India read with the provisions of the Representation of the People Act , 1951, as contained in Sections 80 and 87 of the said Act, provides as follows:

"329. Bar to interference by Courts in electoral matters,-

(a) ... ... ...

(b) no election to either <ORG> or to the <ORG> or either <ORG> of the <ORG> of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate <ORG>.

" Section 80 .- Election petitions.-No election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the said Act."

" Section 87 .- Procedure before <ORG>.- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by <ORG>, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits:

(2) ... ... ... 10. It is. therefore, obvious that no election to either the <ORG> or the State legislature can be called in question except

by an election petition presented In such manner as may be provided for, by or under any law made by the appropriate legislature. Since no procedure for presenting an election petition to <ORG> has been provided by the <ORG> in Part VI of the Representation of the People Act, 1951, though Section 80 of the Act comprised in that part prohibits that no election petition unless presented in accordance with the provisions of Part VI of the Act, shall be called in question, it was open to <ORG> to frame the Rules to discharge its constitutional obligation and statutory duty, namely; trial of the election petitions filed before it by the election petitioners.

11. In the aforesaid situation, under the Rules framed by <ORG> to which a reference has been made hereinabove, the presentation of the election petition stands regulated.

12. The right to challenge an election is a special right conferred under a self-contained special law and is circumscribed by its provisions. As clarified by <ORG> in its decision in the case of <CITATION> , reported in, AIR 1974 SC 1185, an election petition cannot be equated with a plaint in a civil suit. An election petition challenging the election of a successful candidate must strictly conform to the requirements of the law.

13. The first question which arises for consideration at this stage is as to whether the election petition presented in the Hindi language without complying with the requirements as envisaged under Rule 2 of the Rules framed by <ORG> relating to election petitions referred to hereinabove, is entertainable.

14. It may however be noticed that vide the notification dated 18-9-1971 in exercise of the powers conferred by Clause (2) of Article 348 of the Constitution of India, the Governor of Madhya Pradesh with the previous consent of the President of India, had authorised the use of Hindi language in all proceedings of <ORG> other than the decrees, orders and judgments of <ORG>, subject to the following conditions:

"(1) If any Bench of the High Court so desires, specific orders for translating into English, the affidavits, statements and documents in Hindi shall be passed; and (2) If any Judgment contains extracts from pleadings, statements and documents, etc., in Hindi, it shall be accompanied by translation of the same in English language." It was further provided that for the aforesaid purpose, use of Hindi shall be optional and if the parties so desire, they may continue to use English language as usual."

15. Article 348(l)(a) of the Constitution of India provides that all proceedings in <ORG> and in <ORG>, shall be in the English language.

16. In the present case, the objection raised by the respondent No. 1 is with reference to the statutory provisions contained in the separate rules regulating the presentation of the election petition framed in exercise of the jurisdiction envisaged under Article 225 of the Constitution of India to carry out the objects underlying the provisions relating to the "prescribed manner" as contemplated under Article 329(b) of the Constitution of India read with the provisions of the Representation of the People Act , 1951.

17. It may be noticed that Rule 2 of Section I Chapter IV of the rules framed by <ORG> provides as follows:

" 2. PRESENTATION OF APPEALS AND APPLICATIONS

2. Application to <ORG> shall, save where it is provided to the contrary in these rules, be by a petition-(i) written in the English language; (ii) neatly typed in thick paper of foolscap size with a margin of two Inches, only one side of the paper being used; (iii) ... to (v) ...

18. From what has been indicated above, it is apparent that the rules relating to the presentation of appeals and applications as contained in Section I Chapter IV of the rules deal with the matters other than the matters relating to election petitions, the rules in respect whereof have been framed separately vide the notification dated 21-2-1967 contained in Section II Chapter VII which specifically provide that the said rules related to the election petition presented under the Representation of the People Act , 1951.

19. In the notification dated 18-9-1971 Issued In the exercise of the powers envisaged under Article 348(2) of the Constitution of India, it has been provided that the use of Hindi language in all proceedings of <ORG> other than decrees, orders and judgments of <ORG> was authorised subject to certain conditions.

20. The expression "all proceedings of <ORG>" as used in the aforesaid notification is of a general character and in my considered opinion it has to be taken as confined to the proceedings referred to In Rule 2 of Section 1 Chapter IV of the Rules framed by <ORG> that is to say the presentation of the appeals and applications and not the special rules framed by <ORG> for a specific purpose to carry out the object underlying the provisions contained in the Representation of the People Act , 1951, which rules had come into effect with the notification dated 21-2-1967 referred to herelnabove.

21. I am further of the opinion that the provisions contained in Article 348(2) of the Constitution of India of Chapter III have to be interpreted in such a manner that the object underlying the provisions contained in Article 329(b) of the Constitution of India as well as Section 80 and 87 of the Representation of the People Act, 1951, read with Article 225 of the Constitution of India is not defeated in any manner. The provisions contained in Article 329(b) of the Constitution of India specifically provide that no election to either <ORG> or to the <ORG> or either <ORG> of the <ORG> of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided, for by or under any law made by the appropriate <ORG>.

22. The statutory provisions regulating the trial of an election petition for questioning an election of either, <ORG> or either <ORG> have to be construed strictly ensuring that it must conform to the requirements of the law.

23. As has already been noticed hereinabove, the right to challenge an election is a special right conferred under a special law as apparent from the decision of <ORG> in the case of <NAME> (AIR 1974 SC 1185) (supra).

24. It cannot be lost sight of that no procedure for presenting an election petition to <ORG> had been provided by the <ORG> in Part VI of the Representation of the People Act, 1951, though Section 80 of the said Act comprised in that part prohibits that no election petition unless presented in accordance with the provisions of Part VI of the Act, shall be called in question. When no manner for presenting an election petition to <ORG> is prescribed by that Statute or the rules framed thereunder then it was obviously open to <ORG> to frame appropriate rules to discharge its constitutional obligation and statutory duty in regard to the trial of the election petitions filed before it by election petitioners as it cannot refuse to entertain the same on the ground that no procedure for presenting them before it had been prescribed by the appropriate <ORG>. Since an election petition has to be presented only to <ORG>, it is for <ORG> to regulate the presentation and trial of the election petition.

25. The Special Rules framed by <ORG>, In the circumstances, taking into account the Implications arising under Article 329(b) of the constitution of India read with Section 80 of the Representation of the People Act, 1951, relating to election petitions prescribing the manner for presentation of the election petition by necessary implication stand clothed with such a statutory character which could not be deemed to have been affected by an order relating to authorisation contemplated under Article 348(2) of the Constitution of India so as to take away statutory rigour of the Rules prescribing a requirement of an election petition to be written in English language, numbering separately the paragraphs thereof as provided in Rule 2 of the aforesaid Rules relating to election petitions.

26. <ORG> of this Court in its decision in the case of <ORG>, reported in, 1988 Jab LJ 367. had clarified that the Rules framed by <ORG> under Article 225 of the Constitution of India must have primacy over others.

27. <ORG> in its decision in the case of <CITATION> , reported in, AIR 1973 SC 2513, it had been pointed out that when there are specific rules under the Act which govern the election petitions, no other rules are applicable.

28. As has already been noticed herelnabove, the provisions contained In Section 87 of the Representation of the People Act, 1951, mandates that subject to the provisions of the said Act and of any rules made thereunder, every election petition shall be tried by <ORG>, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. The procedure provided under the aforesaid Code Includes the manner regulating the presentation of a plaint, appeal, etc., Section 4 of the said Code however saves any special form of procedure prescribed by or under any other law for the time being in force. Obviously, therefore, the procedure prescribed under the Civil Procedure Code, 1908. regulating the presentation stands superseded by the special procedure provided by <ORG> in the special rules relating to the manner of presentation which rules have been framed in the exercise of the jurisdiction envisaged under Article 225 of the Constitution of India.

29. Our Constitution is structured with a wealth of influential and choice words, measured phrases and expressions, the real meaning and message of which are sometimes missed and on many occasions are hidden or unforeseen. However, the Implications, relevance, significance, spirit and core of these words have to be taken into account.

30. Taking into consideration the implications arising under Article 329(b) and 225 of the Constitution of India and Section 80 and 87 of the Representation of the People Act, 1951, as well as the implications arising under the authorisation provided vide the notification dated 18-9-1971 issued in exercise of the powers contemplated under Article 348(2) of the Constitution of India. I am of the considered opinion that violation of the special law regulating the election petitions of Rule 2(b) of the Rules contained in Section II Chapter VII, framed by <ORG> relating to election petitions is fatal and renders the present election petition not entertainable.

31. The learned counsel for the petitioner in support of his objections to the aforesaid application filed by the respondent No. 1 has placed reliance upon an unreported decision of a learned single Judge of this Court at <ORG> dated 21-2-1981 disposing of I.A. No. 14 of 1980 filed in the Election Petition No. 9 of 1980 (Devilal s/o Shriram Khadav v. <NAME>) whereunder the said application filed by the respondent No. 1 in that case for dismissing the election petition on the ground that the petition had not been filed in the English language as required by Rule 2(b) of the Rules relating to the election petitions made by the <ORG>, was rejected.

32. A perusal of the aforesaid order indicates that the application had been rejected observing that in the absence of any provision in the Act or the Rules made under the Representation of the People Act . non-compliance with the Rule 2(b) of the Rules relating to the election petitions made by <ORG> could not be a ground for the dismissal of the petition under Section 86 of the said Act. It was further observed that it was not the case of the respondent No. 1 who had moved the application that he was not conversant with the Hindi language in which the petition had been written noticing that the said respondent had himself filed I.A. Nos. 10, 11, 12 and 13 of 1980, which were written in the Hindi language. It was in such circumstances that the learned single Judge finding that it was not necessary to direct the petitioner to file a translation of the petition in English language had rejected the said application.

33. A perusal of the aforesaid order further indicates that the only question which had been considered by the learned single Judge was as to whether an election petition written in English language was required to be dismissed under Section 86 of the Representation of the People Act, 1951. It had however been observed that the counsel for the respondent No. 1 was unable to point out any provision of the Act or the Rules made under the aforesaid Act requiring the petition to be written in a particular language.

34. It may be noticed that although like cases should be decided alike but this principle is not an absolute rule nor of universal application. It does admit exceptions. Where there is no discussion regarding applicability of the relevant statutory provisions and the decision has been reached by a Bench in the absence of knowledge of a decision binding on it or a statute and in either case it is shown that had the <ORG> had the said material before it, it must have reached a contrary decision, it is clearly a case of a decision per incuriam which has no binding effect. This principle does not extend to a case where if different arguments had been placed before the said Bench or a different material had been placed, before it, it might have reached a different conclusion.

35. It cannot be lost sight of that it is not everything in a judgment with is binding but it is the ratio decidendi of the decision, that is the principle upon which the case is decided and for this reason it is important to analyse and isolate from it the ratio decidendi. Even where the facts appear to be identical, it is not obligatory to draw the same inference as drawn in the earlier case.

36. As a matter of fact, <ORG> in its decision had observed in the case of <CITATION> , reported in, AIR 1968 SC 647, rendered by a Constitution Bench, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expression which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It was further clarified that a case is only an authority for what it actually decides. It was further indicated that it is not a profitable task to extract a sentence here and there from a Judgment and to build upon it.

37. The order disposing of I. A. No. 14of 1980 referred to hereinabove, does not take notice of the statutory provisions and the implications to which a reference has already been made hereinabove. In fact, in the order itself it had been pointed out by the leaned single Judge that the counsel for the applicant had not been able to point out any statutory provision in support of the application apart from Rule 2 (b) of the Rules relating to the election petitions framed by <ORG>. Further, the only question considered in the aforesaid order was as to whether in that situation, dismissal of the election petition under Section 86 of the Representation of the People Act. was called for. The learned single Judge being of the view that the provisions contained in Section 86 of the said Act having been complied with no case for dismissal of the election petition under that provision had been made out. The case in hand is quite different as the controversy is not confined to the applicability of Section 86 of the Act alone.

38. In the aforesaid circumstances, the aforesaid order dated 21 -2-1981, disposing of I. A. No. 14/1980 in the case of Devilal s/o <NAME> (supra) cannot come to the rescue of the petitioner.

39. It must not be lost sight of and it Is needless to emphasise that the question in regard to the entertainability of an election petition with the presentation whereof a specific remedy is sought to be availed of ought to be ascertained primarily at the threshold. This is also the legislative Intent running behind the provisions contained in Sections 80 , 81 , 82 , 83 , 84 , 86(1) , 87 and 117 of the Representation of the People Act, 1951. The provision contained in Article 329(b) of the Constitution of India also lay emphasis on the manner of presentation of an election petition.

40. In the aforesaid circumstances, in case it is established that an election petition contemplated under the provisions of the aforesaid Act has not been presented in the manner prescribed, it cannot be treated as such an election petition at all which may require a trial.

41. In view of what has been indicated hereinabove, I have no hesitation in holding that the present election petition as framed is not at all entertainable. Since even the limitation for filing a fresh election petition in accordance with law and in the manner prescribed has also run out, it is not possible or permissible to permit the petitioner to remove the defect in the presentation of the election petition, the present election petition in the circumstances is not at all triable.

42. In view of my aforesaid conclusions, the election petition is dismissed as not entertainable and triable with the result that the present proceedings shall stand terminated.

43. Ordered accordingly.


PETITIONER: BABU LAL Vs. RESPONDENT: <NAME> KlSHORI LAL & ORS. DATE OF JUDGMENT29/01/1982 BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) SEN, A.P. (J) CITATION: 1982 AIR 818 1982 SCR (3) 94 1982 SCC (1) 525 1982 SCALE (1)79 ACT: Specific Relief Act , sections 22 and 28 read with section 55 of the Transfer of Property Act, scope of- Section 22 of the Specific Relief Act enacts a rule of pleading in order to avoid multiplicity of proceedings-When the court has decreed the suit for specific relief of execution of the agreement to sale of an immovable property without a separate prayer for possession in the plaint, the decree is still executable without recourse to another separate suit for possession-Powers of <ORG> to grant the relief in execution application. HEADNOTE: Pursuant to an agreement for sale of certain plots for Rs. 15, 500 M/s. <NAME> respondent No. 1 alongwith respondents 2 to 5 bad paid a sum of Rs. 1500/- as earnest money to respondents Nos. 6 to 9. The sale deed was to be executed within 15 days of the agreement. Respondents 6 to 9, how ever, executed a sale deed in favour of <NAME>, the petitioner, in respect of the same property for Rs. 20,000 on 7th August, 1967. Under the circumstances, respondents 1 to 5 filed a suit (No. 10 of 1968) in the court of Civil Judge, <NAME>, for specific performance of the contract of sale. The petitioner resisted the claim on the ground that the sale in his favour was in pursuance of a prior agreement dated 8th July, 1967. During the pendency of the suit, the petitioner started raising construction on the disputed plot after demolishing the old one. Respondents 1 to 5 applied for injunction restraining, the petitioner from doing so. The petitioner, however, gave an undertaking on 25th March, 1968, before <ORG> that he was making the construction at his own peril and would demolish the same and restore the land to its original position in case the suit of the plaintiffs was decreed. The trial court dismissed the suit but on appeal the additional District Judge decreed the suit and in second appeal <ORG> confirmed the judgment and decree of <ORG> and directed the petitioner and respondents 6 to 9 to execute the sale deed in favour of respondents Nos. 1 to 5. The petitioner,, however, did not handover possession and remove the construction raised by him despite his undertaking dated 25th March, 1968. The decree-holders, therefore, applied for execution of the decree. The judgment-debtor-petitioner filed an objection under section 47 of the Code of Civil Procedure taking all possible pleas to defeat the execution. His objections were three-fold: (i) The decree was inexecutable as the decree-holders did not claim a relief for possession in the suit itself and consequently there was no decree for 95 possession with the result that the application for execution by delivery of possession was liable to be dismissed in view of section 22 (2) of the Specific Relief Act ; (ii) the Urban Land Ceiling Act having come into force it was incumbent on the decree-holders to obtain the permission as required under sections 26 and 27 of the Ceiling Act and in the absence of any such permission the application for execution was not maintainable; and (iii) the vendors were not impleaded as parties originally and they were impleaded as parties only after the court had directed the vendors to execute the sale deed. As the vendors were not parties in the execution application it was not maintainable and it was not open to the execution court to implead a person who was not originally impleaded in the application. The execution court allowed the objection of the judgment debtor in part inasmuch as it directed the execution of the sale deed in pursuance of the decree. It, however, refused to grant the relief of possession with the observation that the remedy of the decree-holders for possession was by means of a separate suit and not by execution proceedings. Objections (ii) and (iii) were overruled. The order of the execution court was confirmed in appeal by they First Additional District Judge, <NAME>, dated 21st of February, 1977. <ORG> allowed the appeal of the decree-holders and modified the order of the court below to the effect that the decree-holders shall be entitled to possession also. Hence the petition by special leave by judgment debtor-petitioner. Dismissing the petition, the <ORG>. ^ HELD: 1. A decree for specific performance of a contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being governed by section 55 of the Transfer of Property Act. [103 <CITATION> , A.I.R. 1952 Cal. 362; <CITATION> ., A.I.R. 1938 All. 432; <CITATION> , 37 Cal. 57; <NAME> v. <NAME>, 14 C.L.J. 159; <CITATION> , 5 Pat. L.J. 314; <NAME> v. <NAME>, A.l.R. 1931 Pat. 179; <CITATION> , A.I.R.  All. 643; <CITATION> .l.R. 1957 Pat. 70l; <CITATION> , A.I.R. 1955 Cal. 267; <CITATION> ., A.I.R. 1973 Mysore 131, discussed. 2:1. Section 22 enacts a rule of pleading. The purpose of section 22 is to avoid multiplicity of suits and to enable the plaintiff to claim a decree for possession in a suit for specific performance without being hampered by procedural complications, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed, and empowers the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. [104 E-F] 2:2. Though sub-section (2) of section 22 recognised in clear terms the well-established rule of procedure that the court should not entertain a claim of 96 the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to, by its proviso it provides that where the plaintiff has not specifically claimed appropriate reliefs like possession, partition or separate possession including the specific performance in his plaint, in the initial stages of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the said reliefs, by means of an amendment of the plaint on such terms as it may deem proper. [105 <CITATION> ., A.I.R. 1975 Delhi 155; <CITATION> , A.I.R. 1976 Delhi 56; <CITATION> , A.I.R. 1956 All. 586, approved. 2:3. The expression "in an appropriate case' only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immoveable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Besides, the proviso to sub-section (2) of section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief "at any stage of the proceedings". [106 G-H, 107 A-B] 2:4. The term "proceedings" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word "proceeding" in section 22 includes execution proceedings also. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution. The <ORG> has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case, <ORG> rightly granted the relief of possession. [107 C-E, 109 <CITATION> , A.I.R. 1956 All. 586; <CITATION> :

A.I.R. 1954 All. 643; <CITATION> , A.I.R. 1976 Delhi 56, approved.

3:1. If once the legal position is accepted that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the court itself in case he fails to execute the sale deed, no valuable right can be said to have accrued to the petitioner judgment-debtor by lapse of time, merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree- holders only after they had obtained a sale in respect of the disputed property. Section 22 has been enacted . Only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor. [109 D-F] 3:2. The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of section 22 , which is only an enabling provision. In the instant case, the objection of the petitioner requiring the decree-holders to file a separate suit for possession is hyper-technical. The execution court has every jurisdiction to allow the amendment. The mere omission of <ORG> to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when section 55 of the Transfer of Property Act authorises the transferee to get possession in pursuance of a sale deed. It was open to the <ORG> to allow an amendment, on the basis of section 22 indeed, it has allowed delivery of possession in pursuance of the decree passed in the case. [109 F-G, H, 110 A-B, E] 3:3. Further, sub-section (3) of section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the <ORG> may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to. Sub-clause (b) of sub-section (3) of section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of section 28 bars the filing of a separate suit for any relief which may be claimed under section 28 . [112 A-C] 3:4. The High <ORG> had amended the decree passed by the first appellate court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner. A court which passes a decree for specific performance retains control over the decree even after the decree has been passed. Procedure is meant to advance the cause of justice and not to retard it. [112 G-H, 113 <CITATION> ., A.I.R. 1972 S.C. 1826, reiterated.

& CIVIL APPELLATE JURISDICTION : Petition for Special Leave to Appeal (Civil) No. 7771 of 1981.

From the Judgment and order dated the 2nd September, 1981 of <ORG> in Execution second Appeal Nos. 1001 & 1720 of 1977 and Civil Revision No. 1447 of 1978.

<NAME> for the Petitioner.

Mrs. <NAME> for the Respondent.

The Judgment of the Court was delivered by <ORG> This is a petition for special leave to appeal against the judgment and order dated 2nd of September, 1981 passed by <ORG> at Allahabad disposing of Execution Second Appeal No. 1001 and 1720 of 1977 and Civil Revision No. 1447 of 1978. The petition was heard on 7th of December, 1981 at some length and after hearing the counsel for the parties we dismissed the same for reasons to be recorded later. We Dow proceed to give the reasons.

The present petition is a typical example of the desperate effort of the judgment debtor to ward off the execution of the decree till the bailiff knocks at the door. Respondents Nos. 6 to 9 entered into an agreement with respondents Nos. 1 to 5 on 30th of July, 1967 for sale of certain plots situate behind their shop for Rs. 15,500. Respondents Nos. 1 to 5 had paid a sum of Rs. 1,500 as earnest money pursuant to the agreement. The sale deed was agreed to be executed within fifteen days of the agreement. Respondents Nos. 6 to 9, however, executed a sale deed in favour of the petitioner <NAME> in respect of the same property for Rs. 20,000 on 7th of August, 1967 in defiance of the earlier agreement dated 30th of July, 1967. Under the circumstances respondents Nos. 1 to 5 were obliged to file a suit which was later on numbered as suit No. 10 of 1968 in <ORG>, Aligarh for specific performance of the contract of sale. The petitioner resisted the claim on the ground that the sale in his favour was in pursuance of a prior agreement dated 8th of July, 1967. It appears that during the pendency of the suit the petitioner started construction on the disputed plot after demolishing the old construction. The plaintiffs, therefore, filed an application for an injunction restraining the petitioner from making any construction. The petitioner, however, gave an undertaking on 25th of March, 1968 that he was making the construction at his own peril and would demolish the construction and restore the land to its original position in case the suit of the plaintiffs was decreed. It appears that on the undertaking given by the petitioner the application for injunction was dismissed. The trial court dismissed the suit but on appeal the <ORG> District Judge decreed the suit. In Second Appeal <ORG> confirmed the judgment and decree of the first appellate court with a slight modification inasmuch as <ORG> directed the petitioner and respondent Nos. 6 to 9 to execute the sale deed in favour of the respondents Nos. 1 to 5, to bring it in line with the decision of <ORG> in <CITATION> . wherein it was held:

"In a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale, if the plaintiff succeeds, the proper form of the decree to be passed is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff."

The petitioner, however, did not handover possession and remove construction raised by him despite his undertaking dated 25th of March, 1968. The decree holders, therefore, applied for execution of thee decree. The judgment-debtor-petitioner filed an objection under section 47 of the Code of Civil Procedure taking all possible pleas to defeat the execution. His objections were three-fold: (1) The decree was inexecutable as the decree-holders did not claim a relief for possession in the suit itself and consequently there was no decree for possession. The application for execution by delivery of possession was liable to be dismissed on this score alone in view of section 22(2) of the Specific Relief Act. (2) The Urban Land Ceiling Act having come into force it was incumbent on the decree-holders to obtain the permission as required under sections 26 and 27 of that Act and in the absence of any such permission the application for execution was not maintainable (3) The vendors were not impleaded as parties originally and they were impleaded as parties only after the court had directed the vendors to execute the sale deed in Second Appeal. As the vendors were not parties in the execution application it was not maintainable and it was not open to the execution court to implead a person who was not originally impleaded in the application. The execution court allowed the objection of the judgment-debtor in part inasmuch as it directed the execution of the sale deed in pursuance of the decree. It, however, refused to grant the relief of possession with the observation that the remedy of the decree-holders for possession was by means of a separate suit and not the execution proceedings. The other two objection were, however, overruled. The order of the execution court was confirmed in appeal by the First <ORG> District Judge, <NAME> dated 21st of February, 1977. This order gave rise to two appeals, one by the judgment-debtor, being appeal No. 1720 of 1977, and the other by the decree-holders, being execution second appeal No. 1001 of 1977 to the extent the order went against them. There was yet another revision filed by the judgment-debtor petitioner, being civil revision No. 1447 of 1978 against the order dated 15th of March, 1978 whereby the judgment-debtor was directed to execute a sale deed in favour of the decree holders without obtaining permission from <ORG> under sections 26 and 27 of the Act. The appeal as well as the revision filed by the judgment-debtor were dismissed while the appeal of the decree-holders was allowed and the order of the courts below was modified to the effect that the decree-holders shall be entitled to possession also. The judgment-debtor petitioner has now come to this Court to seek permission to file an appeal against the judgment of <ORG> dated 2nd of September, 1981.

Only one contention has been raised on behalf of the petitioner by Mr. <NAME>, senior counsel, that <ORG> could not grant relief in execution application in excess of and out side the framework of the prayer by the plaintiffs in the original main suit. As a second limb to this argument it was further contended that <ORG> has acted in flagrant violation of the provisions of section 22 of the Specific Relief Act in granting the relief of possession. In substance, the main plank of the contention of the petitioner is based on section 22 of the Specific Relief Act. As it stands after amendment of 1963, it reads:

"22(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be-entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

(2) No relief under Cl. (a) or Cl. (b) of sub-section (1) shall be granted by the <ORG> unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plaint, the <ORG> shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the <ORG> to grant relief under Cl.

(b) of sub-section (1) shall be without prejudice to its power to award compensation under Sec. 21."

Mr. <NAME> was laying emphasis on sub-section (2) of section 22 to contend that tho plaintiffs having not claimed any relief for possession in the suit they cannot claim the same relief at a subsequent stage. According to him, in face of the clear mandate of sub-section (2) it was not open to <ORG> to have allowed the relief of possession at the execution stage, and in any case without an amendment of the plant.

The contention at the first flush appears to be alluring and plausible but on a closer scrutiny it cannot be accepted.

It would be appropriate to refer to the state of law as it existed prior to the amendment of the Specific Relief Act in 1963. One view was that the decree-holder does not acquire title or right to recover possession unless a sale deed is executed, in execution of the decree for specific performance. <CITATION> a Division Bench of <ORG> dealing with the question observed;

"A decree for specific performance only declares the right of the decree-holder to have a transfer of the property covered by the decree executed in his favour. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property the decree-holder has to proceed in execution in accordance with the provisions of 0.21 of the Code. So long as the sale deed is not executed in favour of the decree holder either by the defendant in the suit or by the <ORG> the title to the property remains vested in the defendant and till the execution of the sale deed the decree-holder has no right to the possession of the property. It is only the execution of the sale deed that transfers title to the property."

<CITATION> a Division Bench of the Calcutta High Court, however, after reviewing a number of reported cases, viz., <CITATION> . <NAME> v. <NAME>, <CITATION> , and <NAME> v. Barada Prasad, observed;

"It is incontestable that in a suit for specific performance of contract for the sale of land it is open to the plaintiff to join in the sale suit two prayers, one for the execution of the deed of transfer and another for recovery of possession of the land in question.

We ought to remember in this connection that no special form of decree in a suit for specific performance is supplied by the Civil Procedure Code.

Chapter 11, Specific Relief Act , deals with the various circumstances under which a contract may be enforced specifically and where it cannot be allowed. When a contract is to be specifically enforced, it means simply this that when the parties do not agree to perform the contract mutually the intervention of the <ORG> is required and the <ORG> will do all such things as the parties would have been bound to do had this been done without the intervention of the <ORG>. A sale of a property after payment of the consideration and upon due execution of the deed of sale presupposes and requires the vendor to put the purchaser in possession of the property. It cannot be suggested that when a party comes to <ORG> for a specific performance of a contract he is to be satisfied with simply the execution of the document on payment of the consideration money. The <ORG> when allowing the prayer for specific performance vests the executing court with all the powers which are required to give full effect to the decree for specific performance. By the decree for specific performance, the court sets out what it finds to be the real contract between the parties and declares that such a contract exists and it is for the executing court to do the rest, In may be noticed further that a decree in a suit for specific performance has been considered to be somewhat in the nature of preliminary decree which cannot be set out in the fullest detail all the different steps which are required to be taken to implement the main portion of the order directing specific performance of the contract. The executing court is in such a case vested with authority to issue necessary directions."

<CITATION> the decree for specific performance of a contract of sale was silent as to the relief of delivery of possession even though such relief was claimed in the suit. It was held by <ORG> that the executing court was still competent to deliver the possession. It was further held that it was not necessary in a suit for specific performance either to separately claim possession nor was it necessary for the court to pass a decree for possession. A decree for specific performance of a contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties in such a matter being governed by section SS of the Transfer of property Act. <CITATION> Court took the view that the relief of procession is inherent in a relief for specific performance of contract for lease, and the court executing a decree for specific performance of such a contract can grant possession of the property to the decree-holder even though the decree did not provide for delivery of possession. <CITATION> Court took a similar view that the right to recover possession springs out of the contract which was being specifically enforced and not as a result of the execution and completion of the conveyance, and as such the judgment-debtor was bound to deliver possession to the decree-holder.

<CITATION> Court observed that the liability to deliver possession for specific performance was necessarily implied in a decree for specific performance directing the defendant to execute a sale deed on the principle of clause (f) of sub-section of section 55 of the Transfer of property Act, according to which the liability to deliver possession arises immediately upon execution of sale deed unless by agreement the date for delivery of possession is postponed.

In this state of the law <ORG> intervened and on the basis of the report of <ORG> enacted section 22 in 1963 as it stands.

Section 22 enacts a rule of pleading. The <ORG> thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The <ORG> has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition, or for separate possession including the relief for specific performance. These reliefs he can claim, not- withstanding anything contained in the Code of Civil Procedure, 1908, to the contrary, Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the <ORG>, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well- established rule of procedure that the court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stage of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.

The expression in-sub-section (1) of section 22 'in an appropriate case' is very significant, The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case'. As pointed out earlier, in view of order 2, rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, as a case may be visualized where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he, is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is no consonance with the provision of section 55 (1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.

There may be circumstances in which are lief for possession cannot be effectively granted to the decree- holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the t share of the defendant. It is in such cases that a relief for possession must be specifically pleaded.

In the instant case, it is pointed out on behalf of the petitioner that the possession was not with the respondents Nos. 6 to 9 but was with a third person namely, the petitioner, who was subsequent purchaser and, therefore. this was an appropriate case where the relief for possession should have been claimed by the plaintiff-respondents Nos. 1 to 5.

It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. <ORG> modified decree to the extent that the sale deed was to be executed by respondents Nos. 6 to 9 together with the petitioner. In short, the decree was passed by <ORG> not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases'. This argument ignores the significance of the words 'in an appropriate case'. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Besides, the proviso to sub-section (2) of section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings'.

The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process, any act done by authority of a court of law; any step taken in a cause by either party". The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in section 22 includes execution proceedings also. <CITATION> such a view was taken. It is a term giving the widest freedom to a court of law so that it may do justice to the parties in. the case. Execution is a stage in the legal proceedings. It is a step in the judicial process. It makes a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution.

<CITATION> Court endorsed the view taken in <CITATION> (supra) that where in a suit for specific performance of the contract for sale relief for possession is not claimed and consequently the decree passed in the suit contains no relief for delivery of possession. the court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale. The court however, observed that on March 1, 1964 Specific Relief Act of 1963 came into force and this Act altered the law by enacting section 22 . It made it necessary for the plaintiff to ask specifically the relief of possession in suits for specific performance. The Court, however, held that section 22 of the Specific Relief Act of 1963 had no appli-

cation to that case as the decree was passed when the old Act was in force.

The same <ORG>, however. in <CITATION> considered the effect of section 22 (2) with its proviso. In that case the decree did not give the plaintiff the relief of possession. The question arose. Was the Court powerless to put him in possession of the property though he had a decree for specific performance in his favour ? The Delhi <ORG> observed:

" Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance even though strictly speaking the right to possession accrues only when specific performance is decreed.. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time the defendant should execute the deed and put the plaintiff in possession.

In my opinion the proviso gives ample power to a court to allow the amendment of the plaint even at this stage. The proviso says that the amendment of the plaint can be allowed "at any stage of the proceedings" on such terms as may be just for including a claim for possession where the plaintiff has not claimed such relief in his original plaint.

The term "proceeding" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which Judicial business is conducted.

The word "proceeding" in Section 22 in my opinion includes execution proceedings also."

<ORG> had relied upon <NAME> v. <ORG> (<ORG>) for its decision in this case. We are in complete agreement with the view taken by <ORG> on this case.

It is thus clear that the <ORG> has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case <ORG> granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the <ORG> should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection.

If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the <ORG> itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor. F The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of section 22 , which is only an enabling provision.

There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession The objection of the petitioner is hyper-technical. The execution court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession <ORG> should have allowed an amendment in the Plaint. The mere omission of <ORG> to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when section 55 of the Transfer of property Act authorises the transferee to get possession in pursuance of a sale deed.

As pointed out in the earlier part of the judgment, the petitioner had started construction and, therefore, the decree-holders sought to injunct him from making construction on the disputed land but they were lulled by undertaking given by the petitioner that he would demolish the construction and restore the land to its original position in case the suit for specific performance was decreed. The undertaking given no doubt is a clever undertaking, but that might have given an impression to the plaintiff decree holders that in the event of success of the suit the construction would be demolished and they would get back possession. Now the judgment-debtor petitioner seeks to lake advantage of the expression used in the undertaking to contend that he had undertaken only to demolish the construction and restore the land to its original position. The contention now raised is that the petitioner never gave an undertaking to restore back-possession of the disputed property to the decree-holders. Indeed, Mr. <NAME> stated before the <ORG> that he was prepared to get the construction demolished but then stops short and says that possession could not be delivered to the decree holders unless there was an amendment in the plaint. We are not prepared to take such a narrow view of section 22 . It was open to the <ORG> to allow an amendment and the <ORG> on the basis of that section has allowed delivery of possession in pursuance of the decree passed in the case.

Before closing discussion on this point we cannot lose sight of section 28 of the Specific Relief Act, 1963, which reads:

"28. (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lease does not, within the period allowed by the decree or such further period as The <ORG> may allow, pay the purchase-money or other sum which the <ORG> has ordered him to pay, the vendor or lessor may apply in the same suit in which the . decree is made, to have the contract rescinded and on such application the <ORG> may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under sub- section (1) the <ORG>-

(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor lessor. and

(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which the possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and; if the justice of the cases so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the <ORG> may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:

(a) the execution of a proper conveyance or lease by the vendor or lessor;

(b) the delivery of possession, or partition, and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be "

Sub-section (3) of section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the <ORG> may on application made in the same suit, award the purchaser or lessee such further relief as he may. be entitled to. Sub-clause (b) of sub-section (3) of section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of section 28 bars the filing of a separate suit for any relief which may be claimed under this section.

<CITATION> . dealing with section 28 (1) of the Specific Relief Act , 1963 this Court observed:

" The Specific Relief Act , 1963, is not an exhaustive enactment and under the law relating to specific relief a <ORG> which passes a decree for specific performance retains control over the decree even after the decree had been passed. Therefore, the <ORG>, in the present case, retained control over the matter despite the decree and it was open to the <ORG>, when it was alleged that the party moved against had positively refused to complete the contract, to entertain the application and order rescission of the decree if the allegation was proved."

The reasoning given by this Court with regard to the applicability of sub-section (1) of section 28 will equally apply to the applicapability of sub-section (3) of section

28. This is an additional reason why this Court should not interfere with the eminently just order of <ORG>. <ORG> had amended the decree passed by the first appellate court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner.

Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by <ORG>.

For the reasons given above the petition for special leave to appeal must fail and it was accordingly dismissed. S.R. Petition dismissed.


CASE NO.: Appeal (crl.) 730 of 1998 PETITIONER: <NAME> and Anr. RESPONDENT: State of Kerala DATE OF JUDGMENT: 23/03/2004 BENCH: <NAME> & <NAME>. JUDGMENT:

J U D G M E N T [With Criminal Appeal No. 731 of 1998] ARIJIT PASAYAT, J.

These appeals involve identical issues and are taken up for disposal together.

Appellants faced trial for alleged commission of offences punishable under Sections 3(1)(iii) , 3(1)(v) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act , 1989 (in short 'the Act'). <ORG> found the appellants guilty and imposed sentences. Appeal before <ORG> did not bring any relief to them.

The primary stand taken in this appeal is that <ORG> could not have suo moto entertained and registered the complaint as a sessions case. Learned counsel for the respondent-State supported the judgment of the courts below stating that this plea is taken for the first time in this Court and was not taken before the Courts below.

Pristine question to be considered is whether the Special Judge could take cognizance of the offence straight away without the case being committed to him. If the Special court is <ORG>, the interdict contained in Section 193 of the Code of Criminal Procedure, 1973 (for short the 'Code') would stand in the way. It reads thus: "193. Cognizance of offences by Courts of Session- Except as otherwise expressly provided by this Code or by any other law for the time being in force, <ORG> shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

So the first aspect to be considered is whether <ORG> is <ORG>. Chapter II of the Code deals with "Constitution of Criminal Courts and Offices". Section which falls thereunder says that :

"there shall be, in every State, the following classes of criminal courts, namely:

(i) Courts of Sessions;"

The other classes of criminal courts enumerated thereunder are not relevant in this case and need not be extracted.

Section 14 of the Act Says that:

"for the purpose of providing for speedy trial, <ORG> shall, with the concurrence of the Chief Justice of <ORG>, by notification in the Official Gazette, specify for each district <ORG> to be a Special Court to try the offences under this Act."

So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as <ORG>. Though the word 'trial' is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word 'inquiry' is defined in Section 2(g) of the Code as 'every inquiry, other than a trial, conducted under this Code by a Magistrate or court'. So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by <ORG>. The added reason for specifying <ORG> as <ORG> is to ensure speed for such trial. "<ORG>" is defined in the Act as "<ORG> specified as <ORG> in Section 14 " (vide Section 2(1)(d) .

Thus <ORG> is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why did <ORG> provide that only <ORG> can be specified as <ORG>? Evidently the legislature wanted <ORG> to be <ORG>. Hence the particular <ORG>, even after being specified as <ORG>, would continue to be essentially <ORG> and designation of it as <ORG> would not denude it of its character or even powers as <ORG>. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fascicules of provisions for 'trial before <ORG>".

Section 193 of the Code has to be understood in the aforesaid backdrop. The Section imposes an interdict on all Courts of Session against taking cognizance of any offence as a Court of original jurisdiction. It can take cognizance only if 'the case has been committed to it by a Magistrate', as provided in the Code . Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word 'expressly' which is employed in Section 193 denoting those exceptions is indicative of the legislative mandate that <ORG> can depart from the interdict contained in the Section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently <ORG> can take cognizance of any offence directly, without the case being committed to it by a Magistrate.

Neither in the Code nor in the Act is there any provision whatsoever, not even by implication, that the specified <ORG> (<ORG>) can take cognizance of the offence under the Act as a Court of original jurisdiction without the case being committed to it by a Magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straight away be filed before such <ORG> for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that the <ORG> is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the <ORG> from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the <ORG>.

A reading of the concerned provisions makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code . This means that if another enactment contains any provision which is contrary to the provisions of the Code , such other provision would apply in place of the particular provision of the Code . If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby. This aspect has been emphasized by a Constitution Bench of this Court in para 16 of the decision in <CITATION> (1984 (2) SCC 500). It reads thus"

" Section 4(2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts or various designations."

Section 5 of the Code cannot be brought in aid for supporting the view that <ORG> specified under the Act obviate the interdict contained in Section 193 of the Code so long as there is no provision in the Act empowering <ORG> to take cognizance of the offence as a Court of original jurisdiction. Section 5 of the Code reads thus:

"5.- Saving- Nothing contained in this Code shall, in the absence of a special provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

This Court in <CITATION> (1994 (3) SCC 440) on a reading of Section 5 in juxtaposition with Section 4(2) of the Code, held as follows:

"It only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2) . In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction or applicability of the Code ".

Hence, we have no doubt that <ORG> under this Act is essentially <ORG> and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code . In other words, a complaint or a charge-sheet cannot straight away be laid down before <ORG> under the Act. We are re-iterating the view taken by this Court in <CITATION> . (2000 (2) SCC

504) and in <CITATION> (2004 (1) SCC

215) in above terms with which we are in respectful agreement. <ORG> in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met.

Though the plea relating to lack of jurisdiction was not raised before the lower Courts, in view of the undisputed position on facts and inasmuch as a pure question of law without any factual controversy is involved, we feel interference on the facts of the case is called for.

One more plea which was pressed by learned counsel for the appellants is that continuance of the proceedings before the appropriate <ORG> in the manner prescribed in law would serve no useful purpose in view of the long passage of time. We do not find any substance in this plea. It is for the Competent <ORG> to decide regarding the action to be taken next, after hearing both sides as provided in Section 227 of the Code. No direction can be given to the said <ORG> at this premature stage as to what course the <ORG> should adopt in dealing with the complaint. It is open to the appellants to raise all their contentions at that stage if they want to make a plea for discharge. We make it clear that as and when such plea is made to the Judge of the Competent <ORG>, he shall pass appropriate orders in accordance with law.

With the aforesaid directions and observations the appeals are finally disposed of.