PETITIONER: <NAME> Vs. RESPONDENT: <NAME> & OTHERS DATE OF JUDGMENT06/08/1974 BENCH: <NAME>, KUTTYIL KURIEN BENCH: <NAME>, KUTTYIL KURIEN RAY, A.N. (CJ) CITATION: 1974 AIR 2068 1975 SCR (1) 606 1974 SCC (2) 363 CITATOR INFO : R 1975 SC2299 (232,607) R 1977 SC2090 (1) R 1980 SC1654 (2) R 1985 SC 111 (9) F 1989 SC1247 (24) RF 1991 SC1654 (42,44) ACT: Practice and Procedure--Nature of appeal--How far appellate. Court can take into account matters which have come into existence after the passing of the decree appealed against. HEADNOTE: Section 3 of the Punjab Pre-emption (Repeal) Act, 1973. which came into force in April 1973, provides that don and from the date of the commencement of the Act, no court shall pass a decree in any pre-emption suit. The 4th defendant sold his property to defendants 1 to1965 and the Plaintiff filed a suit claiming a right to pre-empt. The trial court and first appellate court held in plaintiffs favour. A second appeal to <ORG> by that time the Act had come into force and <ORG> the decision. Dismissing the appeal to this Court, HELD : An appeal is a rehearing and in moulding the relief to be granted in case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against. If <ORG> were to confirm the decree allowing the suit for pre-emption, it would be passing a decree in a suit for pre-emption. for. when the appellate court confirms a decree it passes a decree of its own, and therefore, <ORG> was right in allowing the appeal. [606D-F] Lachweshwar Prasad Shukul v. <NAME>, [1940] F.C.R. 84 Kristnama Chariviar v. Mangammal, [1902] 1. L. R. 26 Med. 91, at PP. 95-96, referred to., JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 941, 1123, 1572, 1666, 1667, 1760, 1780 of 1973 and 8 of 1974. Appeals by. special leave from the judgment and order dated 22nd May/31st August, 22nd May/20th September/17th August/ 17th September, 1973 of <ORG> in R. S. As. Nos. 1095/71, 271/69, 11/68, 879/70, 899/11, 2015/70 and 1137 of 1973 respectively.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>,<NAME> and <NAME> for appellants. <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for respondents. The Judgment of the Court was delivered by <NAME>, J.-In these appeals, a common question of law arises for consideration and this judgment will dispose of all the appeals.

We will take up for consideration Civil Appeal No. 941 (N) of 1973. The appellant challenges the correctness of a decree passed by <ORG> dismissing a suit for pre- emption. The plaint property belonged to defendant No. 4. He sold the same to defendants Nos. 1 to 3 by a sale deed dated July 29, 1965 and registered on October 14, 1965. The appellant who is the daughter of defendant No. 4 claiming that she has right to pre-empt,instituted the suit through her guardian. The trial court decreed the suit. Against the decree, an appeal was preferred by the vandees. That appeal was dismissed on July 17, 1971. An appeal was preferred to <ORG> against this decree.

The Punjab Pre-emption (Repeal) Act, 1973 (Act 11 of 1973) received the assent of the Gavernor of Punjab on April 6, 1973 and was published in <ORG> on April 9, 1973. <ORG> allowed the appeal and dismissed the suit holding that the provision of s. 3 of the above Act should govern the decision. The plaintiff appellant then applied for leave to file Letters Patent Appeal. That was dismissed.

Section 3 of the Punjab Pre-emption (Repeal) Act, 1973, provides:

"Bar to pass decree in suit for pre-emption--On and from the date of commencement of the Punjab Pre-emption (Repeal) Act, 1973, no court shall pass a decree in any suit for pre-emption".' The section, in effect, says that no court shall decree a suit for preemption after the coming into force of the Act. The question is, whether the appellate court, when it passes a decree, confirming the decree for pre--emption passed by the trial court or the lower appellate court, is passing a decree for pre-emption.

In <NAME> v. <NAME> (1) it was held that once the decree passed by a court had been appealed against, the matter became sub-judice again and thereafter the appellate court has seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the courts below retained jurisdiction. The Court further said that it has been a principle of legislation in British India at least from 1861 that a court of appeal shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Civil Procedure Code on courts of original jurisdiction, that even before the enactment of that Code, the position was explained by <NAME> in <NAME> in language which makes it clear that the hearing of an appeal is under processual law of this country in the nature of a re- hearing, and that it is on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.

As an appeal is a re-hearing, it would follow that if <ORG> were to dismiss the appeal, it would be passing a decree in a suit for pre-emption. Therefore, the only course open to <ORG> was to allow the appeal and that is what <ORG> has done. In other words, if <ORG> were to confirm the decree allowing the suit for pre-emption. it would be passing a decree in a suit for pre- emption, for, when the appellate court confirms a decree, it passes a decree of its own, and therefore, <ORG> was right in,-allowing the appeal.

We, therefore, dismiss the appeal but, in the circumstances,' make no order as to costs. V. P. S. Appeal dismissed.

(1) [1940] F.C.R. 84.

(2) [1902] I.L.R. 26 Mad. 91, at pp. 95-96.


JUDGMENT <NAME>, J.

1. The petitioner was detained by an order, dated June 4, 1973, under Section 3 of the Maintenance of Internal Security Act, 1971 (to be hereinafter called the Act) by the District Magistrate, Jabalpur, on the ground that it was necessary to do so to prevent him from acting in any manner prejudicial to the maintenance of public order. This detention order was revoked by the State Government in September, 1973 and the petitioner was released from custody.

2. On January 25, 1974, he was again arrested by the police under Section 151 of the CrPC on the ground that he was designing to commit cognizable offences, the commission of which could not otherwise be prevented. He was produced before a Magistrate the same day and was remanded to jail custody till January 31, 1974. In the meantime, on January 2%, 1974, the District Magistrate, Jabalpur made an order of his detention under Section 3(1)(a)(ii) . It was with a view to prevent him "from acting in a manner prejudicial to the maintenance of public order". The order was served on him in jail the same day. The grounds of detention were supplied to the petitioner on February 1, 1974. They run as under:

(i) That for sometime past you have been persistently engaged in the commission of acts involving breaches of law and public peace and highly prejudicial to maintenance of public order.

(ii) That, as the leader of a section of students at Jabalpur, you have been persistently encouraging and inciting the local students to commit acts of indiscipline, defiance of authority, breach of law, including violence as well as similar other acts highly prejudicial to maintenance of public order; This has actually disturbed public peace and order in the city on a number of occasions, more particularly on the 23rd January 1974, when considerable loss of public and private property occurred, injuries were caused to several persons and imposition of prohibitory orders including 'Curfew' became necessary.

(iii) The boldness and determination with which you have acted leaves no doubt that if you are allowed to remain at large any longer, you would act in furtherance of these prejudicial acts, thereby further seriously endangering maintenance of public order. Hence, with a view to prevent you from acting in such manner, your detention in jail has been considered necessary.

3. Particulars of these grounds were given in the Schedule annexed thereto. The material part of those particulars reads:

(1) to (5) ...

6. Soon after your release, you again became busy in organising the students and encouraging and inciting them to commit acts which are highly detrimental to public peace and order.

7. On the night of 10-11-1973, <NAME> and your associates gathered a crowd of about 300 students at Police Station Lordganj and created a highly explosive situation by raising provocative and inflammatory slogans and shoutincg filthy abuses. On the night of 14-11-1973 you and your associates gathered a crowd of about 200 students at Police Station Civil Lines,. some of whom were carrying iron rods and sticks. Incited and led by you, they not only shouted provocative and inflammatory slogans and abuses but also threatened violence and arson if the rival students' leaders were not arrested immediately.

8. On the night of . 15-12-1973, you and your associates led a crowd of students, which was armed with iron rods and sticks, to the Natraj Hotel near Karam Chand Chowk and caused extensive damage to property there. Thereafter, you and your associates assaulted and grievously injured one <NAME>, belonging to the rival group of students, and as a result an offence under Sections 307 / 147 / 148 / 149 / 506 , I.P.C . was registered at <ORG> Lordganj and you are now facing prosecution for the aforesaid offence.

9. After the above-mentioned incident, you and your associates tried to pressurise the Administration not to prosecute you all under Section 307 , I.P.C . \part from other tactics, a relay hunger strike was organised from 3-1-1974 to 10-1-1974 in front of the Collector's residence in Pachpedi. Each day provocative and filthy slogans and abuses were shouted and meetings of students were held in which inflammatory speeches were given. This hunger strike was given up on 11-1-1974 when a procession was taken out and a meeting was again held. In this meeting, apart from other provocative and inflammatory utterances, it was openly announced that the Chief Minister would be burnt alive if he comes to Jabalpur.

10. More recently, you have taken very active part in the agitation of <ORG>, although you have no direct connection with this body or their demands. On the 19th & 20th January, 1974, you and your associates declared that the students would fully support the agitation of the teachers and would also organise a 'Band' in Jabalpur on the 23rd January. On 21-1-1974, 60 students of your group headed by you resorted to 24 hours hunger strike at Malviya Chowk and the call for Jabalnur Band was reiterated and published. This campaign was kept up on 22nd January and, as a result, on the morning of 23rd January, 1974, a large number of students collected at Malviya Chowk and & big procession was formed which was headed by you and your associates This procession passed through the main parts of the city raising very provocative and inflammatory slogans. Ultimately, near the <ORG> an explosive situation was created when the miscreants disturbed public peace and order and indulged in heavy stone-pelting. As a result, prohibitory orders under Section 144 , Criminal P. C. had to be imposed and the mob had to be dispersed by use of mild force. Thereafter, there was further trouble in certain parts of the city where smaller crowds collected and indulged in unruly and violent behavior. At Bada Fuwara the situation became more serious and it was with considerable difficulty that control was established after use of tear gas and mild lathi-charge. The anti social elements committed grave acts of damage to public and private property worth about Rs. 30,000/-, caused injuries to 74 persons and even attempted looting of shops. Ultimately, curfew had to be insposed to control the situation. Thus, the incidents of 23rd January, 1974 caused serious dislocation and disturbance of public peace and order in the city and were occasioned mainly because of the efforts made by you and your associates in this direction.

11. Even after the grave incidents of the 23rd January, 1974, you and your associates have now given a call for 'Band' on the 1st February, 1974. You have also asked the students and people to collect in large numbers at Bada Fuwara at 10.00 A. M. on the 1st February, 1974. This call is in flagrant violation of the prohibitory orders under Section 144 , CrPC .

Sd/.- <NAME> District Magistrate, Jabalpur.

4. The petitioner moved <ORG> of Madhya Pradesh for a writ of habeas corpus under Article 226 of the Constitution on the ground that his detention was illegal. That petition was dismissed by <ORG> of <ORG> on April 3, 1974. He has now moved this Court under Article 32 of the Constitution for the same relief.

5. The first contention of Mr. <NAME>, learned Counsel for the petitioner is that an order of preventive detention cannot be validly made and served upon a person who is in jail custody. Since on January 28, 1974, proceeds the argument, the petitioner was in jail custody, the detention order was invalid. Counsel has referred to the decisions of this Court in <CITATION> (1964) and <CITATION> (1964) in support of this contention.

6. A careful examination of these decisions would show that it was not laid down as an absolute proposition of law that a valid detention order cannot be made in any circumstances against a person in jail custody. In <NAME> case (1964) AIR 1964 (supra), <NAME>, J. (as he then was) speaking for the <ORG> stated the position thus:

As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail: but the relevant fact in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be pased against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.

7. To the same effect are the observations in <NAME> case (1964) (supra).

8. These two cases are distinguishable from the instant case. Both <NAME> and <NAME> were in jail as undertrial prisoners. That was why it was held that it could not be rationally postulated that if they were not detained they would act in a prejudicial manner. Here in the present case, the petitioner at the time of the service of the order of detention was in jail neither as an undertrial prisoner for an indeterminate period nor as a convict serving a long distance, but as a detenu in proceedings under Sections 151 / 117 , Criminal P. C. The ratio of the aforesaid cases is therefore not applicable. The case in point is <CITATION> . There <NAME> was arrested under Sections 151 / 117 / 107 , Criminal P. C. and committed to jail custodv. He was in such custody when the order of detention was served on him. The order was made on the ground that his detention was necessary to prevent him from acting in a manner prejudicial to the security of <ORG> and maintenance of pub-lie order. Two of the contentions urged on behalf of <NAME> were : Firstly, that on the facts of that case preventive proceedings under Chapter VIII of the CrPC only could be taken and simultaneous action under Section 3(1) of the Act amounted to an abuse and misuse of the Act; Secondly, that the service of the detention order on the petitioner whilst he was in jail custody, was bad. Reliance for this contention was placed on <NAME>'s case (1964) AIR 1964 and <NAME>'s case (supra).

9. The first contention was negatived in these terms:

If the grounds are relevant and germane to the object of the Act then merely because the objectionable activities covered thereby also attract the provisions of Chapter VIII, Criminal P. C, the preventive detention cannot for that reason alone be considered to be mala fide provided the authority concerned is satisfied of the necessity of the detention as contemplated by the Act The jurisdiction of preventive detention sometimes described as jurisdiction of suspicion depends on subjective satisfaction of the detaining authority This jurisdiction is thus essentially different from that of judicial trials for the commission of offences and also from preventive security proceedings in criminal courts, both of which proceed on objective consideration of the necessary facts for judicial determination by courts of law and justice functioning according to the prescribed procedure. Merely because such jurisdiction of courts can also be validly invoked does not by itself exclude the jurisdiction of preventive detention under the Act.

In regard to the second, the <ORG> said:

There is no legal bar in serving an order of detention on a person who is in jail if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if freed, the person concerned is likely to indulge in activities prejud- cial to the security of the <ORG> or maintenance of public order The real hurdle in making an order of detention against a person already in custody is based on the view that it is futile to keep a person in dual custody under two different orders but this objection cannot hold good if the earlier custody is without doubt likely to cease soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease.

10. Recently in <CITATION> . 1999 of 1973, D/- 21-8-1974 : the learned Chief Justice speaking for the <ORG> reiterated the same principle thus:

Merely because a detenu is liable to be tried in a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the CrPC would not by itself debar the <ORG> from taking action for his detention under the Act.

11. In the case in hand, as already noticed, the petitioner was in jail custody in proceedings under Section 151 , Criminal P. C. That custody was obviously of a short duration. The mere service of the detention order on the petitioner in jail would not therefore invalidate the order. On the basis of the antecedent activities of the petitioner in the proximate past, the detaining authority could reasonably reach its subjective satisfaction about his tendency or inclination to act in a manner prejudicial to the maintenance of public order, after his release on the termination of the security proceedings under the Code .

12. We therefore reject this contention.

13. Next it is contended that the detention order is illegal inasmuch as grounds Nos. 2, 3, 4 and 5 in the Schedule are the same on the basis of which the previous order of detention, dated June 4, 1973 (that had been revoked) was founded. Since it cannot be predicated, proceeds the argument, how far the subsequent detention is based on those old, stale grounds, the impugned order of detention stands vitiated as a whole. Support for this contention is sought from the decisions of this Court in <CITATION> AIR 1954 and <NAME> case AIR 1973 (supra).

14. Although attractive, the argument is not based on sound premises. What the Counsel characterises as Grounds in paragraphs 2, 8, 4 and 5 of the Schedule, are not, in fact, the grounds on which the impugned order of detention is based. These paragraphs contain only a narration of the antecedents or the past history of the detenue. The conclusion of fact with particular reference to the incident of January 23, 1974 which embraces large scale disturbance of public order caused by the students at the instigation of the petitioner finds specific mention in Clause (ii) of the grounds of detention which have been quoted in extenso earlier. There is no specific reference therein to any incident which happened prior to June 4, 1973. The particulars of the grounds are given in paragraphs 7, 8, 9, 10 and 11 of the Schedule annexed to the 'grounds of detention'.

15. Paragraph 1 of Schedule recites that the petitioner was from 1957 to 1970 a student and then from January, 1971 to November, 1972, a lecturer in <ORG>. Paragraph 2 narrates how in the years 1970, 1971 and 1972 the petitioner was on three separate occasions proceeded against under Sections 107 / 117 , Criminal P. C. and was facing prosecution, under Sections 294 / 506 / 337 , I.P.C . in respect of an incident that took place on September 3, 1972. Paragraph 3 refers to an incident of September, 1972 and paragraph 4 to a happening of January 16, 1973 and consequent proceedings under Sections 107 / 117 , Criminal P. C. against the petitioner and others. Paragraph 5 also refers to acts done by the petitioner in May, 1973. After reciting this chain of events in paragraphs 2, 3, 4 and the opening part of paragraph 5, it is stated that as a consequence of these, the petitioner was by an order dated June 4, 1973, ordered to be detained under Section 3(1) of the Act and that this order was subsequently revoked by the State Government in September, 1973. The petitioner was released accordingly. The past events recited in paragraphs 2, 3, 4 and 5 constitute one chain culminating in the previous detention of the petitioner. They constitute only the background and not the grounds of detention on which the present order is based. It is the particulars given in paragraphs 7 to 11 of the Schedule that truly relate to the grounds on which the detaining authority based its satisfaction for the purpose of the impugned order. The rule in the cases cited by the learned Counsel has therefore no application here.

16. Lastly, it is urged that the matter mentioned in paragraph 10 of the Schedule is irrelevant and not germane to public order. The organizing of a <ORG> or a hunger strike simpliciter, it is argued, is an innocuous act and does not by itself have any direct connection with the maintenance of public order. It is further stressed that it is nowhere mentioned in that paragraph that the petitioner himself committed any violent act or indulged in the looting. These were the acts of antisocial elements with whom the petitioner, according to the Counsel, had nothing in common. The petitioner had admittedly no connection with <ORG> and he was not responsible for anything done by the said <ORG>.

17. We do not find any substance in this contention, also. The contents of paragraph 10 are to be read as a whole and as a part of the series of incidents enumerated in the preceding paragraphs 7, 8 and 9. The truth or otherwise of what is mentioned in those paragraphs cannot be tested objectively by judicial standards. We have to accept the correctness of the incidents and the facts stated therein. The petitioner has been painted in all these incidents as the prime-mover of the gear which resulted in disturbances accompanied by violence, looting and mischief on a wide scale. These particulars are neither vague, nor are they irrelevant to the object of the detention. On the basis of these activities, the detaining authority could reasonably gauge the tendency of the petitioner to act in a manner prejudicial to the maintenance of public order in future. For all the foregoing reasons, the petition fails and is dismissed.


PETITIONER: STATE OF JAMMU AND KASHMIR Vs. RESPONDENT: BAKSHI GHULAM MOHAMMAD DATE OF JUDGMENT: 06/05/1966 BENCH: <NAME>, A.K. (CJ) BENCH: <NAME>, A.K. (CJ) MUDHOLKAR, J.R. BACHAWAT, R.S. SHELAT, J.M. DAYAL, RAGHUBAR CITATION: 1967 AIR 122 1966 SCR (4) 1 CITATOR INFO : E 1970 SC2086 (24) R 1978 SC 68 (134,227,231,269,271) R 1982 SC 710 (101) D 1989 SC 714 (18) ACT: Constitution of Jammu and Kashmir, s. 37-Jammu and Kashmir <ORG> of Inquiry Act 1962, ss. 3, 4(c) and 10-Acts of a Minister while in office, whether can be subject of inquiry under Inquiry Act s. 37 of Constitution whether a bar to such inquiry Matters of public importance' and 'definite' in s. 3 , meaning of-Affidavits filed before <ORG> Right to cross examine deponents, extent of. HEADNOTE: The first respondent became a member of <ORG> of the <ORG> of Jammu and Kashmir in 1947 and was the Prime Minister of the <ORG> from 1953 'to January 1963, when he resigned. Thereafter a Notification was issued by <ORG> under s. 3 of the Jammu and Kashmir <ORG> of Inquiry Act 1962 setting up a <ORG> to inquire into the wealth, acquired by the first respondent and certain specified members of his family during his period of office; the <ORG> was also to inquire whether in acquiring this wealth there was any abuse of his official position by the first respondent or the said relatives. The <ORG>er so appointed held certain sittings between February 1965 and August 1965 in which the first respondent took part. In September 1965 he filed a writ petition before <ORG> and <ORG>, allowing the said petition, set aside the Notification instituting the inquiry and quashed the proceedings of the <ORG>. The <ORG> appealed to the Court. HELD:-(i) Section 37 of the Constitution of Jammu and Kashmir talks of the collective responsibility of Ministers to <ORG>. That, only means that <ORG> will have to stand or. fall together, every member being responsible for the action of any other. The section does not mean that a Minister is responsible for his acts only to the <ORG> and no action can be taken against him except for criminal or tortuous acts, in the ordinary course of law, unless the <ORG> by a resolution demanded it. No British convention to this effect, if any, can be said to have been adopted by s. 37 . Furthermore, the responsibility to the <ORG> is of <ORG>, and not of those who have, like the first respondent ceased to be Ministers. [405C-E]. (ii) Section 3 of the <ORG> of Inquiry Act expressly gives power to Government as well as to both the Houses of <ORG> to initiate action instituting an inquiry. When enacting it the <ORG> obviously did not consider that there was any convention or anything in s. 37 which prevented a <ORG> of Inquiry being set up under the Act at the instance of the Government or- <ORG>. [405F-G], (iii)The acts of a Minister while in office do not cease to be matters of public importance after he ceases to hold office; their character cannot change. When it is alleged that a Minister has acquired vast wealth for himself and his friends by abuse of his official' position, there can be no question that the matter is of public 402 importance. It does not cease to be of public importance merely because what is proposed is to inquire into allegations and not into the steps to be taken to prevent lapses in the future. Nor can absence of public agitation show that the facts to be inquired into are not of, public importance. [407E-G; 408- <CITATION> ,  S.C.R. 279, referred to. (iv) It is incorrect to say that) allegations mentioned are not definiteor that an inquiry into them is not contemplated by the Inquiry Act . [409 E-F] (v) It cannot be inferred from the provisions of- s. 10 of the Act that a <ORG> of Inquiry can inquire into the conduct of a person only incidentally, when the main inquiry is in respect of something else. What can be done indirectly should obviously have been considered capabe of being done directly. [411B] (vi)On the facts of the case the inquiry could not be said to be mala fide. [412F] (vii)The. doctrine of <ORG> responsibility does not mean that if an inquiry was made against one of the members of the <ORG> that would be discrimination under Art. 14. The respondent was in -a class, by himself and the classification was justified. [414A-B] (viii)The rule of natural justice only requires that a hearing should be given. When the <ORG> refused permission to the first respondent to cross-examine all the witnesses who had filed affidavits against him no rule of natural justice was violated. [415G] <CITATION> , 2 S.C.R. 165 and <CITATION>  S.C.R. 1240. (ix) Section 10 of the Act gives a right to cross-examine only these persons who give viva voce evidence before the <ORG>er. [416F] (x) Section 4(c) of the Act does not confer a right on a party appearing before the <ORG> to require a witness giving evidence by affidavit to be produced for his cross examination. The <ORG> would, of course, permit cross- examination in a case where it thinks that necessary. [417E] JUDGMENT:

CIVIL APPELLATE JURISDICTION:- Civil Appeal No. 1102 of 1966.

Appeal from the judgment and order dated December 27, 1965 of <ORG> in W. P. No. 67 of 1965. <NAME>, Attorney-General, <NAME>, Solicitor- General, <NAME>, Advocate-General for the State of J. & <NAME>; <NAME>, <NAME>, for the appellants.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for respondent No. 1.

The Judgment of the <ORG> was delivered by <NAME> This is an appeal by the State of Jammu and Kashmir, <NAME>, Chief Minister of that State and <NAME> its Home Minister. The appeal is contested by respondent No. 1, <NAME>. The other respondent, N., <NAME>, a retired Judge of this <ORG>, has not appeared in this <ORG> or in the court below. These are the parties to the proceedings before us.

After the accession of the State of Jammu and Kashmir to India in 1947, a responsible Government was set up there under the Prime Ministership of <NAME>. <NAME> was the Deputy Prime Minister in that Government and <NAME> was also in the <ORG>. In 1953 <NAME> was dismissed from office and a new Government was formed with <NAME> as the Prime Minister and <NAME> and <NAME> were included in the <ORG>. On January 26, 1957, a new Constitution was framed for Jammu & Kashmir. In the first elections held under the Constitution, a party called <ORG> got the majority of votes. <NAME> and <NAME> were members of this party. A Ministry was then formed with <NAME> as the Prime Minister. It appears that <NAME> left the party sometime after 1957 and rejoined it along with <NAME> in December 1960 and they were taken into the <ORG>. The next General Elections were held in 1962. Again, <ORG> Party came into power. In the Government that was formed, <NAME> became the Prime Minister and <NAME> and <NAME> were taken in the Ministry. In September 1963, <NAME> resigned from the Ministry under what is called the Kamraj Plan and <NAME> in became the Prime Minister in his place. It will be noticed that <NAME> was the Deputy Prime Minister of the State from 1947 to 1953 and its Prime Minister from 1953 to 1963. So he held these offices, one after the other, for a total period of about sixteen years.

In February 1964, <NAME> left office and a new Govern- ment was formed with <NAME> as the Prime Minister. It is said that shortly thereafter, political rivalry between him and <NAME> started. In August 1964, a notice was issued fixing a session of <ORG> in the following September. According to <NAME>, thereafter, some of the legislators wanted to bring in vote of no-confidence against <NAME> and by September 21, 1964 the no-confidence motion had obtained the support of the majority of. members of the <ORG>. On September 22, 1964, at 5 o'clock in the morning, <NAME> and some of his supporters were arrested under the Defence of India Rules. At 8.30 a.m. on the same day the notice of the motion of no-confi- dence with the signatures of some members was handed over to the Secretary of the Legislative <ORG>. <NAME> challenges the genuineness of the, signatures on the notice of the motion and also denies that it had the support of, a majority:- of the <ORG>-, At 9 a.m. the Legislative <ORG> which was to meet on that day,.

<NAME>

was prorogued by the Speaker under the directions of <NAME>, the constitutional head of the State. Sometime in November 1964, a petition for a writ of habeas corpus for the release of <NAME> was presented to <ORG>. On December 15, 1964, before the petition could be heard and decided, <NAME> was released from arrest by the State Government. On January 30, 1965, a <ORG> was issued by the State Government appointing a <ORG> of Inquiry constituted by <NAME> to enquire into (1) the nature and extent of the assets and pecuniary resources of <NAME> and the members of his family and other relatives mentioned in the first Schedule to the Order, in October 1947 and in October 1963; and (ii) whether during this period, <NAME> and the others mentioned in the Schedule had obtained any assets and pecuniary resources or advantages by <NAME> abusing the official positions held by him or by the aforesaid people set out in the first Schedule by exploiting that position with his knowledge, consent and connivance. The <ORG> provided that in making the inquiry under head (ii) the <ORG> would examine only the allegations set out in the second Schedule to it. It is this Noti- fication that has given rise to the present proceedings. The <ORG> held certain sittings between February 1965 and August 1965 in which <NAME> took part. On September 1, 1965, <NAME> moved <ORG> under ss. 103 and 104 of the Constitution of Jammu and Kashmir, which correspond to Arts. 226 and 227 of the Indian Constitution, for a writ striking down the <ORG> and quashing the proceedings of the <ORG> taken till then and for certain other reliefs to which it is not necessary to refer. The petition was heard by a Bench of three learned Judges of <ORG>. <ORG> allowed the petition, set aside the <ORG> and quashed the proceedings of the <ORG>. This appeal is against the judgment of <ORG>. In <ORG>, eight grounds had been advanced in support of the petition, three of which were rejected but the rest were accepted, some unanimously and some by the majority of the learned Judges. They have however not all been pressed in this Court.

The Notification had been issued under the Jammu & Kashmir Commission of Inquiry Act, 1962. The first point taken was that the Notification was not justified by the Act because under the Jammu & Kashmir Constitution, a Minister was responsible for his acts only to the <ORG> and no action could be taken against him except for criminal and tortuous acts in the ordinary courts of law, unless the <ORG> by a resolution demanded it. The substance of this contention is that an inquiry cannot be directed under the Act into the actions of a Minister except at the instance of the <ORG>, it cannot be directed by an order of the <ORG>. This contention is based on S. 37 of the Jammu & Kashmir Constitution. That section states that <ORG> shall be collectively responsible to <ORG>. It is contended that this implies that in no other way is a Minister responsible for anything that he does when in office. It is also said that is the convention in Britain and it has been adopted in the State of Jammu & Kashmir.

We confess to a certain amount of difficulty in appreciating this argument. The point about the British convention need not detain us. It has not been shown that any such convention, even if it exists in England, as to which we say nothing, has been adopted in the State of Jammu & Kashmir. The Jammu & Kashmir Constitution is a written document and we can only be guided by its provisions. It is said that s. 37 indicates that the British convention was adopted by the State of Jammu & Kashmir. We are unable to agree with this view. Section 37 talks of collective responsibility of Ministers to <ORG>. That only means that <ORG> will have to stand or fall to- other, every member being responsible for the action of any Other. The emphasis is on collective responsibility as distinguished from individual responsibility. The only way that a legislature can effectively enforce this responsibility of <ORG> to it is by voting it out of office. Furthermore, this responsibility is of <ORG>. <NAME> did not, at the date of the Notification, belong to that <ORG>. He did not on that date owe any responsibility to the <ORG> under s. 37 . That section has no application to this case Again s. 3 of the Inquiry Act states, "The <ORG> may and shall if a resolution in this behalf is passed by <ORG> or the Jammu & Kashmir Legislative <ORG> by notification appoint <ORG>". It ,would, therefore, appear that the Act gave power to the <ORG> to set up a Commission and also to both the <ORG> of the <ORG> to require a Commission to be set up. It is important to note that even the Legislative <ORG> has a right to get a Com- mission appointed though s. 37 of the Constitution does not say anything about the responsibility of the Ministers to that <ORG>. The Act was passed by the State <ORG> consisting of both the <ORG>. It would show that the <ORG> did not consider that there was any convention or anything in s. 37 which prevented <ORG> being set up under the Act at the instance of the <ORG> or the Legislative <ORG>. <ORG> had rejected this contention and we think that it did so rightly.

The next point urged in support of the petition was that the Act permitted a <ORG> to be set up for making an inquiry into a definite matter of public importance and the matters which the <ORG> had been set tip to inquire into were not such. This contention found favour with all the learned Judges of <ORG>. We are, however, unable to accept it. It is true that a <ORG> can be set up only to inquire into a definite matter of public importance. But we think that the matters into which the <ORG> was asked to inquire were such matters. The first inquiry was as to the assets possessed by <NAME> and the other persons mentioned in the Notification, in October 1947 and in October 1963 and the second was whether during this period being the sixteen years when he held office as Prime Minister and Deputy Prime Minister, he and the other persons named had obtained any assets or pecuniary advantage by abuse of his official position or by that position being exploited by the others with his consent, knowledge or connivance, this inquiry being confined only to the instances set out in the second Schedule to the Notification. That Schedule contains 38 instances, the first of which, in substance, repeats the second head of inquiry earlier mentioned. The other items refer to individual instances of people being made to part with property under pressure brought upon them by abuse of official position and of public money being misappropriated. At the end of this Schedule, there is a note' stating that the gravamen of the charge was that <NAME> abused his official position and the other persons named, exploited that position with his consent, knowledge or connivance in committing the acts whereby they acquired vast wealth. The inquiry was, therefore, into the assets possessed by <NAME> and the persons named, respectively in October 1947 and in October 1963 and to find out whether they had during this period acquired wealth by the several acts mentioned in the second Schedule by abuse or exploitation of <NAME>'s official position.

The first question is, whether these are matters of public importance. Two of the learned Judges held that they were not and the third took the contrary view. This was put on two grounds. First, it was said that these matters were not of public importance because they had to be so at the date of the Notification and they, were not so on that date as <NAME> did not then hold any office in the <ORG>. It was next said that there was no evidence of public agitation in respect of the conduct complained of and this showed that they were not matters of public importance. We do not think that either of these grounds leads to the view that the matters were not of public importance. As regards the first, it is difficult to imagine how a <ORG> can be set up by <ORG> to inquire into the acts of its head, the Prime Minister, while he is in office. It certainly would be a most unusual thing to happen. If the rest of <ORG> resolves to have any inquiry, the Prime Minister can be expected to ask for their resignation. In any case, he would himself go out. If he takes the first course, then no <ORG> would be set up for the Ministers wanting the inquiry Would have gone. If he went out himself, then the <ORG> would be set up to inquire into the acts of a person who was no longer in office and for that reason, if the learned Judges of <ORG> were right, into matters which were not of public importance. The result would be that the acts of a Prime Minister could never be inquired into under the Act. We find it extremely difficult to accept that view. These learned Judges of <ORG> expressed the view that the acts of <NAME> would have been acts of public importance if he was in office but they ceased to be so as he was out of office when the Notification was issued. In taking this view, they appear to have based themselves on the observation made by this <ORG> in <CITATION> (1) that "the conduct of an individual may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public well-being as to make such conduct a definite matter of public importance, urgently calling for a full inquiry". The learned Judges felt that since <NAME> was out of office, he had become innocuous; apparently, it was felt that he could no longer threaten the public wellbeing by his acts and so was outside the observation in <NAME>'s case. We are clear in our mind that this is a misreading of this <ORG>'s observation. This <ORG>, as the learned Judges themselves noticed, was not laying down an exhaustive definition of matters of public importance. What is to be inquired into in any case are necessarily past acts and it is because they have already affected the public well-being or their effect might do so, that they became matters of public importance. It is irrelevant whether the person who committed those acts is still in power to be able to repeat them. The inquiry need not necessarily be into his capacity to do again what he has already done and it may well be into what he has done. The fact that <NAME> is no longer in office does not affect he question whether his acts already done constitute matters of public importance. If once it is admitted, as it was done before us, that if he had been in office his acts would have been matters of public importance, that would be acknowledging that his acts were of this character. His resignation from office cannot change that character. A Minister, of course, holds a public office. His acts are necessarily public acts if they arise out of his office. If they are grave enough, they would be matters of public importance. When it is alleged that a Minister has acquired vast wealth for himself, his relations and friends, as is done here, by abuse of his official position, there can be no question that the matter is of public importance.

It was said that the object of inquiry was to collect material for the prosecution of <NAME> and, therefore, the matters to be required into were not of public importance. This contention is, in our view, fallacious. It is of public importance that public men failing in their duty should be called upon (1) [1959] S.C.R. 279.

5SCI 28 to face the consequences. It is certainly a matter of importance to the public that lapses on the part of the Ministers should be exposed. The cleanliness of public life in which the public should be vitally interested, must be a matter of public importance. The people are entitled to know whether they have entrusted their affairs to an unworthy man. It is said that the Notification did not mention anything about the steps to be taken to prevent recurrence of the lapses in future. But that it could not do. Before the facts were found steps could not be thought of, for the steps had to suit the facts. The inquiry proposed in this case will, in the course of finding out the lapses alleged, find out the process as to how they occurred and it is only after the process is known that steps can be devised to meet them.

It was also contended that the inquiry was into allegations of misconduct against <NAME> and an inquiry into allegations was not contemplated by the Inquiry Act . We are wholly unable to agree. An inquiry usually is into a question. That question may arise on allegations made. <NAME>'s case(1) dealt with an inquiry ordered at least in part into allegations made against people in charge of a big mercantile enterprise. Allegations may very well raise questions of great public importance. Suppose it is alleged that people in a city are suffering from ill-health and that is due- to the contaminated water supplied by the city admi- nistration. It cannot be said that these allegations about the existence of poor health and its causes are not matters of grave public importance. They would be so even if it was found that the people's health was not poor and the water was not contaminated. It cannot also be said that allegations can never be definite. They can be as definite as any existing concrete matter. It must depend on what the allegation is.

Then as to the question whether the allegations against <NAME> were not matters of public importance because there was no public agitation over them. The Notification itself and the affidavits filed in this case on behalf of the appellants in fact state that there had been allegations made by the public against <NAME> that he had amassed a large fortune by the misuse of his office. But it was said that there was no proof that the allegations had actually been made. Whether there was proof would depend on whether the statements in the Notification and the affidavits were accepted or not. We are, however, unable to agree that a matter cannot be of public importance unless there was public agitation over it. Public may not be aware of the gravity of the situation. They may not know the facts. Some members of the public may be aware of individual cases but the entire public may not know all of them. There may have been influences working to prevent public agitation. Again, whe-

(1)[1959] S.C.R. 279.

<NAME>

ther a matter is of public importance or not has to be decided essentially from its intrinsic nature. If a matter is intrinsically of public importance, it does not cease to be so because the public did not agitate over it. Take this case. Suppose the Government sets up a <ORG> to inquire into the mineral wealth in our country. The public are not likely to agitate over this matter for they would not know about the mineral wealth at all. Can it be said that the inquiry does not relate to a matter of public importance because they did not agitate over it? The answer must plainly be in the negative. This would be so whether there were in fact minerals or not. Considering the allegations contained in the <ORG> by themselves, we think for the reasons earlier mentioned, that they constitute matters of public importance even if there was no public agitation over them. It was said that <NAME>, <NAME> and various other people had praised the administration of <NAME>. That they no doubt did. But these were speeches made in support of party politics. They might again have been made without knowledge of full facts. They cannot, in any event, turn a matter of public importance into one not of that character. It was then pointed out that the <ORG> only mentioned that the matters were of public importance but did not say that they were definite matters of public importance. The Act , as we have earlier pointed out, requires that the matters to be inquired into shall be definite matters of public importance. But this omission of the word "definite" in the <ORG> does not, in our opinion, make any difference. A Court can decide whether the matters to be inquired into are definite matters of public importance. 'Definite' in this connection means something which is not vague. One of the learned Judges of <ORG> held that the matters set out in the second Schedule were vague as some of the instances did not give any date or year. He also said that the note at the end of the second Schedule., to which we have earlier referred, added to the vagueness. We are unable to accede to this view. What the learned Judge had in mind was apparently the particulars of the acts. In most cases, the acts are identifiable from the particulars given in the second Schedule in respect of them. Further, it is obvious that they had to be identified at the hearing and could not be proved nor any notice taken of them unless that was done. It does not appear to have been contended before the <ORG> that there was any matter not so identifiable. Neither do we think that the note drawing attention to the gravamen of the charges at the end of the second schedule indicates any indefiniteness. In most of the allegations it had been expressly stated that the act was done by the misuse of <NAME>'s official position and by his permitting others to exploit that-it is this which made the matters, matters of public importance-and it was for greater safety that the note was appended so that no 5SCI-28(a) doubt was left as to the gravamen of the charge in each of the allegations made.

The next point against the validity of the Notification was based on s. IO of the Act which is in these terms:-

"10. (1) If at any stage of the inquiry the <ORG> considers it necessary to inquire into the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially effected by the inquiry, the <ORG> shall give to that person a, reasonable opportunity of being heard in the inquiry and producing evidence in his defence;

Provided that nothing in this sub-section shall apply when the credit of a witness is being impeached.

(2)The Government, every person referred to in sub-section (1) and with the permission of the <ORG>, any other person whose evidence is recorded by the <ORG>:-

(a) may cross-examine any person appearing before the <ORG> other than a person produced by it or him as a witness,

(b) may address the <ORG>.

It was contended that it showed that an inquiry may be made under the Act into the conduct of a person only incidentally, that is to say, it can be made only when that becomes necessary in connection with an inquiry into something else. It was, therefore, contended that the present inquiry which was directly into the conduct of <NAME> was outside the scope of the Act. It was also said that s. 10 gives a statutory form to the rules of natural justice and provides for the application of such rules only in the case when a person's conduct comes up for inquiry by the <ORG> incidentally. It was then said that the Act could not have contemplated an inquiry directly into the conduct of an individual since it did not provide specifically that he should have the right to be heard, the right to cross-examine and the right to lead evidence which were given by s. 10 to the person whose conduct came to be inquired into incidentally. We are unable to accept this view of s. 10 . Section 3 which permits a <ORG> of Inquiry to be appointed is wide enough to cover an inquiry into the conduct of any individual. It could not be a natu- ral reading of the Act to cut down the scope of s. 3 by an implication drawn from s. 10 . We also think that this argument is illfounded for we are unable to agree that s. 10 does not apply to a person whose conduct comes up directly for inquiry before a <ORG> set up under s. 3 . We find nothing in the words of s. 10 to justify that view. If a <ORG> is set up to inquire directly into the conduct of a person, the <ORG> must find it necessary to inquire into that conduct and such a person would therefore, be one covered by s. 10 . It would be strange indeed if the Act provided for rights of a person whose conduct incidentally came to be enquired into but did not do so in the case of persons whose conduct has directly to be inquired into under the order setting up the <ORG>. It would be equally strange if the Act contemplated the conduct of a person being inquired into incidentally and not directly. What can be done indirectly should obviously have been considered capable of being done directly. We find no justification for accepting the reading of the Act which learned counsel for <NAME> suggests.

The next attack on the Notification was that it had been issued mala fide. One of the learned Judges of <ORG> expressly rejected this contention and the others also seem to have been of the same view for they did not accept it. We find no reason to accept it either. In that view of the matter, we consider it unnecessary to discuss this aspect of the case in great detail. We have set out the broad events of the case and it is on them that the case of mala fide is based. It is not in dispute that for some time past there was political rivalry between <NAME> and <NAME>. It was also said that there was personal animosity because <NAME> wanted to advance the interest of his relatives and followers by ousting persons belonging to <NAME>'s group in various fields. This allegation of personal animosity cannot be said to have been established. It is really on the political rivalry and the events happening since September 21, 1964 that the allegation of male fide is founded. It was said that the steps taken since the arrest of <NAME> down to the setting up of <ORG> were all taken with the intention of driving him out of the political life so that <NAME> would have no rival as a political leader. First, as to the arrest. The case of <NAME> was that the arrest was mala fide. On the other side, it was said that since about July 1964 various allegations of abuse of power by <NAME> some of which formed the subject matter of inquiry, had come to the notice of the Government and thereupon investigations were started by <ORG> at the instance of the Government. In order to stop the investigation <NAME> and his followers started dowdyism and other form of breaches of law and order endangering public safety and maintenance of public order. It was pointed out that the situation in Kashmir had not been easy for some time past due to the hostile intentions of Pakistan and China and breach of law and order added to the seriousness of the position. It was said that for these reasons <NAME> had to be arrested and detained under the Defence of India Rules. it was said on behalf of <NAME> that prior to the arrest, a no confidence motion had been sponsored and had actually gathered in volume and the arrest was made to stultify it. What support the no confidence motion had we do not know. It would appear however that <ORG> had been making inquiries against <NAME>'s acts for some time past and the situation in Kashmir was inflammable. In those circumstances, it cannot be said that <NAME>'s arrest was mala fide. He was no doubt released from arrest after a petition had been moved for his release and before the petition was heard. It was said that he was released because the Government found that the petition was bound to succeed. We have no material before us on which we can say that the petition was bound to succeed. On behalf of <NAME> and <NAME> it was said that he was released because of ill-health. This does not appear to have been denied. It was also said on behalf of <NAME> that the investigation having been completed there was no cause for <NAME> to instigate breaches of law and order and therefore it was not necessary to keep him in detention any longer. On the evidence before us, we are unable to say that the case made by <NAME> cannot be accepted. As to the prorogation of the <ORG>, it is said by the appellants that it was necessary because it was apprehended that if the <ORG> met, there might have been trouble inside the <ORG> created by <NAME> followers who resented the arrest. On the materials before us, we are unable to say that this apprehension was pretended. It was also said by the appellants that the prorogation had been decided upon before the arrest of <NAME> but the order could not be passed because <ORG> was out of Srinagar from before September 15, 1964 when both the arrest and prorogation had been decided upon and did not return there till some time on September 21, 1964. The fact that <ORG> returned on that date is not denied. As we have said, the arrest and the prorogation took place on the next day, that is, September 22, 1964. <NAME> was released on December 15, 1964 and the Notification challenged was issued on January 30, 1965. On these facts, we are unable to hold that <NAME> has been able to establish that the inquiry had been set up mala fide owing to political rivalry.

It has been said on behalf of the appellants that there could be no political rivalry because, as appears from <NAME> own affidavit, he had declared his intention to retire from politics. On behalf of <NAME> it was stated that <NAME> had made a statement that he would be released after <ORG> was set up and this would show that the detention was mala fide and that would indicate that the Notification had also been issued mala fide. That statement is not before us. On behalf of <NAME> it was said that such a statement had not been made and what had been said was that he would be released after the completion of investigation by <ORG> as thereafter, there will be no occasion for <NAME> to disturb the public peace and safety. It was also said that it had been mentioned that after the completion of the investigation, <ORG> would be set up. This is not denied. It however does not make the arrest mala fide. It was further said by <NAME> that the statement showed that the <ORG> was set up to prevent him from disturbing public safety and law and order and that, therefore, it was outside the scope of the Inquiry Act . This was denied on behalf of <NAME>. In the absence of the statement, it is impossible for us to say which is the correct version. Another point taken was that the affidavits filed on behalf of the appellants showed that the <ORG> were satisfied about the correctness of the allegations into which the inquiry was directed. It was contended that since the inquiry is for finding facts, if the <ORG> were already satisfied about them, there was no need for further inquiry. This contention has no force at all. What the affidavit really said was that the <ORG> were prima facie satisfied. They had to be so before they could honestly set up the <ORG> to make the inquiry. It was said on behalf of <NAME> that before setting up the <ORG> the <ORG> had investigated into the facts through <ORG> and if the <ORG>'s intention was mala fide, they could have started criminal proceedings and ruined the political life of <NAME> just as well thereby and kept him busy and out of politics for a long time. It was pointed out that this might have resulted in serious consequences for <NAME> which <ORG> would not. It was also pointed out that the <ORG>er appointed was a retired Judge of <ORG>. All this, it was said, would indicate that the action had not been prompted by malice. We cannot say that these contentions of the appellants have no force. The next ground of attack on the Notification was based on Art. 14. It was said that most of the matters into which the <ORG> had been directed to inquire formed the subject matters of <ORG> decisions. It was pointed out that since such matters are confidential and no one is allowed to divulge in what way the members of the <ORG> voted on them, it must be held that they were all equally responsible for the acts sanctioned. That being so, it was contended that by picking <NAME> out of the entire <ORG> for the purpose of the Inquiry the <ORG> had discriminated against him in a hostile way. It was contended that the Notification must be set aside on that ground. We find this contention untenable. The inquiry is in respect of wealth acquired by <NAME> and his friends and relatives by misuse of his official position. It would be strange if all the members of the <ORG> voluntarily abused their office for putting money into the pockets of <NAME> and his friends. Let us, however, assume that all the members of the <ORG> assisted <NAME> in doing this. It is however not said that other members had acquired wealth by these acts. He was, therefore, in a class by himself. This classification has further a rational connection with the setting up of the <ORG>, for the object is to find out whether the wealth had been acquired by <NAME> by the abuse of official position.

It remains now to deal with the last point. This was directed against the proceedings of the <ORG>. It was said that the proceedings had been conducted in a manner contrary to the rules of natural justice and to statutory provisions. Two specific complaints were made. The first was that the <ORG> had not allowed <NAME> to inspect all the documents before he was called upon to answer the allegations made against him. The second was that the <ORG> had refused him permission to cross- examine persons who had filed affidavits supporting the allegations made against him. We have now to set out the procedure followed by the <ORG>. It first called upon the <ORG> to file affidavits in support of the allegations in the second schedule to the <ORG> and to produce the documents which supported them. It then asked <NAME> to file his affidavit in answer. Thereafter the <ORG> decided whether any prima facie case had been made for <NAME> to meet and in that process rejected some of the allegations. <NAME> was told that there was no case, which be had to meet in respect of them. Out of the remaining allegations, a group was selected for final consideration and it was decided that the rest would be taken up gradually thereafter. In connection with that group of cases, counsel for <NAME> wanted to cross-examine all the persons who had filed affidavits supporting the <ORG>'s allegations in the cases included in that group. The <ORG>er ordered that he would not give permission to cross-examine all the deponents of affidavits but would decide each case separately. It was after this that the petition for the writ was presented. The question of inspection is no longer a live question. It is true that when <NAME> was directed to file his affidavits he had not been given inspection of' all the documents and files which the <ORG> proposed to use to support their case. On behalf of <NAME> it was said that this was a denial of the rules of natural justice. It is not necessary to consider this question because it is admitted that since then inspection of the entire lot of files and documents has been given. At the final hearing of the allegations, therefore, <NAME> would no longer be at any disadvantage. The next point is as to the right of cross-examination. This claim was first based on the rules of natural justice. It was said that these rules require that <NAME> should have been given a right to cross-examine all those persons who had sworn affidavits supporting the allegations against him. We are not aware of any such rule of natural justice. No authority has been cited in support of it. Our attention was drawn to <CITATION> (1), but there all that was said was that when evidence is given viva voce against a person be must have the opportunity to hear it and to put the witnesses questions in cross-examination. That is not our case. Furthermore, in Meenglas Tea Estate case(1) the Court was not dealing With a fact finding body as we are. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing. <NAME> was certainly given that It was said that the right to the hearing included a right to cross-examine. We are unable to agree that is so. The right must depend upon the circumstances of each case and must also depend on the statute under which the allegations are being inquired into. This Court has held in <CITATION> (1) that "the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any preconceived notions, but in the light of the statutory rules and provisions." We have to remember that we are dealing with a statute which permits a <ORG> of Inquiry to be set up for fact-finding purposes. The report of the <ORG> has no force proportion vigorous. This aspect of the matter is important in deciding the rules of natural justice reasonably applicable in the proceedings of the <ORG> of Inquiry under the Act. 'Then we find that s. 10 to which we have earlier referred, gives a right to be heard but only a restricted right of cross-exaniination. The latter right is confined only to the witnesses called to depose against the person demanding the right. So the Act did not contemplate a right of hearing to include a right to crossexamine. It will be natural to think that the statute did not intend that in other cases a party appearing before the <ORG> should have any further right of cross- examination. We, therefore. think that no case has been made out by <NAME> that the rules of natural justice require that lie should have a right to cross- examine all the persons who had sworn affidavits supporting the allegations made against him.

We will now deal with the claim to the right to cross- examine based on statutory provision. That claim is based on s. 4(c) of the Act. The relevant part of the section is as follows:--

"The <ORG> shall have the power of <ORG>. while trying a suit under the Code of Civil Proce-

(1) [1964] 2 S.C.R. 165.

(2) [1958] S.C.R. 1240.

<NAME>

dure Svt. 1977, in respect of the following matters, namely:-

(a) summoning and ao enforce the attendance yof an person and examining him on oath;

(b)

(c) receiving evidence on affidavits"' It is not in dispute that the Code of Civil Procedure of Jammu and Kashmir State referred to in this section is in the same terms as the Indian Code of Civil Procedure. Order 19 r. I. of the Indian Code reads as follows:--

"Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:-

Provided that where it appears to the <ORG> that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evi- dence of such witness to be given by affidavit."

The contention is that the powers of the <ORG> therefore to order a fact to be proved by affidavit are subject to the proviso that power cannot be exercised when a party desires the production of the persons swearing the affidavits for cross-examining them.

The contention was accepted by <ORG>. We take a different view of the matter. We first observe that the inquiry before the <ORG> is a fact-finding inquiry. Then we note that s. 10 which, in our opinion, applies to a person whose conduct comes up for inquiry by the <ORG> directly, has a right to cross-examine only those persons who give viva voce evidence before the <ORG> against him. If S. 4(c) conferred a right to cross-examine every one who swore an affidavit as to the facts involved in the inquiry, then S. 10(2) would become superfluous. An interpretation producing such a result cannot be right. It also seems to us that O. 19 r. I has to be read with O. 18 r. 4 which states that the evidence of the witnesses in attendance shall be taken orally in open court. It would appear, therefore, that O. 19 r. I. is intended as a sort of exception to the provisions contained in O. 18 r. 4. The Act contains no provision similar to O. 18 r. 4. Therefore, when S. 4(c) of the Act gave the <ORG> the power of receiving evidence on affidavits, it gave that as an independent power and not by way of an exception to the general rule of taking evidence viva voce in open court. It would be natural in such circumstances to think that what the Act gave was only the power to take evidence by affidavit and did not intend it to be subject to the proviso contained in O. 19 r. I. If it were not so, then the result really would be to require all evidence before the <ORG> to be given orally in open court. If that was intended, it would have been expressly provided for in the Act. We should here refer to <ORG> etc. <CITATION> (1) where this <ORG> dealing with a somewhat similar section like s. 4(c) observed that facts might be proved by an affidavit subject to O. 19 r. (1). The observations appear to have been obiter dicta. In any case that case was dealing with a statute different from the one before us. The observation there made cannot be of much assistance in interpreting the Jammu and Kashmir Inquiry Act. The number of witnesses swearing affidavits on the side of the <ORG> may often be very large. In fact, in this case the number of witnesses swearing affidavits on the side of the <ORG> is, it appears, in the region of four hundred. The statute could not have intended that all of them had to be examined in open court and subjected to cross-examination, for then, the proceedings of the <ORG> would be interminable. We feel no doubt that the Act contemplated a quick disposal of the business before the <ORG>, for, otherwise. the object behind it might have been defeated. While on this topic, we would impress upon the <ORG> the desirability of speedy disposal of the inquiry. For these reasons, in our view, s. 4(c) of the Act does not confer a right on a party appearing before the <ORG> to require a witness giving evidence by an affidavit to be produced for his cross-examination. The <ORG> would, of course, permit cross-examination in a case where it thinks that necessary. The view that we take should not put any party in any difficulty. He can always file affidavits of his own denying the allegations made in affidavits filed on behalf of the other party. If the evidence on both sides is tendered by affidavits, no one should be at any special disadvantage. We have also to remember that s. 9 of the Act gives the <ORG> power to regulate its own procedure subject to any rules made under the Act. We find that the rules provide that evidence may be given by affidavits and the <ORG> may after reading it, if it finds it necessary to do so, record the evidence of the deponents of the affidavits and also of others; see ff. 6, 7 and 8. Rule 10 reproduces the restricted right of cross-examination given by s. 10 . Rule 11 says that in all matters not provided by the rules, the <ORG> may decide its own procedure. One of the matters covered by the rules is cross-examination of witnesses. So the rules contemplate cross-examination as a matter of procedure and the <ORG> is free to decide what cross-examination it will allow provided that in doing so it cannot go behind the rules relating to cross-examination. Section 9 of the Act has to be read in the light of these rules. All this. we think, supports (1) 2 S.C.R. 841.

the interpretation we have put on s. 4(c) . We also feel that the procedure before a body like the <ORG> has necessarily to be flexible. We, therefore, reject the last contention.

In our view, for these reasons, the judgment of <ORG> cannot be supported. We accordingly set it aside. The appeal is allowed.

Appeal allowed.

<NAME>


PETITIONER: THE STATE OF BOMBAY Vs. RESPONDENT: <NAME>. DATE OF JUDGMENT: 04/10/1955 BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA DAS, <NAME>, NATWARLAL H. AIYYAR, T.L. VENKATARAMA IMAM, SYED JAFFER CITATION: 1955 AIR 810 1955 SCR (2) 867 ACT: Constitution of India- Article 31- Public purpose-Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948), s. C(4) (a)-Requisition for a public purpose of certain premises by the <ORG> of Bombay-For 'housing a member of the staff of a foreign consulate' -Whether the requisition was made for a 'public purpose' within the meaning of the Act. HEADNOTE: Held, that <ORG> was entitled, under clause (a) of sub-section (4) of s. 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948) to requisition as for a public purpose, certain premises for 'housing a member of the staff of a foreign consulate'. The purpose for which the requisition was made was a "public purpose" within the meaning of the Act; and the requisition was made in this case more as a <ORG> purpose than as a <ORG> purpose. In any event "other public purpose", is a category distinct from "<ORG> purpose" and "<ORG> purpose" and the acquisition or requisitioning of property by the <ORG> except for the purpose of the <ORG>, is within its competence under item 36 of the <ORG> List. An undertaking may have three different facets or aspects and may serve the purpose of a <ORG>, the purpose of the <ORG> and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a consulate as one appertaining to a <ORG> purpose, it does not necessarily cease to be a <ORG> purpose or a general public purpose. Therefore on this view also, the requisition in the present case must be held to have been validly made. Courts should lean against a construction which would render words in a statute mere surplusage. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 229 of 1953. Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated the 16th December 1952 of <ORG> in Appeal No. 110 of 1952. <NAME>, Attorney-General of India (<NAME> and <NAME>, with him) for the appellant. <NAME> for the respondent.

1955. October 4. The Judgment of the Court was delivered by <NAME> J.-Was the Government of Bombay entitled, under' clause (a) of sub-section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948), to requisition , as for a public purpose, certain premises for "housing a member of the staff of a foreign consulate"?, is the question we have to consider in this appeal, which has arisen out of a writ petition filed under article 226 of the Constitution by the respondent in <ORG> to restrain the State of Bombay from taking such action.

On the bearing of the petition before <NAME>, <NAME> the <ORG> succeeded on the ground that the purpose for which the requisition was made was a "public purpose" within, the meaning of the Act. But, on appeal, it was held that though the requisition was for a public purpose, the requisition order was invalid, 'as the public purpose must be either a purpose of the <ORG>, or a purpose of the <ORG> and in this particular case the accommodation being required for housing a member of a foreign <ORG> staff was a <ORG> purpose, which was outside the scope of the powers of the <ORG>. Clause (a) of sub-section (4) of section 6, omitting portions unnecessary for our present purposes, runs, in these terms:-

"The <ORG> Government may, by order in writing, requistition the premises for the purpose of a <ORG> or any other public purpose, and may use or deal with the premises for any such purpose in such manner as may appear to it to be expedient". The validity of the Act is not questioned as un- constitutional or as beyond the scope of the legislative competence of the <ORG>. As the premises were required for housing a member of the staff of a Con-

<NAME>, there can be no doubt that it was wanted for a public purpose.

The ultimate source of authority to requisition or acquire property is be found in arcticle 31 of the Constitution. The requisition or acquisition must be for a public purpose and there must be compensation. This article applies with equal force to <ORG> legislation and <ORG> legislation. Items 33 and 36 of List I & List II of the Seventh Schedule to the Constitution empower respectively <ORG> and the <ORG> Legislatures to enact laws with respect to them. The reasoning by which the learned appellate Judges of <ORG> reached their conclusion is shortly this There can be no public purpose, which is not a purpose of the <ORG> or a purpose of the <ORG>. There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the <ORG>". The provision of accommodation for a member of the foreian consulate staff is a "purpose of the <ORG>" and not a "purpose of the <ORG>".

We are unable to uphold this view as regards both the standpoints. Item 33 in the <ORG> Legislative List (List I)refers to "acquisition or requisitioning of property for the purposes of the <ORG>". Item 36 in the <ORG> List (List II) relates to "acquisition or requisitioning of property, except for the purposes of the <ORG>, subject to the provisions of entry 42 of List III". Item 42 of the Concurrent Legislative List (List III) speaks of "the purpose of the <ORG> or of a <ORG> or for any other public purpose". Reading the three items together, it is fairly obvious that the categories of "purpose" contemplated are three in number, namely, <ORG> purpose, <ORG> purpose, and any other public purpose. Though every state purpose or <ORG> purpose must be a public purpose, it is easy to think of cases where the purpose of the acquesition or requisition, is neither the one nor the other but a public purpose. Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a 'Public purpose, though it will not strictly be a <ORG> or <ORG> purpose. When we speak of a <ORG> purpose or a <ORG> purpose, we think of duties and obligations cast on the <ORG> or the <ORG> to do particular things for the benefit of the public or a section of the public. Cases where the <ORG> acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at 'heart, will fall within the third category above.mentioned.

With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the court below for reaching the result that the words "any other public purpose" 'are restricted -to a public purpose which is also a purpose of the <ORG>., has scarcely any application. A part from the fact that the rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applie If the words "any other public purpose" in the Statute in question have been used only to mean a <ORG> purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible. Even if it is conceded that the law contemplates only two purposes, namely, <ORG> purpose and <ORG> purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a <ORG> purpose and not a <ORG> purpose. Item I 1 in the <ORG> list specifies "diplomatic, consular and trade representation" as one of the subjects within the legislative competence of <ORG>, and under article 73 of the Constitution, the executive power of the <ORG> shall extend to all such matters. It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the <ORG> for which the <ORG> cannot legislate. It was conceded by Mr. <NAME>, Counsel for the Respondent, that there is no duty cast upon the <ORG> to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the <ORG> which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador. The trade and commerce of the <ORG> which appoints him with the <ORG> in which he is located are his primary concern. The <ORG> of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the <ORG>. We are inclined to regard the purpose for which the requisition was made in this case more as a <ORG> purpose than as a <ORG> purpose.

In any event, as already pointed out, "other public purpose" is a distinct category for which the <ORG> of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the <ORG>, is within its competence under item 36 of the <ORG> List. There is another way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a <ORG>, the purpose of the <ORG> and a general public purpose. Even if one may regard the requisition of a room for the accommodation of a member of a <ORG> as one appertaining to a <ORG> purpose, it does not necessarily cease to be a <ORG> purpose or a gene- ral public purpose. In this view also, the requisition in this case must be held to have been validly made. For the reasons given above, the appeal is allowed and the order of <NAME> is restored with costs payable to the appellant by the respondent throughout.


PETITIONER: STATE OF BIHAR Vs. RESPONDENT: DHIRENDRA KUMAR & ORS. DATE OF JUDGMENT27/04/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) CITATION: 1995 AIR 1955 1995 SCC (4) 229 1995 SCALE (3)700 ACT: HEADNOTE: JUDGMENT:

O R D E R Leave granted.

This appeal by special leave arises from the judgment and order dated 7th February, 1986 passed by <ORG> at Patna in Miscellaneous Appeal No.16 of 1986. A notification under s.4(1) of the Land Acquisition Act , 1894, 1/94 (for short, `the Act') was published on February 13, 1957 acquiring the disputed land alongwith other lands for public purpose, namely construction of the houses by <ORG>, known as <ORG>, Patna. The declaration under s.6, was published on March 27, 1957. The possession of the land was taken on March 22, 1957 and the same was given to <ORG> on the same day. It would appear that several encroachments have been made in the land and unauthorised constructions appears to have been made. Steps were taken by <ORG> to have the encroachers ejected from those lands. As sequel thereof, it would appear that the respondent laid Title Suit No.329/85 in <ORG> at Patna and filed an interlocutory application under Order 39 Rule 1 of CPC for ad-interim injunction. The Subordinate Judge in his order dated 18th October, 1985 found prima facie case with triable issue. Accordingly, injunction was issued, restraining the appellants from dispossessing the respondent till the disposal of the suit without causing any disturbance to the plaintiff's possession and enjoyment of the suit land or demolition of any structure standing thereon. On appeal, it was modified by <ORG>, holding that the status quo as on October 18, 1985 shall be maintained. Thus, these appeals by special leave.

The question is whether a civil suit is maintainable and whether ad interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued under s.9 of the Act and delivered to the beneficiary. The provisions of the Act are designed to acquire the land by the <ORG> exercising the power of eminent domain to serve the public purpose. The state is enjoined to comply with statutory requirements contained in s.4 and s.6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration under s.6, the public purpose gets crystalised and becomes conclusive. Thereafter, the <ORG> is entitled to authorise the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. Section 11A now prescribes limitation to make the award within 2 years from the last of date of publication envisaged under s.6 of the Act. In an appropriate case, where the <ORG>. needs possession of the land urgently, it would exercise the power under s.17(4) of the Act and dispense with the enquiry under s.5-A. Thereon, the <ORG> is entitled to issue notice to the parties under s.9 and on expiry of 15 days, the <ORG> is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award under s.12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose.

We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under s.9 of CPC stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under s.4 and declaration under s.6, except by <ORG> in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to <ORG>. So, the order of injunction was without jurisdiction.

The injunction granted by the trial court and confirmed by <ORG> are thus illegal. The appeal is, accordingly, allowed and the orders of the courts below are set aside, but, under the circumstances, without costs.


<NAME>, J.

1. The suit out of which this appeal arises was filed by four plaintiffs in a representative capacity for a declaration that Survey No. 6516 in the village of Singanur of extent about 77 or 78 cents is kakmi poramboke and for an injunction restraining the defendants from having a <ORG> temple in any portion of that land. The original extent of the land was about 83 cents, but in the north-east corner of it there is an old Perumal temple. Both the <ORG>s below found that the suit land is halam poramboke. I will first deal with the preliminary objection that has been taken by the learned advocate for the respondents. He contends that the appeal cannot proceed because it was originally filed by defendants 1 to 5 who were permitted by the District Munsif to defend the suit on behalf of those villagers who were of the same opinion as themselves, but the second appellant died and his legal representatives were not brought on the record and the remaining four appellants are not persons who were authorised to carry on the appeal. The first case relied on for this contention is <NAME> v. <NAME> (1924) 86 I.C. 592. In that ease certain persons filed a suit on behalf of themselves and several others under Order 1, Rule 8 of the Code of Civil Procedure. Some of the persons so represented were also plaintiffs. They obtained a decree. In second appeal one of the persons who obtained sanction to represent others died and an application to bring his legal representatives on record was made in time but some of the other plaintiffs also died but their legal representatives had not been brought on record. It was held that it was a joint decree obtained by all the plaintiffs and that, though, after sanction under Order 1, Rule 8 the second set of plaintiffs were not necessary plaintiffs, they having been parties to the suit and the appeal, their legal representatives ought to be brought on the record and the order under Order 1, Rule 8 would not relieve the appellants from the necessity of impleading all the decree-holders or their legal representatives and therefore the appeal would abate intoto. An earlier decision of the same <ORG>, <NAME> v. <NAME> (1918) 51 I.C. 437 was distinguished on the ground that the persons who died never applied to be made parties to the suit and were not on the record. They were only represented by one person who obtained sanction under Order 1, Rule 8, of the Code of Civil Procedure. The decision in <NAME> v. <NAME> (1924) 86 I.C. 592 relies on and follows another decision of the same <ORG> in Appeal No. 3169 of 1918 decided in 1922 and the two cases were said to be on all fours. These decisions were followed in <NAME>, v. <NAME> (1924) 89 I.C. 378. In this case five of the respondents were permitted to defend the appeal on behalf of others by an order under Order 1, Rule 8 and there was no death among these respondents. But there were other respondents in the appeal as originally filed and some of these died. It was contended by the appellants' advocate that the appeal did not abate but the <ORG> held that, the other respondents having obtained a decree and having been made parties to the appeal, their representatives also ought to be made parties, and that, if they were not made parties, the appeal would abate. In my opinion, these two cases are distinguishable on the facts from the case before me. In the second appeal before me I have not got the complication of parties other than those who obtained sanction under Order 1, Rule 8 being "parties in appeal. In the first place those are cases where the deaths occurred among the respondents and because the original respondents obtained a joint decree it was held that the appeal could not proceed without the legal representatives of all the respondents. But in the present case the death of parties is among the appellants and all the appellants were only those who obtained sanction under Order 1, Rule 8. Another case mentioned is <CITATION> (1926) 52 M.L.J. 460. In that case several plaintiffs obtained a decree for joint possession. There was an appeal, one of the plaintiffs-respondents died and his legal representatives were not brought on record. This case cannot help the respondents in the present second appeal. It being a joint decree for possession in favour of several parties, all of them or their legal representatives ought to be respondents on the record. There was no order under Order 1, Rule 8 of the Code of Civil Procedure in that case. Another case relied on before me is the decision of the Calcutta High <ORG> in <CITATION> A.I.R. 1928 Cal. 184 Here, there was a, decree against four landlords, They appealed, one of them died and his heirs were not brought on record. It was held that the whole appeal abated. There the rule was laid down that if the appeal can be heard in the absence of the deceased appellants the appeal can proceed, but whether the appeal can be so heard or not depends upon the nature of the suit. In this case also there was no order under Order 1, Rule 8. In my opinion none of the cases cited governs the present case. It seems to me that where sanction was originally given by the <ORG> to a certain number of persons either to prosecute or defend a suit and one of them dies, his heirs are not competent to prosecute or defend the suit, because the sanction was accorded to certain individual persons co nomine and not to their heirs, and, unless the. order can be construed so as to confer the right on the legal representatives also, the right does not survive. In such a case, the proper procedure seems to me for the remaining persons to apply to the <ORG> for directions. They should bring to the notice of the <ORG> that one of the persons to whom the original sanction was given is dead and request the <ORG> for directions whether the <ORG> will be pleased to permit the remaining persons to continue to prosecute or defend the suit, or, if it thinks that the original number is necessary, directions should be given authorising an additional person, who need not necessarily be the legal representative of the deceased person, to join the survivors; and when the <ORG> gives the necessary orders the suit will proceed. To say in all such cases, first, that the legal representatives should be brought on record and secondly, that if they are not brought on record the suit abates, seems to defeat the ends of justice. In the present case I give sanction to the remaining four appellants to proceed with the appeal on behalf of their party and disallow the preliminary objection.

2. [After stating the facts of the case and dealing with them His Lordship concluded :]

3. In these circumstances, I think the Subordinate Judge's decree is right and the second appeal is dismissed with costs of the plaintiffs-respondents.