JUDGMENT <NAME>, J.

1. Under Section 9 of the Provincial Insolvency Act a creditor filed I.P. No. 11 of 1935 in <ORG> of Vellore to adjudge two brothers, <NAME> and <NAME>, as insolvents, naming as the act of insolvency a mortgage given by them to <NAME> on 27th December, 1934. The mortgagee, however, was not impleaded. The insolvency petition passed through several vicissitudes but finally an order of adjudication was made in 1938. The Official Receiver of North Arcot in whom were vested the estates of the insolvents filed I.A. No. 1163 of 1942 under Sections 53 and 54 of the Act for setting aside the mortgage. After enquiry the application was dismissed and the Official Receiver appealed from that order to <ORG> of North Arcot in C.M.A. No. 40 of 1943.

2. Meanwhile <NAME> died in January, 1938. In a suit for partition on the file of this Court, C.S. No. 36 of 1938, the mortgage was allotted to <NAME>, a lunatic son of <NAME>, <NAME> being represented in that suit and in fact in all subsequent proceedings by the Official Trustee of Madras, who was appointed manager under the Indian Lunacy Act.

3. By the time C.M.A. No. 40 of 1943 came on for hearing the decision of <ORG> in <CITATION> (1943) 2 M.L.J. 160 : L.R. 70 I.A. 93 (P.C.) had been reported. Reliving on that decision it was argued on behalf of the Official Receiver that since the mortgage had been found to be an act of insolvency in the order of adjudication as a transfer made with intent to prefer a creditor, the order of adjudication was conclusive and that the appeal had consequently to be allowed and the mortgage set aside. As the mortgagee was not a party to the insolvency petition the learned District Judge remanded I.A. No. 1163 of 1942 for further enquiry giving the mortgagee one month's time to prefer an appeal from the order in T.P. No. 11 of 1935 and certain other consequential directions. The Official Trustee accordingly filed. C.M.A. No. 94 of 1943 in <ORG> against the order of adjudication in T.P. No. 11 of 1935. In that appeal the learned District Judge set aside the order of adjudication and remanded the insolvency petition for disposal after allowing the Official Trustee as representative of the mortgagee to add himself as the third respondent in the insolvency petition. He allowed the parties to adduce further oral and documentary evidence. Tn. pursuance of that order the Official Trustee got himself impleaded as the third respondent in T.P. No. 11 of 1935 by order, dated 3rd February, 1944.

4. T.P. No. 11 of 1935 and I.A. No. 1163 of 1942 were thereafter enquired into by the learned Subordinate Judge of Vellore who maintained the order of adjudication and declared the mortgage to be a void and fraudulent preference. There was no appeal against T.A. No. 1163 of 1942, but the order of adjudication was appealed against by <NAME> in C.M.A. No. 50 of 1945 on the file of <ORG>. Objection was taken to the maintainability of the appeal, on the ground that the mortgagee was neither a, creditor nor a person aggrieved within the meaning of Section 75 of the Provincial Insolvency Act. The objection was upheld and the appeal was dismissed. The present civil revision petition is against that order of dismissal. It was, filed by <NAME> of Madras as representing the estate of the lunatic. During the pendency of the civil revision petition the lunatic died and in C.S. No. 147 of 1947 on the file of this <ORG> filed for partition of his estate among his heirs <NAME> was appointed receiver inter alia for continuing the civil revision petition. An order was made on the 1.5th September. 1947, bringing on record in the place of the original petitioner <NAME> in his capacity as receiver in C.S. No. 147 of 1947. It is said that notice of the civil miscellaneous petition on which this order was made was not given to the creditors-respondents in the civil revision petition.

5. The principal point which now arises is whether the Official Trustee of Madras had locus standi to file an appeal against the order of adjudication.

6. Before dealing with that, however, two subsidiary points may first be dealt with. Belying on <NAME> v. <NAME> (1910) I.L.R. 37 Cal. 754 it was contended by Mr. <NAME> the learned Advocate for one of the creditors-respondents, that the order of 15th September, 1947, bringing on record the Official. Trustee of Madras in his capacity as receiver in C.S. No. 147 of 1947 in the place of the deceased lunatic whose estate was being previously represented by the Official Trustee as manager was invalid. <NAME> v. <NAME> (1910) I.L.R. 37 Cal. 754 only decided that a receiver is not a person who "claims to be entitled to the effects of the deceased person" within the meaning of Section 4 of the Succession Certificate Act (VII of 1889) and that a receiver appointed by <ORG> is competent to take possession of the securities and moneys belonging to an intestate without producing a succession certificate. It cannot be and has not been denied that the heirs of the deceased lunatic could come on record in the civil revision petition and continue it. I do not see why a receiver who represents the interests of those heirs and who has been authorised as receiver to institute and continue all suits and proceedings which they could themselves institute or continue cannot come on record in the civil revision petition.

7. The objection that the appeal to the lower appellate Court is not maintainable since no appeal had been filed against the order in I.A. No. 1163 of 1942 must also be overruled as the effect of setting aside the order of adjudication, if it should be set aside in C.M.A. No. 50 of 1945 would be to bring the insolvency proceedings to an end and thereby render ineffective the order made in I.A. No. 1163 of 1942. It is not suggested that the lower appellate Court is precluded by any doctrine of res judicata from deciding C.M.A. No. 50 of 1945 by reason of the fact that no appeal had been filed against the order in I.A. No. 1163 of 1942.

8. Reverting to the main question, Mr. <NAME>, the learned advocate for the Official Trustee, petitioner in the above civil revision petition, did not challenge the finding of the learned District Judge that his client, whom I shall hereafter describe as the mortgagee, is not entitled to maintain the appeal as "a creditor". The learned District Judge held that having regard to the definition of "creditor" and "secured creditor" in the Act and having regard also to the fact that the petitioner has not put forward any claim or contention common to himself and the other creditors of the insolvent he is not entitled to avail himself of the provision in Section 75 of the Act enabling a creditor to file an appeal. Mr. <NAME> contended himself by saying that his client is a person aggrieved by the order of adjudication.

9. The locus classicus so far as this question is concerned is the judgment of <NAME>, L.J., in In re Sidebotham (1879) 14 Ch. D. 458. In a well-known passage in that judgment, the Lord Justice defined who is and who is not a person aggrieved within the meaning of the Bankruptcy Act, 1869 (32-33 Vict., Ch. 71) and that definition has been applied in all subsequent decisions in England and in India as governing the connotation of that expression wherever it may occur.

The words 'person aggrieved' he said do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.

10. In illustration of the definition, he then went on to refer to Ex parte Ellis (1876) 2 Ch.D. 797 wherein it was held, that where an adjudication of bankruptcy had been made, founded upon the execution of a bill of sale, as an act of bankruptcy, the holder of the bill of sale was a 'person aggrieved' by the adjudication, and was entitled to appeal from it because it affected his property.

11. In Ex parte <NAME> (1876) 2 Ch.D. 797 the argument of the counsel who maintained that the holder of the bill of sale was not entitled to appeal from the adjudication was that his right to enforce his bill of sale was not affected by the fact that it had been treated by <ORG> as an act of bankruptcy and that if the trustee attempted to set it aside he would have an opportunity of trying the question. In dealing with this argument <NAME>, <NAME>, with whom <NAME> and <NAME>, L.Js. concurred, held that he had no doubt that the appellant was entitled to appeal and that though he may not be bound by the order of adjudication, still it may so embarrass him that he may properly be said to be aggrieved by it.

12. The matter was taken a step further by <ORG> in Ex parte Official Receiver: In re <NAME> & Go. (1887) 19 Q.B.D. 174 where Lord <NAME> Master of the Rolls set out the definition from Ex parte Sidebotham (1879) 14 Ch.D. 458 already quoted and pointed out that it is not an exhaustive definition but is an affirmative definition of a person who may appeal and at all events it includes a person who has asked for a decision for which he had a right to ask and has been wrongfully refused. Lord <NAME> then quoted from the judgment of <NAME>, <NAME>, in In re Sidebotham (1879) 14 Ch.D. 458 that "the general rule is that an appeal must be by the party" (that means one of the parties to the dispute which is brought before the <ORG> for its decision) "who has endeavoured to maintain the contrary of that which has taken place". This, in Lord <NAME>'s opinion, was to the same effect as part of the definition of <NAME>, <NAME> Lord <NAME> then gave in his own words the effect of the judgments of <NAME>, <NAME> and <NAME>, <NAME>

It means "he said" that, where there are two parties to the application-the one applying, the other asking that the application, may be refused-one of them has endeavoured to maintain the contrary of that which has taken place, and according to this definition he is a party against whom a decision has been green, and according to both definitions, he has a right to appeal on the ground that he is legally "a person aggrieved" by the decision, being in the same position as a party to a litigation.

13. In a still later judgment of <ORG>, In re <NAME> : Ex parte The Board of Trade (1894) 2 Q.B.D. 805 Lord Esher interpreted the decision in Ex parte Official Receiver: In re <NAME> and Co. (1887) 19 Q.B.D. 174 in the following passage which may usefully be quoted, Any person who makes an application to a Court for a decision, or any person who is brought before a Court to submit to a decision, is, if the decision goes against him, thereby 'a person aggrieved' by that decision.

14. This last definition was quoted with approval by <NAME>, J., in <CITATION> (1916) 20 C.W.N. 995 the facts of which however are somewhat obscure. The last case cited by Mr. <NAME> was that in <CITATION> (1935) 71 M.L.J. 333 : I.L.R. 59 Mad. 1049 in which Wadsworth, J., held that an alienee whose alienation was one of the transactions challenged in an insolvency had a right to maintain an application for the setting aside of an ex parte order of adjudication. The learned Judge observed incidentally that the alienee might have a right appeal as the matter came under Section 4 of the Provincial Insolvency Act. The decision does not directly bear on the question which now arises as the words of Section 75 had not to be construed in it.

15. On behalf of the respondents-creditors, Mr. <NAME> cited <CITATION> (1926) 50 M.L.J. 358 : I.L.R. 49 Mad. 461 <CITATION> A.I.R. 1928 Mad. 981 and <CITATION> (1934) 67 M.L.J. 942. But these cases are clearly distinguishable. <CITATION> (1926) 50 M.L.J. 358 : I.L.R. 49 Mad. 461 only held that an insolvent is not entitled to appeal as an "aggrieved person" within Section 8(2) of the Presidency Towns Insolvency Act against an order of a Judge rejecting his opposition to a sale of his estate by the Official Assignee, the reason given being that the insolvent has no legal interest but has only a hope of an expectation. The mere fact that, if all the claims of the creditors who have proved, were set aside or discharged by payment he would have an interest in the surplus which might be left over, gave him no right to interfere with or embarrass the administration of the estate. He had nothing more than a contingent chance. <CITATION> (1934) 67 M.L.J. 942 was similar on its facts and applied the rule laid down in <CITATION> (1926) 50 M.L.J. 358 : I.L.R. 49 Mad. 461 to a case which arose under the Provincial Insolvency Act . <CITATION> A.I.R. 1928 Mad. 981 an alienee of an insolvent's property was held not to be a "person aggrieved" by an order admitting proof in a creditor's favour. It is difficult to see how the validity or otherwise of the alienation would depend on the acceptance or rejection of proof of one of the several debts of the insolvent and it is not therefore surprising that the alienee was held to be very remotely affected, if affected at all, by the decision in favour of the creditor.

16. The learned District Judge relied principally on the decision of <ORG> in the Official Receiver, <NAME> v. <NAME> (1945) l M.L.J. 17 which held that the ruling of <ORG> in <NAME> v. Official Assignee, Calcutta (1943) 2 M.L.J. 160 : L.R. 70 I.A. 93 (P.C.) does not apply to an order of adjudication under the Provincial Insolvency Act . From this the learned District Judge concluded that the mortgagee would, in no way, be affected by the order of adjudication being maintained.

17. In exactly similar circumstances, however, as already pointed out, the <ORG> held in Ex parte Ellis (1876) 2 Ch.D. 797 that the embarrassment which may result from the order of adjudication provides the alienee with a sufficient grievance and clothes him with the necessary status to question the order of adjudication in an appeal. The principle of In re Lamb : Ex parte The Board of Trade (1894) 2 Q.B. 805 would also seem to apply as the mortgagee was brought before the <ORG> to submit to the decision in the insolvency petition and he had as a party to that petition a right to ask that it may be refused and this is, according to Ex parte Official Receiver : In re <NAME> (1887) 19 Q.B.D. 174 sufficient to give him. a right of appeal.

18. Holding that the mortgagee had. sufficient locus standi to maintain the appeal, I set aside the order of dismissal passed by the lower appellate Court and direct that the appeal should be restored to file and disposed of according to law.

19. The mortgagee brought all this trouble on himself by not filing an appeal against the order in I.A. No. 1.163 of 1942 and I therefore disallow his costs in the civil revision petition. The Official Trustee may however take his costs from out of the estate.


JUDGMENT <NAME>, J.

1. This appeal has been preferred against the decision of <ORG> (hereinafter called 'the <ORG>') against the decision awarding a sum of Rs. 25,000/- as compensation payable to one <NAME>, the respondent in this appeal and the claimant before the <ORG> in M. O. P. 3 of 1968 on its file. <NAME>'s only son <NAME>, aged about 12 years, met with his death as a result of a bus accident in the Bazar Road, Ambattur, opposite to <ORG> on 18-10-1967 at about 3-45 p.m. <NAME>, the first respondent in the petitions, is the owner of the Bus No. MSW. 2471 involved in the fatal accident and <ORG>, is the 2nd respondent. <NAME>, the mother of the unfortunate boy, made the claim for compensation under Section 110-A of the Motor Vehicles Act (hereinafter referred to as the Act). She claimed compensation of Rupees 70,000/- and Rs. 5,000/- for expenses, pain and suffering. The <ORG> awarded a sum of Rs. 25,000/-. In support of her case, the father of the boy and one <NAME>, a retired teacher of the school, were examined as witnesses, while on the other side the bus driver, the conductor and the Joint Regional Transport Officer were examined. <NAME>, the teacher, has given evidence that he was standing opposite to <ORG> at about 4 p.m. on 18-10-1967, that school children were coming out of the school, that the bus was going fast from south to north towards the bus stand and the boy was run over by the bus. There is no effective cross-examination and nothing is suggested to him that the accident happened in any other manner that the boy was run over on account of the boy's negligence and no theory is suggested to this witness to make out that the driver of the bus was not negligent and that the accident occurred on account of the negligence of the boy suddenly running across the bus or at the rear side of the bus. In the counter of the bus owner it was stated that the accident occurred because the boy suddenly darted across the road and got himself involved in the accident and that the accident was due to the negligence of the boy. Virtually the second defendant adopted the counter of the first respondent. In the course of the evidence, the driver and the conductor developed a new theory that while the bus was being driven at a slow speed, the boys were chasing the deceased and in that process the deceased ran and dashed himself at the rear end of the bus, sustained injuries, and, as a result thereof, died. The post mortem certificate Ex. A-2 shows that the boy had sustained 19 injuries, of which injuries Nos. 13 to 16 were fractures of the high bone, ribs, etc. The Judge has adverted to the discrepancy between the evidence of R. W. 1 and R. W. 2 as well as the discrepancy revealed in the evidence of R. W. 2 who gave evidence in the criminal case in which the bus driver was prosecuted. From the evidence it is clear that the driver was clearly guilty of gross negligence and rashness in driving the bus. The area is a school zone and just at the time the boys were coming out of the school and therefore the bus driver should have been extremely cautious and careful and mere regulation of speed by itself even if true would not avail. P.W. 1, the teacher, has given clear evidence. The evidence of R. Ws. 1 and 2 shows that they did not even see the boy at the time of the accident and in the cross-examination it is established that they were unable to explain how the accident occurred. It is some theory which they developed in the course of the evidence. Admittedly, there was no passenger in the bus and it is clear that the driver was driving the bus in a rash and negligent manner in a fast speed and without any care and caution, which resulted in the death of boy. We have perused the evidence of the bus driver and the conductor and we have no hesitation to say that their evidence is unreliable. The inspection report of the Motor Vehicles Inspector, which contains a plan attached, also tends to the same inference that death was not due to the boy's dashing against the rear portion of the bus, but it was a clear case of the bus running over the boy. If the accident occurred in the manner claimed by the driver and the conductor, it would have been mentioned so in the forefront in the counter. But, as already observed, in the counter, the case is, the child suddenly darted across the road and got involved in the accident. This evidence is given especially when the criminal prosecution was pending against the driver at that time. We have not the slightest hesitation in accepting the finding of the <ORG> that the death was due to the rash and negligent driving of the bus by the driver without taking any care or caution in the matter.

2. On the question of the quantum of compensation, the learned counsel for both sides invited our attention to several decisions. Learned Counsel addressed arguments based upon a comparative statement as revealed in the several decisions cited with reference to the victim's age at the time of his death, the age of the claimant, if the victim had been in employment, what salary or remuneration he was earning, the prospect in the increase of his emoluments if he had led a normal life up to the end of his career the contributions likely to be made to the claimant out of the victim's earnings, the affluence and the wealth of the claimant and the damages awarded in the individual cases. A study of the decisions reveals how wide is the variation between the judgments of various courts in assessing under comparable circumstances a suitable figure as compensation which, after all should appear "to be just" to the <ORG> exercising jurisdiction under Section 110-B of the Motor Vehicles Act, newly introduced. Section 110-B does not lay down any condition as to the manner of the exercise of jurisdiction by the tribunal and all that it states is that it has to hold an enquiry into the claim and make an award determining the amount of compensation which appears to it to be just. The use of the expression 'just' which is very wide and comprehensive in its import is of vital importance while adjudicating upon a claim under Section 110-B . Sections 110 to 110-F were introduced into the provisions of the Motor Vehicles Act by Act 100 of 1956. Prior thereto several decisions in India and in England had been rendered in claims arising out of Motor Vehicles Accidents in which the compensation was determined by applying the provisions of the Fatal Accidents Act of 1855 and the general law of Torts. Under Sections 110 and 110-F a self-contained machinery has been provided for the adjudication of claims for compensation in respect of claims arising out of motor vehicles accidents. Special claims tribunals have been constituted and a special procedure has been laid down in the Act for the adjudication of such claims. Section 110-F bars the jurisdiction of <ORG> to entertain any question relating to any claims for compensation arising out of motor vehicles accidents for which special provision has been made in the Act. When this special procedure was introduced in 1956, a wealth of case law has grown up with regard to adjudication of such claims and the various decisions pronounced by the courts in the solution of the problem in varying contexts in all of which the question was discussed mainly with reference to the Fatal Accidents Act and the general law of Torts, whether in India or in England. If we may say so, the <ORG> must have been aware of the fact that eminent Judges have observed that the problem is by no means of easy solution and has been mainly coloured or influenced by certain technical rules and principles evolved from a long course of decisions and is beset with various difficulties, doubts, contingencies and uncertainties and to a large extent the determination of compensation is a work of estimate, balancing the relative weight of several elements which enter into the computation. The precedents while enunciating that the <ORG> has ample latitude in the matter have at the same time laid down certain technical rules in the form of guide-lines which to some extent detract from the amplitude of the discretion of the court. It is in this environment that the new set of provisions were introduced into the Motor Vehicles Act constituting a self-contained machinery. The new provisions do not either impliedly or expressly incorporate the provisions of the Fatal Accidents Act but deliberately leave the jurisdiction, powers and discretion of the court unfettered by imposing the only condition that the tribunal should enquire into the claim and determine the amount of compensation which should be 'just'. Our attention was drawn to certain decisions arising out of the claims under the Motor Vehicles Act as amended in 1956 revealing a divergence of view on the question whether the newly introduced provisions of the Motor Vehicles Act are self contained and constitute an exhaustive machinery or whether the ultimate liability should be determined only in accordance with the provisions of the Fatal Accidents Act and the principles enunciated by decisions rendered under that Act. In a recent decision of the Supreme <ORG> reported in <CITATION> ., , the Supreme <ORG> while observing that the powers given to the <ORG> in the matter of fixing compensation under Section 110-B are very wide, has left open the question whether the compensation has to be fixed on the same basis, as is required to be done under the provisions of the Fatal Accidents Act .

3. We may refer to the recent Bench decision of <ORG> reported in Kamaladevi v. <NAME>, , in which it was held that Sections 110 to 110-F of the Motor Vehicles Act do not deal with the liability at all, that they only provide a new mode of enforcement of liability in respect of accidents, that so far as the liability is concerned, the provisions of the Fatal Accidents Act and the law of Torts would still apply and that the provisions in Section 110-B that the compensation amount must appear to be just do not create any new basis for assessing compensation and that the basis for the determination of the liability is the substantive law already in force. This decision has differed from the view taken in the earlier decisions in <CITATION> , , <NAME> v. <ORG>, 1967 Acc CJ 297 and <CITATION> , , that the words 'which appear to it (tribunal) to be just' are wider in scope than the words used in the provisions of the Fatal Accidents Act and the tribunal is not bound by the technical rules and the limitations evolved in the case law in the interpretation and the application of the provisions of the Fatal Accidents Act . The reasoning of the Bench is that the provisions in Sections 110 to 110-F do not enter into the field of the law of liability which would still continue to be governed by the provisions of the Fatal Accidents Act and the law of Torts and the new provisions are in no way intended to give a go-by to the limits and the basis of the liability which will have to be determined under the provisions of the Fatal Accidents Act and that Sections 110-A to 110-F provide merely a cheap and expeditious remedy for the ascertainment of that liability.

4. In a latter decision of the same court reported in <CITATION> , , a different view was taken to the effect that the tribunal has to award such compensation as may be 'just' and that the tribunal need not strictly follow the decisions under the Fatal Accidents Act . The attention of the Bench was not drawn to the earlier decision. The Bench observed that the expression 'just' in Section 110-B is wide in ambit than the words used in Sections 1-A and 2 of the Fatal Accidents Act and that the tribunal has to only consider what appears to it to be just compensation and it need not strictly follow and apply the basis of the assessment of compensation indicated in the various decisions under the Fatal Accidents Act , Indian or English, though they may be merely of general guidance. The Bench also observed that the decisions in India and England arising under the Fatal Accidents Act may be applicable only in so far as 'they promote interests of justice' under the facts and circumstances of each particular case to help the <ORG> to award compensation which is just.

5. We may at this stage refer to the Bench decision of this court consisting of <NAME>, <NAME> and <NAME>, J. in which the Bench observed that Sections 110 to 110-F of the Motor Vehicles Act are self-contained Code providing for compensation and the machinery of adjudication in cases of motor accidents and that the provision in the Act has no connection with the Fatal Accidents Act and it cannot be contended that a claim under the Motor Vehicles Act should be governed by the provisions of the Fatal Accidents Act . The Bench emphasised--

"It is noteworthy that Section 110 to 110-F that we have referred to, make no mention of any kind concerning any of the provisions of the Fatal Accidents Act and do not incorporate any such provision even by the most oblique reference".

It is true that this <ORG> decision had not to deal with the principles to be applied in the matter of assessment of the compensation but had only to deal with the class of persons who would be entitled to make the claim, i.e., whether the class of persons covered by Sections 110-A to 110-F is the same as the provisions of the Fatal Accidents Act . The question which the <ORG> had to decide was whether the expression 'representative' in the Fatal Accidents Act means the same thing as the same word used in Sec. 110- A of Motor Vehicles Act and the <ORG> held that the expression 'legal representatives' in the Motor Vehicles Act is used in the general sense and not in the restricted sense as in the Fatal Accidents Act . The principle of this <ORG> decision was followed and applied by a <ORG> of <ORG> in , even with regard to the basis for the determination of the just compensation, in the view that the provisions of Sections 110 to 110-F of the Motor Vehicles Act constitute a special law and would therefore prevail over the general law embodied in the provisions of the Fatal Accidents Act . The relevant discussion is to be found in paragraph 40 (pages 189 and 190). With respect, we agree with the view taken in the decision of <ORG>. The provisions newly introduced, Secs. 110 to 110-F purport to consolidate and amend the law relating to claims arising out of the motor accidents and are intended to provide a quicker and speedier remedy by way of application before the claims' tribunal. these provisions are self-contained and exhaustive. Further, as already observed, the case law rendered under the general law of Torts and in the interpretation and application of the provisions of the Fatal Accidents Act has developed considerably for over a century and for over three or four decades motor accidents fatal or otherwise, have increased beyond all proportion. The classical statement of <ORG> in <NAME> v. <NAME>, 1937 AC 826 in the <NAME>'s case, 1941 AC 157 in the oft quoted case <NAME> v. <ORG>, 1942 Acc CJ 601 will show the many imponderables and difficult problems which the courts have solved in assessing the compensation in each case. <NAME> on Tort, 8th Edition, at page 627, in the paragraph under the caption 'Criticism of the existing law' has observed that the law is still not entirely satisfactory and that the <ORG> must discharge a solemn duty (go through the solemn farce of putting a value on such an incalculable thing). It is because of this reason that <ORG> did not want to incorporate the provisions of the Fatal Accidents Act into the Motor Vehicles Act and defined the powers and jurisdiction of the tribunal in a wide and comprehensive term and that what the tribunal decides must be a just compensation on the facts of each particular case. As observed by the Supreme <ORG> in some other context, it is neither feasible nor advisable "to encase a discretionary power within the straitjacket of an inflexible formula." The term 'just' is derived from the Latin word justus. It has various meanings and its meaning is often governed by the context. 'Just' may apply in nearly all of its sense, either to ethics or law, denoting something which is morally right and fair and sometimes that which is right and fair according to positive law. It connotes reasonableness and something conforming to rectitude and justice, something equitable, fair (vide page 1100 of volume 50 Corpus Juris Secundum). At page 438 of Words and Phrases, edited by <ORG>, Vol. 23, the true meaning of the word 'just' is in these terms-

"The word 'just' is derived from the Latin justus, which is from the Latin jus, which means a right and more technically a legal right--a law. Thus 'jus dicere' was to pronounce the judgment; to give the legal decision. The word 'just' is defined by <ORG> as right in law or ethics and in Standard Dictionary as conforming to the requirements of right or of positive law, and in <ORG> as probable, reasonable. <ORG> defines 'just' as fair, adequate, reasonable, probable; and justa causa as a just cause, a lawful ground. <NAME> v. <NAME>, 81 NYS 1072, 1073 83 App Div. 1."

Again at page 437 of the same book, it is stated--

"Instruction that plaintiff in action for personal injury had burden of proving by preponderance of the evidence that his claim is just, and that he is entitled to recover, was erroneous, as a just claim is not always a legal claim that may be compensated for in damages, and as 'just' may apply in nearly all its senses to either ethics or law, denoting something which is normally right and fair, and sometimes that which is right and fair according to positive law--Lake Mancock and C. R. Co. v. <NAME>, 81 So 512, 77 Fia. 333."

There is no need to refer to other dictionaries or cases in which the word 'just', in conjunction with other words like 'just and reasonable' 'just and fair' and 'just and expedient' has been explained by the courts, because the word 'just' will take its colour from the main purpose and object of the enactment, Further, as observed by <NAME>, C. J., in V. G. Row v. State of Madras, , "Even ideas of what is just differ from age to age. What may seem to be just to one man in one age may appear to another man in another age totally differently". It is enough to hold that the word ' just' in Section 110-B of the Motor Vehicles Act has been used in a very wide and comprehensive sense.

6. We are therefore of the view that there is no warrant for literally importing the provisions of the Fatal Accidents Act into Section 110-B of the Motor Vehicles Act so as to read both the provisions as part and parcel of one provision. By this we should not be understood as saying that the <ORG> can adopt any method which is arbitrary and capricious or in disregard of well-established principles. The decisions rendered under the general law of Torts and under the Fatal Accidents Act will undoubtedly be relevant and constitute broad guidelines, but they would not be binding upon the <ORG> in the sense that the method of approach should be the same and identical as in the cases arising under the Fatal Accidents Act .

7. In the instant case, on the question of compensation, there is the evidence of P.W. 1, the father of the victim, which has been accepted by the <ORG>. There is no contra rebutting evidence. The evidence of P.W. 1 shows that the family of the victim is respectable and fairly affluent, and the members of the family are long-lived. The children of the brother of P.W. 1 are well educated, one is a doctor, and another is an advocate, both having god practice. The victim was the only son born to the parents, rather late in their life. Naturally, they were deeply affectionate and attached to the boy. They were taking all interest in the boy and in building up his career; they had put him in <ORG> giving him the best education even to start with. The boy was a healthy boy and was first in the rank in school.

8. P.W. 1 was carrying on money lending business. There can be no doubt whatever that the boy would have a predominantly happy life if this tragedy had not occurred. There is nothing in the family environment to detract, in any manner, from the full prospects of a predominantly happy life. He would have had no problems or difficulties to worry him. One can easily visualise the feelings and the shock and the sufferings of the parents when their only child met with his death under such tragic circumstances. The question is whether the compensation awarded by the <ORG> is otherwise than just, i.e., so excessive and vitiated by any error of law or principles, so as to call for interference. It is settled law that <ORG> should be very slow in differing from the verdict of the tribunal in the matter of the award of just compensation. If the tribunal had taken all the relevant aspects and if it had not taken into consideration any irrelevant or extraneous matter, and no error of law or principle had been committed by the <ORG>, the appellate Court will not interfere merely because it may differ on the question of the quantum. It is obvious, there is no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at in precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case. To considerable extent the amount of compensation fixed is based upon an estimate, though conjecture, to some extent, is inevitable. The only limitation is, the court must exclude all considerations of matter which rest in the realm of speculation or fancy or mere sentiment or emotion. The amount fixed ultimately depends upon an objective estimate of what kind of future on earth the victim might have enjoyed, the loss of benefit to the parents on the dependents; in the nature of things, no guidelines in the abstract can be laid down.

9. As regards the measure of liability in the case of motor accidents, the decisions of <ORG> reported in <CITATION> , and <CITATION> , have (after a discussion of all the leading decisions in England) laid down the main principles. Both the decisions did not have to consider the measure of liability under Section 110-B of the Motor Vehicles Act. We may now take it as settled law that under the Fatal Accidents Act the liability under Section 1 and Section 2 are distinct, different and independent. Under Section 1 , damages are recoverable for the benefit of persons mentioned therein as loss sustained by them, while under Section 2 , damages are awarded for the recoupment of the pecuniary loss to the estate of the deceased as a result of the accident. The two claims are based upon different causes of action and the claim ants would be entitled to recover compensation separately under both the heads. If, however, the person who takes benefit under Section 1 happens to be the same person as entitled to compensation under Section 2 , there cannot be duplication of the dame claim and the compensation awarded under Section 2 for the loss of the estate of the deceased will be taken into account in the calculation of the compensation payable to the claimants under Section 1 . In both the decisions of <ORG>, the statement of the law of <NAME>, L.J., in <ORG> v. <NAME>, 1913 AC 1 at p. 7 had been referred to with approval and followed. In 1913 AC 1 it was held that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. Reference may be made to the following classical statement of the law by Lord <NAME> at page 7 in 1913 AC 1 referred to in the decisions of <ORG>:--

"In 1913 AC 1, <ORG> observed that it is not a condition precedent to the maintenance of an action under the Fatal Accidents Act , 1846 that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. Therein Lord <NAME> stated the law thus:--

'I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact--there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express by emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them.' "

<ORG> summed up the law in these terms at pages 380 and 381:--

"The law on the point arising for decision can be summed up thus: Compulsory damages under Section 1-A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2 , the measure of damages is the economic loss sustained by the estate. there can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present case value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration.

"Now applying the above rules to the facts of the present case, it is seen that the deceased child was only 8 years old at the time of his death. How he would have turned out in life later is at best a guess. But there was a reasonable probability of his becoming a successful man in life as he was a bright boy in the school and his parents could have afforded him a good education. It is not likely that he would have given any financial assistance to his parents till he was at least 20 years old. As seen from the evidence on record, his father was a substantial person. He was in business and his business was a prosperous one. As things stood he needed no assistance from his son. There is no material on record to find out as to how old were the parents of the deceased at the time of his death. Nor is there any evidence about their state of health........."

In even though the case arose out of a claim under Section 110-A of the Motor Vehicles Act, <ORG> discussed the problem with reference to the provisions of the Fatal Accidents Act , leaving open the question whether the power conferred upon the <ORG> under Section 110-B of the Act is wider.

10. It is unnecessary to refer to the several cases cited by counsel on both sides as the determination of compensation turns upon the particular facts of each case. The result of the case law is (1) The thing to be valued is not merely the prospect of the length of life, but the prospect of predominantly happy life of the deceased. This undoubtedly would vary from case to case, depending upon the family environment, the members of the family, the health, and age of the victim, his outlook in life, the interest which his parents were taking in the boy, and the totality of circumstances tending to show whether the victim would have a predominantly happy life or a life of misery or a life of despondence or an insipid life. Even though it depends upon very many uncertain factors, the <ORG> has to take an overall picture and form its estimate though, to some extent, it must be based upon speculation. (2) The pecuniary loss sustained by the persons entitled to claim compensation as a result of the accident. In determining the pecuniary loss, say, the age of the boy at the time of his death, the age of the parents and the prospects of the boy contributing his earnings to the parents will have to be taken note of. In the case of a father and an only son, it is difficult to formulate a uniform rule that, because the father himself is carrying on business with affluence, there will not be any contribution by the deceased if he had not met with the accident. It cannot be said to be arbitrary or capricious to visualise that both the father and the son would have together pooled up their resources and income and augmented their wealth. The pecuniary loss will have to be evaluated with reference to several considerations and the pecuniary loss to the family will be the pecuniary loss to the mother herself on the facts of this particular case, when the family consists only of the father, the mother and the son. In some of the decisions, it is seen that the courts have taken rather a pessimistic view of the future prospects of the young boy who met with the accident, on the ground that no one can be certain about the child's future or correctly estimate his future pecuniary prospects in the view that the boy would have to pass through several risks and uncertainties, in his childhood and young age, and on that account, a moderate sum has been awarded as damages. In some other cases, courts have taken a more liberal view and have awarded damages under both the headings on the basis of predominantly happy life which the victim would have lived but for the accident, taken along with the fact that the boy was a bright boy and that the parents evinced great interest in shaping the career of the boy and in his prospects. If the value is to be ascertained with reference to the bright prospect of a predominantly happy life, it will at once be realised that that does not necessarily depend upon the wealth or status of the family alone. As <NAME> pointed out in <NAME> v. <NAME> 1962-1 All ER 257 at p. 264, "Wealth and fine physique clearly do not ensure happiness, nor do poverty or disablement necessarily entail unhappiness."

In <NAME> v. <ORG>, 1943-2 All ER 477 at p. 485 <NAME>, J. emphasising that 'life is our most precious asset' observed as follows--

"There, then, is the guidance; but one cannot forget that life is deemed by the law to be our most precious asset. The severest punishment that the law knows is that of depriving a man of his life; it is considered of greater value than liberty and to be a more severe punishment than depriving a man of his liberty for the rest of his natural life, which usually means at the outside, I suppose something under 20 years."

In <NAME> v. <NAME>, 1961-3 All ER 323 affirming the decision reported in 1960-3 All Er 677, a boy aged 20 months sustained serious brain injuries as a result of a motor accident and he became mentally unable to talk or to understand what was said to him. In the special circumstances of the case, the award of £.11,000 was confirmed by the appellate Court. In that case it was observed that the victim was entitled to compensation for loss of the amenities of life like the loss of opportunity to marry, earn a livelihood and to enjoy life. The fact that the father of the infant was an executive earning £.1250 per year was also taken into account. Lord <NAME> who tried the action and awarded £.11,000 as damages, observed as follows, at page 679:

"The infant plaintiff is, I think, entitled to something for what he has lost, whether he knows he has lost it or not, albeit that the amount may well be less than in the case of a person who has enjoyed life and amenities and knows that he has lost them. The trouble, however, is to put that into money. There are so many imponderables, especially in the case of such a young child. As far as loss of earnings is concerned, the considerations involved again cannot easily be put into pounds, shillings and pence. Here against, there are imponderables. What education would the parents have been able to give the child? If not, how far would the child succeed? What trade or profession would he take up and what would he have earned? There is no conceivable clue to that. The only guide, if it be any guide at all--and I do not think it is--is that his father is working in an executive capacity making, I am told, £.1250 a year. In addition, there are questions of taxation and other matters, but whatever view one takes as to eventual earnings, the figure must, in the case of such a young child, be heavily discounted.......... Doing the best I can in all the circumstances, I would award to this child a sum of £.11,000..............."

In the appeal from that decision, reported in 1960-3 All ER 323, <ORG>, while adverting to the difficult task in assessing the value of the loss of expectation of a predominantly happy life, observed that the assessment of such a claim involves an investigation in detail of the temperament and health of the victim, his expectation of life and his expectation of material prosperity. After referring to some of the decisions in England, the learned Lord Justice emphasised that the circumstances of that case must lead to the inference that the victim had been deprived of a positive measure of happiness, the test being the bright prospect of a predominantly happly life. At pages 332 and 333, while pointing out the proper approach of an appellate <ORG> in dealing with the award of damages, it was observed as follows:--

"The appeal is more difficult. The ingredients that go to make the final figure have been scrupulously weighed in the judgment. We can only alter it if we are satisfied that it is a wholly erroneous estimate of the damage, if we are satisfied that, broadly speaking there is only one reasonable answer to the problem and that the learned Judge has failed to give it. One cannot seek for precision or certainty in many cases which are tried by the courts in their anxious task of weighing imponderables. Often, there is a norm, whether established by common sense or reason or the convention of the courts. Then one can decide how great a departure from it justified the description 'wholly erroneous'. Here there is no such norm. Both counsel of great experience describe the case as unique. They can cite no comparable case among the many strange and unhappy injuries that have come before the courts.............. But one must award such a sum as represents, artificially, the gravity of the loss. It is hard to give cogent reasons for this figure or for that. One can merely assert. I myself would feel inclined towards a larger figure, but the learned Lord Chief Justice and my brethren all think otherwise. I can give no adequate reason to support a higher figure or to show that on figure is more right than the other. There is no norm by which one can say that this figure is right and the other wrong. To say in <NAME>'s words, 'I cannot argue I can only feel' may be permitted in a jury-man but it is rarely a sound foundation for a judgment. Here, the Lord Chief Justice has impeccably balanced all the relevant matters with sympathy and anxious consideration and arrived at a conclusion. One certainly cannot say that it was wholly erroneous. I would therefore somewhat regretfully agree with my brethren's view that the appeal must be dismissed."

With respect, these observations apply to the instant case 'which is unique' and we ourselves cannot give any cogent reasons for saying that some other figure would be more right than the figure awarded by the <ORG>. It is unnecessary to discuss the matter further; the appellate Court would be slow to interfere with the verdict of the <ORG>, as it is inevitable that in assessing the damages, elements of estimate and to some extent, conjecture and a balancing of chances and changes of fortune enter into the computation of the quantum. The appellate Court would interfere only if it is satisfied that the result reached was out of all proportion to the circumstances of the case and clearly capricious and arbitrary. In <NAME> v. <ORG>, 1968-1 All ER 518, while adverting to the difficult and invidious task of the Judge in ascertaining the damages, <NAME> at page 523 observed-

"The task is frequently perplexing, and its performance cannot be regarded as affording one of the most impressive examples of the exercise of the judicial function. Certainly it is one of the most difficult."

A reference to the discussion in the recent decision of <ORG> reported in <ORG> v. <NAME>, 1963-2 WLR 1359 = (1963-2 All ER 625), in which the decision in 1962-1 All ER 257 was approved, will show that the trend of later decisions is to limit the scope of the principle enunciated in 1941 AC 157 and that the award of damages is essentially a matter of opinion and experience and the court can pay due regard to 'the range and limits of the current thought.' In Salmond on Torts, 14th Edn. at pages 752 and 753, the learned author discusses the limits on the functions of an appellate <ORG> in the matter of award of damages and has summed up by saying that court would interfere if it said to itself (as observed by Lord <NAME> in <NAME> v. Coldair <ORG>., 1951-2 TLR 1226) 'Good gracious me--as high as that'. Taking an overall picture of all the aspects of the case and also bearing in mind that under S. 110-B of the Motor Vehicles Act, the jurisdiction of the <ORG> to award 'just compensation' is very wide and comprehensive, we cannot say that this situation envisaged by <NAME> L. J. has arisen in this case. Amongst other considerations, the <ORG> has awarded damages on the basis that the victim is likely to contribute a sum of Rs. 100 per mensem for about 45 years. It may be that one can take a view that the likely monthly contribution may be more and the period may be less, but it is not possible to be dogmatic in such matters. If an award of £.11,000 in the case of a child of 20 months has been upheld by the <ORG> of Appeal in England, we cannot say that the award of Rs. 25,000 in the case of a boy of 12 years is so excessive as not to be just within the meaning of Section 110-B of the Motor Vehicles Act. For all these reasons, we confirm the decision of the <ORG> and dismiss the appeal with costs.

11. Appeal dismissed.


<NAME>, J.

1. The petitioner, through this petition under Article 226 of the Constitution of India made three fold prayer:

(i) Not to auot work to respondent-Judges, whose kith and kins are practising in <ORG> or are working in Advocate Generals'office;

(ii) Direct the Senior Advocates elevated to the Bench, either to refund the fees charged with interest or direct the senior advocates of the petitioner's choice to argue his case free of any charges, and

(iii) Direction for transfer of Judges be made.

2. Succinctly concluding from the warp and weft of the petition for disposing the petition, the following facts can be woven, from the point of view of the petitioner. The petitioner averred that he engaged one of the respondents, to file a writ petition challenging the removel of his son from the post of a Judicial Officer i.e. Subordinate Judge. The respondent later elevated to bench and did not fiic the writ petition, and advised to wait, as he told the petitioner that since in view of talk he had with a named Judge who was against the petitioner's son, the petitioner would not get relief till the named Judge is on the Bench. It is averred that on his elevation, he got his brother and daughter engaged as petitioner's counsel on a payment of Rs. 7000, as the fee. in spite of the fact that he had already charged Rs. 18,000, - as his fee and no writ petition was filed by him. Vaguely filing of writ by the later counsel was admitted. Inactivity on the part of petitioner's counsel to gel an appropriate relief to petitioner's son. in spite of his getting reliefs to some other litigants was attributed. Lastly a bald assertion was made in the petition that the wards or relations of Judges practising in <ORG> are having roaring practice which is disproportionate to their merits.

3. The petitioner in a state of frenzy with a zeal to support his prayers made reference to various news items published from time to time. Speech of President of <ORG> for transfer of all Judges, statement reported to have been made by the ex Chief Justice, <NAME>. with respect to Judges" succumbing to local pressures, their wards building practice disproportionate to their merits, their wining and dining outside and their attending lavish parties was referred to in the petition. Reference with respect to 4 to 5 Judges was made out of 90 with respect to whom retired Chief Justice had made the alleged statement.

4. The petitioner attempted sorcery out of the reports published in various newspapers. Further expurgated version as put-forth by the petitioner is to the effect that Judges' relations and wards are having practice disproportionate to their merits. Paranormal sweeping allegations with respect to cholical approach, succumbing to local pressures with respect to all Judges, in spite of the fact that howsoever highly reputed one might have been about his independence, were made. Petitioner after quoting retired Chief Justice's statement, regarding some policy for transfer of Judges sought its implementation. It was not specified even remotely as to that the statement of the Chief Justice meant i.e. whether the policy of transfer of Judges was with respect to ones' who wine and dine or succumb to local pressure or was it for all irrespective of other numerous relevant factors. Further reference was made to the comments for setting up machinery for investigating the conduct of any member of judiciary, as well as providing code of conduct for Judges.

5. It may be noticed, at this stage that the petitioner during the course of arguments refused to even own the responsibility of making vague, reckless and irresponsible sweeping allegations. It was simply pleaded that the references made to the remarks made in various publications be expunged.

6. Country is of and for the people inhabiting in it. People of India by written constitution elected the democratic way of life for their governance and justice to all is one of the essential features in our set up. Creed of the Constitution, in view of the crafty nature of human beings, is to be ensured, through rule of law as it is the law and the law alone which ensures, safety and orderly functioning of society. It is through law that human relations are orderly conducted in a welfare State. Without law life would be cruel and the rule of might is right would prevail and it would be rule of jungle.

7. Respect for law, authority of <ORG> and other law enforcing agencies is the quit essence for peaceful living and progress of any civilized society. Civilized society is the substance of democracy itself which is the basic concept of our Constitution.

8. The mechanism evolved by the people for governing themselves is through a written Constitution. It basically provides three independent wings of the <ORG> viz. Legislative, <ORG> and <ORG>.

9. Keeping in view the working of each wing individually, the framers of the Constitution provided expressly and elaborately for the establishment and working of the judicial system. Reference may be made to Chapter IV, Part V for establishing judiciary. Further keeping in view the mixed federal structure of the system in view, <ORG> for the <ORG> is established by Part VI, Chapter V of the Constitution.

10. It would be expedient at this stage to take notice of the provisions and scheme of the Constitution for establishing and functioning of <ORG>, the highest judicial body in the States. Article 216 provides the mechanism for establishment of <ORG>. Article 217 has taken care of the manner of appointment of its Judges and the conditions of the office of a Judge. Penultimate provision which would come up for consideration in later part of the judgment would be Article 222 by which powers of transfer has been conferred in President of India. It runs as under:

"Transfer of Judges from one <ORG> to another:

"222 (I). The President of India may, after consultation with Chief Justice of India, transfer a Judge from one <ORG> to any other <ORG>.

(2) when a Judge has been or is transferred, he shall during the period he serves, after the commencement of Constitution (Fifteenth Amendment) Act, 1963 as a Judge of other <ORG>, be entitled to receive in addition to his salary such compensatory allowance as may be determined by <ORG> by law and, until so determined such compensatory allowance as the President may by order fix".

11. Jurisdiction of <ORG> has been looked after by Article 225. Power of superintendence on subordinate <ORG> or tribunals functioning within its territorial jurisdiction, has been conferred on <ORG> by Article 227. Chief Justice has the authority to deal with the employees of the <ORG> and subordinate <ORG>. Other commitments for the post of a <ORG> Judge has been provided expressly in the written Constitution itself.

12. The founders of constitutional system considered the independence of judiciary as cardinal backbone for efficacious governance for the people. It cannot be denied that judiciary is the sentinel for the proper working of the constitution which is a must for efficacious democratic system of governance. It is a part of the basic structure of the Constitution. Though copious provisions have been made in the Constitution for ensuring independence of the judiciary and securing it, yet it has to be guaranteed and secured by public opinion and by standard of conduct maintained both by <ORG> and the <ORG>.

13. It cannot be denied that paramount factor for proper functioning of the Constitution is that each functionary of the Constitution should remain within its limits. It can basically be attained normally by self imposed discipline and restraints. It stands established customarily by usage as well as jurisprudentially or conceptually or statu-torily that judiciary must not usurp the functions of other wings of the system of governance. It should not make an attempt to impose its philosophy for standards.

14. Basically primary functions of the judiciary involve the application of law to facts, though at times it may be difficult to draw a line between judicial decision and Administration. It is to declare law, apply it with a view to observe check on the Admins-trative authorities from exceeding their powers, direct the performance of the duties owed by the public officials to the citizens and enforce statutory benefits available to the citizens. It is the function of the judiciary to intrepret the mind of the Legislatures, their intention and implement the same irresspec-tive of the consequences particularly in view of the fact that in democratic system of governance it is legislatures who are answerable to the people. 1 may hasten to add that while administering justice, facts, law and circumstances of the case would have to be taken care of by the functionaries of the judicial system.

15. The judiciary on account of the morsel information available to it and further being insulated from the public is the most inapt to say what the law should be though in some exceptional cases, it may be tempted lo meet the demand of the changing society or with a view to do substantial justice, may cross the thin line that demarcates the areas of operation of the three wings. I may hasten to add (hat utmost care and caution must be observed before pronouncing of the functions of any other wing of the Government while doing justice in accordance with Jaw laid down. In case <ORG> comes to the conclusion that it cannot go beyond certain limil provided either staiutorily or othewise it must restrain itself and leave it to the Legislatures to devise the means to meet the needs of changing society.

16. I may venture to state that interpretative principles established by catena of authorities are: (i) That supply of words in a statute to suit a particular course of action acceptable to a particular class of persons is not the purview of judicial functions. One can not recast the constitution according to one's own intellectual yard stick or one's own unconscious predictions as to what an ideal Constitution should be, (ii) That courts can not presume that <ORG> has either committed error or mistake or omitled something which is very necessary. It is for the other Constitutional wings to remedy the defect, if any, found in provisions administered by the constitution, (iii) Indirect way/ method of doing an act is not permissible, (iv) Affirmative words often in their operation negative objects other than those affirmed.

17. Constitution by Article 222 provides a wide power to the President to transfer a Judge in consultation with the Chief Justice of India but at the same time transfer of all Judges log stock and bar has been kept at bay and I may say with an object in view as general transfers of <ORG> Judge would be fraught with danger and vice of discrimination which may result in rendering the independence of judiciary as a mere paper slogan.

18. There cannot be a second opinion that the institution of judiciary took time immemorial to establish. Its functionaries working independently without favour and fear within the parameters established by law, tradition, usages, customs etc. earned faith of the public for the institution of being trusted. Mass scale transfers may imperil the entire edifice of the system as such. Even <ORG> recommended appointment of only 1/3rd Judges from outside to combat the ills crept into judiciary. Even this thought or policy is open to debate which again is within the purview of the <ORG>.

19. Normally, it is expected that at the time of appointment of a Judge his fitness, capability, integrity, parochial tendencies, creed by caste and other local links, affiliations, educational qualifications, number of years put in practice, nature of practice, field of specialisation, extent of practice, financial resources, association with political parties, status in society, other curricular activities, his relationship with practising lawyers of <ORG>, relationship with silting Judges of <ORG> or <ORG>, his involvement in criminal cases, his employment and his choice of <ORG> in which to be appointed as Judge etc. is considered and kept in view. The recommending authority is expected to take into consideration, before recommending a person for elevation his competence which includes his equipment in law, perception, ability to deal with legal and other complex problems, grasping capacity, his judicial potentiality/maturity, poise and equanimity of temperament, subscription to Constitutional values, capacity to persuade and be persuaded, patience, team spirit, objectivity, analytical mind and fairness in his dealings with others. It is further expected from the recommending and appointing authorities that they would take care of the factors like integrity and character, reputation in legal fraternity and society, his antecedents, his suitability for the office of a Judge, apart from other considerations like need of the <ORG> for a Judge of particular expertise and maintaining the conventional ratio between appointments from the <ORG> and serving Judges.

20. Above narrated factors are not only required to be kept in view by the recommending authorities alone, they are to be given effect to by all the authorities involved in the process of the considering the names of persons for appointment of Judges viz. the Chief Justice of <ORG> concerned, Chief Justice of India and the President of India.

21. People's faith in independence of judiciary is of paramount consideration in public interest or interest of society. To protect the faith of the people in the" independence of the judiciary developed, established, accepted by a consistent tradition from time immemorial, is the avowed duty of every one of us, especially of lawyers. Judges. Legislators, and the Executive. In spite of occupational hazards beset in the life of the Judges' independence of thought, even handed justice without fear and favour is the creed of the Judges. Reputation is as important as a person actually being above board and it includes capability and integrity. Conduct of a Judge is the only safeguard for the reputation of a Judge. Society or the people at large (issuing intellectual honesty, moral honesty, and his eagerness to do justice. Judge is expected to be independent and above board in all respects.

22. It is discernible from the provisions of the Constitution referred to in the earlier part of the judgment that the Constitution has provided an elaborate and detailied scheme for the functionaing of the judiciary right from the stage for consideration for appointment of a <ORG> Judge till his retirement. Basic parameters for the working of judiciary keeping in view the paramount consideration and absolute necessaily of independence of judiciary has been spelled out by the Constitution and the Laws made in this regard from time to time. Constitution itself expressly prescribes the authority who can transfer a Judge in public interest. Reference may be made to Article 222 of the Constition of India.

23. If I may venture to state that with eroded old cautiousness and respect for authority, enlightened generation, with some grain of truthfulness in their suspicions have raised eye-brows about the conduct of the peers of justice, their declining moral values, traditions, puritan standards, self sufficiency and lack of hard work which in turn is destorying the faith of people in the system. It can not be denied that personal stories are in circulations, though there may be canards still these are in circulation. I hope no complaints regarding integrity are made with irresponsibility without realising that these would imperil the entire edifice. Social conditions are fast changing and the changes are even beyond comprehension. Individuals may some time consciously or unconsciously behave in a manner that brings down their own stature and image as also that of the institution to which they belong. But every fact does not lead to logical inference and it will not be prudent to draw generalisations regarding independence of Judges as a community from isolated individual instances. Judiciary has no machinery to investigate, particularly when democracy has released creativity of all kinds including criminal and added new desires, ambitions and frustrations. Judiciary is forwarding towards disintegration under the exceptional conduct of unbecoming of a Judge, provided by an erring member of a bench, which is for either astrology or the person concerned to decide. It cannot be denied that some of us have by our own conduct either innocently or consciously provided opportunity to the people at large to throw sullage and comment as they feel like. It may be draconian assumption about the impartiality yet it does tinker with the principle that justice should not only be done but should also appear to have been done. There is no quarrel with the concept that in order to inspire confidence reputation regarding integrity is as important as a person's actual capacity of being above board. Imputations are being made with impunity with respect to highest dignitaries in the judicial system. It is society's expectation from Judges that like Caesar's wife they should be above suspicion. Conduct of Judge is always under a microscopic examination, microscope being held by the people, the persons concerned with the system. This in my view is a very small price which one has to pay for the respect, society showers on Judges.

24. Echoing views which were expressed some years ago and which have not lost their efficacy today. One cannot believe that one knows all and absolute truth. Justice cannot be bought or sold nor administration of justice can be equated with ordinary commercial ventures.

25. We can only notice what has been observed above and no more.

26. We find support in our observations from Maharshi Avadheshv. State, AIR 1991 All 52 wherein it was observed :

"We can only notice the argument of the petitioner but in view of the constitutional status given to a Judge of <ORG>, we cannot do anything more. The Constitution deliberately does not prescribe any code of conduct for the Judges and constitutional authorities in the hope that they will not behave in a manner that will bring down their own stature or of the institution to which they belong-required to act to enhance it. This is all we can observe in respect of the anxiety expressed by the petitioner". It was further observed that no direction can be issued.

It was further observed that:

"The issue in our opinion is entirely administrative and political. Courts have no way to bring parity. Courts can issue only such directions of which it can supervise compliance."

27. Transfer of Judges is an issue engaging the mind of public, the members of the judiciary and one and all concerned with independence of judiciary. Even if it has not always been so the issue is now at-the heart of the problems facing our justice system as prescribed by <ORG>. Balancing exercise has to be made between the principle that justice should not only be done but must appear to have been done and the independence of judiciary and the principle that justice must appear to have been done cannot be streched too far.

28. Government in aweifare <ORG>should and must be sensitive to the sentiments of its people. Things would get mustier if pushed under carpet. <ORG> should come forward to end animal fear in public mind which is spreading apathy and breeding disrespect for the system. The public policy neither remains static nor can be in fixed mode. It is an edged word of craft, which is to be exercised in public good. There is no gainsaying dimensions and the society at large has a stake in impartial even handed justice. In such a situation <ORG> should not sit idle doing nothing except making paper plans. The institution of justice is bom and reared on the faith and traditions established in centuries. Persons like justice <NAME> have lost their lives to maintain the rule oflaw and independence of its enforcing of declaring agencies. After satisafactorily working judiciary within the parameters set by traditions, customs, usages, statutes framed on the basis of established traditions and upheld from time to time for more than forty years and having evolved the fine institution the same should not be permitted to be lost by permitting suspicious persons crying wolf and raising fingers with impunity.

29. To attain the independence of judiciary the faith of the people in its independence has to be retained not by enacting statutory laws but by all other means at our disposal. The principle of justice not being only done but also appearing to have been done is one of the conceptual aspects which has to be balanced with independence of judiciary. It has been conventionally, pre-cedently and customarily accepted that in the vicious circle of checks and balances of various constitutional organas after all some one has to be trusted, so let it be Judges, only persons appointed have to be fit to hold such a high constitutional post and this fitness includes capability as well as integrity.

30. A Judge would not be worth' the name or the office he holds, if he is having shakable nerves or is timid. It would be incorridously demeaning to attribute that a person occupying such an exhorted office would dabble in patronage of his wards or that of his colleagues. This one has to see from the point of view of an ordinary prudent person and not from the point of view of extremely suspicious person or the one who for reasons best known to him assumed that but for him none else is honest and capable to uphold the inden-pendence of judiciary. Should the entire judiciary be put in the dock for the suspicions entertained by persons either because of their failure in getting the desired result in their litigation or for political reasons or for frustration of any other nature. In our considered view such suspicions should not be encouraged, rather should be curbed as these may be underminiing the confidence of the public in the institution pose danger to the system itself.

31. Cover attempt to malign the judiciary is implicit in the averments made in the petition. It cannot be presumed that everything rotten and every one is not fit to hold office of authority or trust or service of public nature. It is the Judges who have to act as bastion of rights and freedom of people.

32. There is no denying the fact that since the highest government officials' acts are subject to judicial review and correction, which they violate any legal obligations, judicial system is a bull-work of liberty. Upholding and smooth working of the constitutional or rule of law depends basically on the independence of judiciary which is thus vital for the nation's interest and is required to be protected.

33. Since law binds Judges as well as the judged ones, judiciary should be trusted particularly when powers of judicial review are not unbriddled horses as Courts are bound by procedures, rules, precedents and conventions narrowing down the field of discretion,

34. It is the pious duty of all sections of the society, especially lawyers and other wings of the government machinery to place the Judges beyond the pale of fear or injury which can be inflicted for rendering justice without fear and favour.

People have established for their governance the judicial sustem which they thought would be most conducive to their happiness. Society as a whole and lawyers in particular have to inculcate implicit faith in the presumption of judicial rectilude in every soul that wears robes though it cannot be denied that it has to be earned by the members of judicial fraternity by their act and conduct, express and implicit,

35. Transfer is fraught with all dangers hampering independence of the judiciary and making the Judges vulnerable to the designs of various agencies which are out to destroy the institution for reasons best known to them. In this process the priority of maintaining the independence of judiciary would tragically suffer. It would then be free for all and anybody would with impunity throw sullage on an independent Judge who will not be able to meet it on account of his isolation and the conduct desired from him professionally i.e. of keeping himself aloof from the society as such.

36. The Constitution has by Article 222 provided for the transfer of Judges from one <ORG> to another. In the scheme it has been provided that the President in consultation with the Chief Justice of India, can transfer a Judge of a <ORG> to another <ORG> with such compensatory allowance as determined by the <ORG> by a law. No doubt the power of transferring Judges of a <ORG> to another vests with the President but it has to be exercised objectively after consideration of all relevant facts and no en masse transfers can be ordered as is sought by the petitioner. The power of transfer has to be exercised with extreme caution keeping public interest in view as also the sufferance of the damages the exercise is likely to cause to the image of the Judges transfered. The only earning ornaments of a <NAME> is his reputation of being independent and above board which further can also be said to be the only professional satisfaction which one is expected to retain in order to maintain his respect in public which involves not only his real independence of mind but also the faith which the public have about his independence in every respect.

37. The ground realities cannot be losf sight of and may be here and there some lapses on the part of a Judge might have given rise to some suspicion. But simply because some act of an individual Judge has given rise to suspicion, attempt should not be made to damage the faith of people in the independence of judiciary. Interest of an individual has to give way to the interest of society. For an orderly society faith in the independence of the judiciary is of paramount, consideration. Undoubtedly the public is interested in the administration of justice and if in the course of administration of justice some one of us has faultercd, the Constitution has provided a sufferance viz. impeachment for major lapse and transfer for minor lapse.

38. We may venture to state that in view of the averments made, we cannot even remotely assume any basis for the assumptions made by the petitioner nor there is any public interest involved. The petitioner appears to be one of the frustrated lot which is clearly indicated from the fact that he is an ex-clerical employee of <ORG> whose son has been dismissed from the post of a Judicial Officer at the thrcshhold of his career.

39. The dignity of the <ORG> Judges cannot be permitted to be ridiculously and violently hurt by a person who claims to be acting as probono publico but who in fact has been provoked by his personal injury. We cannot refrain ourselves from adding that few heads of [he judiciary responsible for maintaining the purity of judiciary might have succumbed to particular views because of various stories prevalent on the eve of their retirement and might have gone to the press making sweeping allegations, polluting the very fountain of justice of which they themselves were the guardians. We find no reason that because some one holds different views on a subject he must brand the others as the one's yielding to extraneous considerations especially when the present judiciary is their successor in whose appointments they were the major participants. We find no cogent reason for persons preceding the present judiciary stilling, their successors and making an attempt to scandalise them. Kith and kins of Judges of a <ORG> practising in the same <ORG> is not something new or of recent origin. It is a century old tradition. It is not unknown that even where sons had appeared before their fathers, the flag of independence of judiciary was kept high. The present tirade against the judiciary and the motivation for denigrading the same is beyond us to decode.

40. A mandamus can be issued to act in accordance with law or statute or statutory rules but discretion cannot be regulated by declarations or declaratory, prohibitory or certiorari writs. For seeking transfer of a particular individual Judge, the petitioner is at liberty to approach the appropriate competent authority. Transfer of Judges of <ORG>, in our opinion is not within the purview of our jurisdiction. The Court can grant only such reliefs which it can get implemented or supervise its compliance and implementation. Relief in the sweeping nature cannot be granted.

41. We are afraid that we cannot on the basis of the suggestions made in the writ petition even assuming them lo be true, though we have, no doubt that these are unfounded, interfere in exercise of writ jurisdiction. Charge of partiality being a serious charge a probe on its basis cannot even be thought of on the basis of allegations which are wild and reckless. In view of the bald averments made on assumptions and presumptions, it is wiser to abstain from interference and so we dismiss the petition with a strong note of disapproval. We hope that the conduct of the petitioner viz.. of making such reckless averments which is nothing short of attempt to create chaos in the society by instigating the people to lose faith in the judiciary shall be condemned and curbed with strong hands by one and all, who are interested in the orderly society and have faith in democracy, which is the basic creed of our Constitution.

42. Before parting with the judgment, we may express our pious wish that the <ORG> would implement the policy of appointment of Judges if at all to refurbish the declining image of the judiciary.

43. In view of observations made above, the writ petition is dismissed.

44. Petition dismissed.