ivil Appeal No 778 of 1988
From the Judgment and Order dated 58
1987 of the Assam High Court in Civil Rule No 372 of 1982
Anil Dev Singh and P Parmeshwaran for the Appellants
AK Ganguli IA Ansari and Ms Mridula Ray for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal is by special leave and is directed against the judgment of the Division Bench of the High Court of Guwahati setting aside the order of conviction and the punishment of imprisonment as also the order of dismissal from service inflicted on the three respondents following a finding of guilt by the General Court Martial
Naik Subedar Baleshwar Ram was a Junior Commissioned Officer of Amaribari Supply Point in the far eastern sector and was in overall charge of the said supply point
Around 530 pm on June 19 1980 he directed Driver Rattan Singh to park an army vehicle near the ration store for loading dry ration
Respondent Ramji with the help of one labour from civilian side loaded the dry ration in the vehicle whereafter Baleshwar Ram directed the truck to be taken towards Balipura
Respondent No 1 sat in the front seat in civil dress while respondents 2 and 3 sat behind the body of the truck
By the time the vehicle reached Balipura it had become dark and respondent No 1 ordered the driver to take the vehicle towards Tezpur
When the vehicle reached the outskirts of village Eatavari respondent No 1 directed the driver to slow down and turn the vehicle towards the right and take it off on a narrow kutcha track not leading to Tezpur
The driver of the vehicle was not prepared to take the vehicle on the kutcha road but upon respondent No 1 s insistence the vehicle was so taken and on the kutcha track the vehicle bogged down mid way and could not be taken further
In the meantime some civilian persons gathered there
The respondents 2 and 3 got down and started unload ing some ration until they were prevented by the civilians present there
Respondent No 2 21 slipped away from the place
The civilians being suspicious informed the civil police who in turn handed over the matter to military police for investigation and necessary action
After due inquiry a disciplinary action was initiat ed and inquiry under Rule 22 of the Army Rules was undertak en
A General Court Martial followed where definite charges were given and ultimately on the basis of summary evidence available all the three persons were found guilty convicted and sentenced
Order of dismissal from service followed
The decision of the Court Martial and the order of dismissal were challenged before the Guwahati High Court in a writ petition
The High Court found that as against re spondents 2 and 3 there was no inquiry under Rule 22
The High Court relied upon the decision of this Court in Lt Col Prithi Pal Singh Bedi vs Union of India  Ors 1982 3 SCC 140 and held that the proceeding before the General Court Martial was in violation of the mandatory provisions of the Army Rules
On that finding the High Court set aside the order of conviction and punishment of imprisonment as also the order of dismissal from service
It is a fact that as against respondents 2 and 3 there was no inquiry under Rule 22
It is not disputed that the Commanding Officer of the Unit had stated before the General Court Martial that he did not find any case against respond ents 2 and 3
The summary of evidence recorded in the Gener al Court Martial has been made available to us and we have read the same
The conclusion reached by the Commanding Officer seems to us to be a reasonable one
We do not think there is any justification to set aside the order of the High Court so far as respondents 2 and 3 are concerned
So far as the case against respondent No 1 goes there was an inquiry under Rule 22
The point raised on behalf of respondent No 1 in the High Court was different from the case made out by respondents 2 and 3
It had been pleaded that the inquiry under Rule 22 as against respondent No 1 related to an offence which came under section 63 of the  namely conduct prejudicial to good order and military discipline while the charge he was called upon to face in the General Court Martial was one of theft punisha ble under section 52a of the 
We have seen the evidence recorded in the inquiry under Rule 22
It is a fact that the allegation at the stage of inquiry under Rule 22 was described as prejudicial to good order and military discipline but the basic facts said to constitute that allegation were nothing else than removal of the foodstuff which constituted that charge of 22 theft
It is therefore clear that no prejudice has been caused to respondent 1 and the inquiry under rule 22 and the trial before General Court Martial were over the self same facts
In these circumstances we are inclined to sustain the judgment of the High Court in regard to respondents 2 and 3 but we would reverse the judgment in regard to respondent 1 and restore the order of the General Court Martial
Respond ent No 1 has already been dismissed from service
He has undergone more than 9 months of the punishment out of one year of imprisonment
There has been a gap of several years since he has been released from jail initially on bail and Later on the basis of the judgment of the High Court
In these circumstances he need not be taken into custody for suffering the balance period of the sentence
The appeal is partly allowed
There shall be no order for costs
TNA Appeal allowed


Summary:
The respondent s predecessor in interest received notice under the East Punjab Utilisation of Lands Act 1949 for bringing his uncultivated land under cultivation
Thereafter he sold a portion of his land by executing two sale deeds in favour of two different vendees for the purpose of utilising the sale proceeds to reclaim the remaining land
The re spondents fried suits for setting aside the sales contend ing that the alienation was made without legal necessity which were dismissed by the Trial Court
The first appeals were dismissed by the Senior Subordinate Judge
On second appeal a learned single judge of the High Court held that the sale in favour of the first vendee was for legal necessity only to the extent of Rs1O00 and the sale in favour of the second vendee was entirely without necessity
On a further appeal the Division Bench reversed the decision of the single judge with regard to first vendee holding that the sale was for necessity but upheld the decision with regard to second vendee holding that the sale in his favour was without legal necessity
Hence this appeal by the second vendee
Allowing the appeal this Court HELD 1
The sale in favour of the second vendee was a valid sale and is not liable to be impugned by the represen tatives or the successors in interest of the vendor
774E 770 2
Under the provisions of the East Punjab Utilisation of Lands Act 1949 a notice could be given requiring a land holder to bring uncultivated land under cultivation after reclamation within a period of 30 days from the date of issue of a notice in that regard
Failing this the area could be resumed by the Government and leased out to some other cultivators or society for cultivation for a period of at least 8 years
773B 21 A land owner receiving a notice under the said Act has two options before him
He can either own his helpless ness to reclaim the land and permit it to be leased out by the Government to other persons for cultivation for a sub stantial period
Or he may decide that he should make an attempt to make atleast a part of the lands fertile by selling a portion of the land and reclaiming the rest with the help of the sale proceeds
A bona fide decision taken by him to exercise the latter option cannot be said not to be an act of good management
773G H 774A 3
If the sale in favour of the first vendee in the same circumstances was a valid sale it is very difficult to say that the sale in favour of the second vendee was not
The necessity for both the sales was the situation arising out of the receipt of the notice under the East Punjab Lands Utilisation Act
In fact the findings of the Trial Court and the first appellate court on this issue were findings of fact which did not call for interference by the High Court
774A B